Siva Dihingia vs State Of Assam And Ors.

Ajit Singh, C.J

1. The appellant Siva Dihingia has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of

Rs.30,000/- with default stipulation.

The victim of the incident was Rama Kanta Gogoi, aged about 48 years. He wasbrother-in-law of the appellant.

According to the prosecution case, on 31.08.2012 at about 3.30 P.M., appellant cameto the house of his sister Indira Gogoi (PW-1) who was

married to the victim-Rama Kanta Gogoi. Immediately after entering into the house of his sister, the appellant started making queries about his son and

daughter-in-law who had come to the house of Indira Gogoi and left her house on that day. When Indira Gogoi told the appellant that they had already

left for home, the appellant started abusing her. Rama Kanta Gogoi, who was present in the house at that time, intervened and then suddenly, the

appellant picked up a wooden log and hit him on his head. Rama Kanta Gogoi fell on the ground and died instantly. Seeing the incident, appellant fled.

Montu Gogoi (PW-2) â€"son of Rama Kanta Gogoi lodged the First Information Report (Exhibit-1) before the Bakata Nemuguri Police Station on that

day itself. Uma Kanta Das, ASI (PW-10) immediately came to the place of occurrence, seized the wooden log vide Exhibit-2 seizure list in presence

of Montu Gogoi, Bhagaban Gogoi (PW-6), Surjya Buragohain (PW-3) and Mohen Konwar (PW-9). He got the inquest done in presence of Pradip

Gogoi (PW-7), Bhaba Ghurasuwa (PW-8) and Mahen Konwar (PW-9) and sent the body of Rama Kanta Gogoi for post-mortem examination and

recorded statement of witnesses. He also arrested the appellant.

Dr. Dipak Gogoi (PW-5) conducted post mortem examination on the dead body ofRama Kanta Gogoi. According to him, death was due to comma

as a result of sub-archnoid haemorrhage over base of brain. His post mortem examination report is Exhibit-3. As the investigation was completed

Nitya Sonowal submitted Exhibit-6 charge-sheet against the appellant for an offence under Section 302 of the Indian Penal Code.

During trial, the appellant abjured his guilt. But the trial court relying upon theevidence adduced by the prosecution especially the eye witness-Indira

Gogoi, convicted and sentenced the appellant as aforesaid.

After hearing the learned counsel for the parties and perusing the record, we are ofthe view that the appeal deserves to be partly allowed. Indira

Gogoi is the sister of appellant and she has no occasion to depose falsely against him. She has categorically deposed that she saw the appellant

assaulting her husband with a wooden log as a result of which he died instantly. This evidence is not shaken during her cross-examination. But at the

same time, she has deposed that when the appellant abused her and started arguing with her on being asked about the whereabouts of his son and

daughter-in-law, her husband Rama Kanta Gogoi came out and asked the appellant to leave the place. At this, the appellant suddenly picked up a log

and hit him resulting to his death. So, apparently the assault was made by the appellant in sudden provocation without any premeditation to commit the

offence. There is no evidence at all to even remotely suggest that there was some enmity between the appellant and Rama Kanta Gogoi and as such,

it can be safely held that the appellant had suddenly hit Rama Kanta Gogoi in a fit of anger without any intention to commit his murder though he had

knowledge that such an assault made by him with a wooden log on the head could cause his death.

Therefore, we are of the considered view that the appellant is guilty of committing anoffence of culpable homicide not amounting to murder under

Section 304-II of the Indian Penal Code and not an offence under Section 302 of the Indian Penal Code as held by the trial court. Accordingly, we set

aside the impugned conviction and sentence and impose sentence of rigorous imprisonment of 5 (five) years on the appellant. The appellant is a poor

rustic farmer. We are, therefore, of the view that fine of Rs.30000/- imposed on him is unreasonable and on the higher side. We, accordingly, reduce

the sentence of fine also to Rs.5000/- and in default, the appellant shall undergo simple imprisonment for 3 months.Â

The appeal is partly allowed. The conviction and sentence are modified as indicatedherein above.