Sabi Mura And 2 Ors vs State Of Assam And Anr

Mir Alfaz Ali

Heard Mr. F.H. Laskar, learned counsel for the appellants and Mr. B.B. Gogoi, learned Addl. Public Prosecutor for the State.

This appeal is directed against the judgment and order dated 09-01-2018 passed by learned Addl. Sessions Judge, Sivasagar in Sessions Case No. 1(S-S)/2014. By the said judgment, learned Sessions Judge convicted the appellants u/s 304 Pt.-II IPC and sentenced them to imprisonment for seven years and fine of Rs. 20,000/- each with default stipulation.

As per prosecution case, on 15-11-2013, at about 8 O'clock at night, when the victim Dhaniram Tanti went to "pucca" line for a social visit, the accused appellants Sabi Mura, Biswajit Mura and Ajoy Mura @ Bhaiti along with others assaulted the victim. On the next day, he was taken to Amuguri Dispensary, where the doctor advised to shift the injured to Dibrugarh Medical College. However, the victim Dhaniram died on 07-11-2013. After death of the victim, Nimai Tanti(PW 1) lodged the FIR(Ext. 1), on the basis of which, police registered Amuguri P.S. Case No. 180/2013 under Section 147.148/149/302 IPC and commenced investigation. During investigation, the inquest report on the body of the victim was prepared, and the body was sent for post mortem examination. The post mortem examination was conducted by PW 6, Dr. Ranjit Kumar Gogoi.

PW 8, Dr. Ranjit Kumar Gogoi, who conducted the post mortem examination on the body of the victim found the following injuries :-

"A bruise mark seen on the right cheek below the right eye. On dissection the internal organs were found pale and the liver was found ruptured in the right lobe. The liver is moderately enlarged and yellowish. Peritoneal cavity is found to contain bloody fluid. Findings were ante-mortem in nature."

In the opinion of the doctor, the death of the victim was due to syncope as a result of the injuries sustained by him in the liver and the injury was caused by blunt object.

On completion of investigation, charge-sheet was laid against the present appellants under Section 302 IPC read with Section 34 IPC and eventually the appellants stood trial.

In course of trial, prosecution examined 15 witnesses to establish the charge. On appreciation of evidence, learned Addl. Sessions Judge convicted the appellants u/s 304 Part-II IPC and awarded sentence as indicated above.

Out of the 15 witnesses examined by the prosecution, PW 2, PW 3, PW 5 and PW 7 were the eye witnesses of the occurrence. According to PW 2, Rani Tanti, hearing hue and cry in front of the house of appellant Sabi, she came out and saw that the accused persons were assaulting the victim Dhaniram. She further stated, that the appellants hit him by hands and legs. PW 2 tried to intervene, but Biswajit pushed her and consequently, she fell down. PW 3 also stated in the same tune, that the house of the accused persons was situated in front of her house. Having heard hue and cry in front of her house, at about 8 pm, she came out and found that accused persons were assaulting the victim with hands and legs. Close on the heels of the evidence of PW 2 and 3, the PW 5 also deposed, that hearing hue and cry he came out and found the appellants assaulting the victim Dhaniram. According to him, the accused persons told him that Dhaniram would be handed over to VDP.

PW 7, Dhiren Tanti deposed, that having come to know that some altercation took place between the victim Dhaniram, Sabi, Bhaiti and Biswajit, he came there and found the victim Dhaniram sitting on the bamboo chair. He also stated that the victim told him about the appellants inflicting injury to the him on the pretext of commission of theft.

PW 9, the mother of the victim, stated that the victim went to the house of his uncle and on the next morning when he came back, he was complaining of stomach pain. She also stated that on the previous night appellant Sabi Tanti, Bhaiti and Ajoy hit him on his stomach. PW 9 took him to local doctor, who advised to shift the victim to Dibrugarh but she could not go to Dibrugarh because of financial crunch and ultimately the victim died on 7-11-13.

PW 1 and 4 were reporting witnesses. PW 8, 10 and 13 were declared hostile. However, there was nothing in their oral testimony which could be of any help to the prosecution.

PW 11 deposed that the victim being in inebriated condition, entered their house by night and when they and raised alarm, the victim tried to ran away, whereupon he was caught by appellant Ajoy and handed over to VDP. The evidence of PW 2, PW 3 and PW 5, who were eye witnesses of the occurrence, clearly demonstrated that the appellants assaulted the victim on the day of occurrence. PW 7, who met the victim immediately after the occurrence also stated, that the victim told him about the assault by the appellants. Thus, the evidence of PW 9 is also found to have lent support to the oral testimony of PW 2, 3 and 5.

What is evident from the oral testimony of all these five witnesses is that the appellants, though, assaulted the victim, they did not use any weapon and admittedly he was given blows by hands and legs. The medical evidence of PW 6 also shows that except a bruise on the cheek no other external injury was detected. During cross-examination, the doctor stated that the injury might be caused by blunt object. The doctor further stated in his cross-examination that the liver was enlarged due to disease and even a mild blow could cause such an injury. It could also happen due to dashing against any hard substance. According to the doctor, the death of the victim was due to liver injury which was the combined effect of disease and the external blow. Doctor has clearly stated in his evidence that the liver of the victim was so affected by the disease, that the rupture could be caused even by dashing against a hard substance.

Evidently the victim being in inebriated condition, at the time of occurrence, entered the house of the appellants at night, whereupon the appellants gave him blows by hands and legs. There was no evidence on record to show that the appellants were aware of the liver disease of the victim. The medical evidence shows that no injury was found on the body of the victim except a bruise on chin and the vital injury leading to death was caused due to combined effect of disease and the external hitting. The evidence of the doctor also shows, that the liver was so badly affected due to disease even a mild hit was sufficient to cause the rupture. Thus the medical evidence as well as the ocular evidence coupled with the nature of injury, clearly demonstrated that there was no intention of the appellants to cause death of the victim. Even any intention to cause such injury as is likely to cause death or the knowledge that injuries might cause death could be attributed to the appellants on the facts and circumstances of the case. Therefore, the accused persons could not have been held liable for any offence of culpable homicide not to speak of murder. However, the evidence as discussed hereinabove, clearly established that the accused persons assaulted the victim and caused hurt to him and as such, the conviction of the appellants deserves to be modified. Accordingly, the conviction of the appellants u/s 304 Pt-II is set aside and instead, they are convicted u/s 323 IPC.

It is submitted by the learned counsel for the appellants and also revealed from the record, that the appellants have been in jail for about 17 months and as such, this Court is of the view, that sentence for the period, which the appellants have already undergone in jail during investigation, trial and thereafter, would meet the ends of justice. Accordingly, the sentence of the accused is also reduced to the period which they have already undergone. Accordingly, the appeal stands partly allowed.

Since the appellants have already undergone sentence they shall be released forthwith if not required in any other case.

Send down the LCR.