Lakheswar Barua vs State of Assam

A.H. Saikia, J.—This Jail appeal has been directed against the impugned judgment and order dated 12.1.2000 passed by the learned Sessions Judge, Tinsukia in Sessions Case No. 71(T) of 1996 convicting the accused appellant u/s 304 Pt-II IPC and sentencing him to suffer rigorous imprisonment for 7(seven) years and to pay a fine Rs. 500/-, in default to further imprisonment for 2 (two) months.

I have heard Ms. Rita Borbora, learned Amicus Curiae and Mr. P.C. Gayan, learned P.P. Assam.

The prosecution case as found by learned Sessions Judge is that on 15.11.1995 deceased Mulendra Moram had engaged a labourer viz. Sonar Singh to cut bamboos from his land behind his house and the said labourer started cutting bamboos, when accused Lotik Baruah @ Lakheswar Baruah accompanied by his two sons viz., Chandra Baruah and Badan Baruah asked the labourer to stop cutting the bamboo and instructed him to call Mulendra Moran. Sonar Singh went to call Mulendra Moran and on getting the information, Mulendra Moran went to the spot to enquire from the accused persons the reason for raising protest. As soon as Mulendra Moram reached the place, accused persons attacked him with Dao and lathi. All the 3 accused assaulted him causing grievous injuries on his person and on hearing his cry, his wife viz. Pateswari Moram and niece Renju Moran ran to the spot and saw accused persons giving repeated blows with Dao and lathis on Mulendra Moram who fell down on the ground. On arrival of the witnesses the accused persons fled away. The wife and niece of the deceased brought him to his house and then his brother Labon Moran also came who managed to shift the injured to hospital. But after arrival at hospital the injured succumbed to the injuries. Labou Moran lodged F.I.R. before the death of the deceased and thereupon police started investigation. During investigation police visited the place of occurrence, examined witnesses and on receipt of information about the death of deceased, inquest was made over the deed body at Digboi Hospital and the dead body was sent to Assam Medical College Hospital for postmortem examination. On completion of investigation and collection of postmortem report, charge-sheet was submitted u/s 302/34 IPC and thereupon learned Sub-division Judicial Magistrate (Sadar), Tinsukia, committed the case to the Court of Sessions. The trial court on perusal of the records and the documents submitted before it, framed charges u/s 302/34 IPC against the three accused persons. But during the trial the accused Chandra Baruah jumped his bail and the record reveals that after exhausting of all process including proclamation and attachment, accused Chandra Baruah has been declared absconder and the trial continued against the remaining two accused Lakheswar Baruah, the appellant and Badan Baruah.

During the trial the prosecution examined as many as 8(eight) witnesses including the doctor Rupak Kumar Gogoi, P.W. 6. On proper consideration and appreciation of the evidences so adduced on behalf of the prosecution, the learned Judge found that the offence committed by the two accused persons did not fall u/s 302 IPC but fell u/s 304 Pt-II IPC holding that the said offence was culpable homicide not amounting to murder and accordingly both the accused including the appellant were convicted u/s 304 Pt-II IPC. But considering the age of the other accused namely Badan Baruah the learned Sessions Judge granted him the benefit of Section 360 Cr.P.C. and released him under probation of good conduct for two years on execution of bond of Rs. 10,000 with one surety of the like amount.

As regard the sentence of the appellant, the learned Judge giving due consideration on the age of the accused who was 58 years of age at the time of occurrence and the circumstances in which the occurrence took place, sentenced him to suffer rigorous imprisonment for the period as mentioned above.

I have carefully gone through the evidence, particularly the testimony of P.W. 1 Pateswari Moran, PW 2 Ranju Maran, P.W. 3 Labon Moran and P.W. 5 Apurba Moran and also gone through the medical evidences so adduced by P.W. 6, the doctor who did autopsy on the dead body of the deceased Mulendra Moran. P.Ws 1, 2 and 3 were the wife, niece and brother of the deceased Mulendra Moran respectively. Both P.W.1 and P.W. 2 were also eye-witnesses of the incident.

