Dilip Bharali vs State of Assam

N.C. Jain, J.—This Appeal has been filed by the Appellant against the judgment of the learned Session Judge. Golahat dated 2.4.1996 in Sessions Case No. 13 of 1994 convicting the accused Appellant u/s 302 I.P.C. and sentencing him to undergo rigorous imprisonment for life. He has been further sentenced to pay fine of Rs. 2,000 and in default of payment, he has been further sentenced to undergo rigorous imprisonment for one year.

The Counsel for the Appellant at the very out set submitted before us that he does not propose to argue the case on merit and that guilt of the Appellant is proved beyond reasonable doubt not only by the statement of the P.W. 1 who is an eye witness to the occurrence but by other prosecution evidences as well. He has, however, submitted that the present case falls u/s 304 Part II of the I.P.C. and that the offence of the Appellant be converted if under said section.

We have given our thoughtful consideration to the argument of the counsel of the Appellant and we are inclined to agree with him. We have also gone through the statement of the Doctor who performed the post-mortem examination and the Post-Mortem Report. The Doctor, P.W.-11 found one penetrating cut wound in the middle part of the left chest of size 2" x 1" x depth of the chest. Death in the opinion of the doctor was due to shock and intrathorasic haemorrhage, as a result of the injury sustained by the deceased. He did not state that the injury was sufficient in the ordinary course of nature to cause death. Even according to the eye version account the deceased was alleged to have been given only one blow. The knife which was recovered find which was rather produced by the accused himself before the Police was of the size of 9" length. The size of the injury shows that the blow was not inflicted with a heavy force, otherwise it could have caused bigger injury particularly when the accused was a young College going boy. If the accused intended to cause death he could have given the injury with a greater force. There was nothing to prevent him to give more blows. It appears to us that the accused never intended to cause the death of the deceased, in some what similar circumstances the Hon''ble Supreme Court in the case of single blow has converted the offence u/s 304 Part II in Laxman Kalu Nikalje Vs. The State of Maharashtra, and in Mavila Thamban Nambiar Vs. State of Kerala, In any case, the present case is on the border line between the murder and culpable homicide not amounting to murder and therefore the Appellant is entitled to the benefit of reasonable doubt.

Following the law laid down by the Hon''ble Supreme Court and in view of the facts and circumstances of the present case, we convert the conviction u/s 304 Part II of the IPC from 302 I.P.C. and sentence the accused, to undergo rigorous imprisonment for a period of five years. We, however, enhance the fine to Rs. 5,000 (five thousand) which if recovered be paid to the family of the deceased. In default of payment of fine, which be deposited with the Sessions Judge, Golaghat within a period of three months from today, the accused shall further undergo rigorous imprisonment for one year.

For the reasons recorded, the Appeal stands partly allowed.