P.W. 1 in her deposition stated that while she was working in front of her house, her husband, the deceased, went to the back side of their house where the occurrence took place and immediately thereafter she heard her husband''s cry and ran towards the back side of their house. On her arrival thereon, she found that three accused persons including the appellant were assaulting her husband with dao and lathis on the land of the accused persons adjacent to the boundary of their homestead. She saw her husband falling down on the ground and the accused fled away taking their weapons in their hand. Equally P.W. 2 also deposed that while she was sweeping her compound she heard the cry of the deceased and rushed towards the place of occurrence following P.W. 1 and also saw the deceased being assaulted by three accused persons including the appellant with dao and lathis. According to this witness all the three accused were armed with dao and lathies and all of them jointly assaulted the deceased who was her uncle. Noticing her and her aunt, P.W. 1, the accused persons fled away. On scrutiny of the testimony of these two witnesses it appears that there was a perfect corroboration in their evidences and the same needs approval of this Court.

So far the evidences of P.W. 3 in concerned, the same is also found to be corroborative with those of P.W. 1 and 2. According to him, on hearing hue and cry of P.Ws. 1 and 2, he ran towards the house of his brother - deceased and on reaching thereon, he found his brother lying with serious injuries. He further deposed that the deceased was conscious and told him that the accused persons including the appellant assaulted him. On his request to shift him to Hospital, this witness arranged vehicle and tracer by going out in his cycle and thereafter the deceased was taken to the Hospital for his treatment. But the deceased succumbed to his injuries P.W. 5 also deposed that though he did not see the incident, he accompanied the deceased to the Hospital on being informed by his uncle P.W. 3 and in the Hospital before deceased''s death, he heard that the deceased was murmuring with the words "maternal uncle why did you assault me, I was not at fault."

The medical evidence also goes to show that the deceased suffered as many as nine injuries out of which six were incised wounds and all the injuries were antimortem and homicide in nature. When incised wound were caused by sharp cutting weapons, other injuries were caused by blunt weapons. The doctor opined that the cause of death was due coma resulting from head injuries.

On careful appreciation of those evidences and also going through the impugned judgment, it is found that the prosecution established its case beyond reasonable doubt against the accused appellant u/s 304 Pt-II IPC and accordingly I fully agree with the findings of the learned Sessions Judge who succinctly; discussed the entire evidences of the prosecution in proper and true perspective and accordingly this court is of the considered view that the impugned judgment deserves no interference. The conviction of the accused appellant u/s 304 Pt-II IPC is hereby upheld.

However, taking into account the age of the appellant who is by now about 62 years, as stated by Ms. Borborara, learned Amicus Curiae and also considering the date of occurrence which took place on 11.5.1995 i.e., 8 years ago, this Court does propose to reduce the sentence of 7 years to the period already undergone by the appellant to be the period of conviction. It is stated at the bar that the appellant was arrested on 12.1.2000 on the date of pronouncement of the judgment. That being the position, it appears that the appellant is behind the bars for a period of more than 3 years and the said period undergone by the appellant is hereby held to be the sentence for conviction of the appellant u/s 304 Pt-II IPC. Such sentence for the period undergone has been awarded relying on a decision of the Apex Court in K. Ramakrishnan Unnithan Vs. State of Kerala, In the said case their Lordship while convicting the appellant u/s 304 Pt-II after setting aside his conviction u/s 302 IPC, considered the time of incident which took place in 1985 more than 13 years ago and sentenced the appellant accordingly for the period undergone which was about four years.

Consequently the appellant/accused person is set at liberty, if not wanted in connection with any other case, forthwith. The sentence and fine as indicated in the impugned judgment dated 12.1.2000 is hereby quashed. Sent back the records immediately.

Before parting with the case, this Court would like to put on records its gratitude to Mrs. Borbora for her sincere service rendered during the hearing of this case as Amicus Curiae. She shall be entitled to her usual professional fees as permissible under the law.

With the above direction and observation this appeal is disposed of.