Judgment & Order (Cav)

1. Heard Mr. N. Ahmed, learned counsel for the appellants. Also heard Mr. S.R. Kalita, learned counsel for the respondent No. 2. Also heard Mr. P. Borthakur, learned Addl. Public Prosecutor for the State.

2. This appeal is directed against the Judgment and Order dated 15.09.2014 passed by the learned Addl. District & Session Judge(FTC), Kamrup, Rangia in Sessions Case No. 247 (K)/13 convicting the appellants under Sections 323/34 IPC and sentencing him to undergo imprisonment for a period of one year and to pay a fine of Rs.1000/- each, in default, another imprisonment for 15 days.

3. The prosecution case in brief, as per the First Information Report (FIR) dated 21.02.2013 of Smti. Deepa Debnath against these two accused persons, is that on the previous night of 21.02.2013, at about 8 pm, the accused Parimal Debnath called her husband outside the house telling that there is some discussions and took her husband to the gate of the house and thereafter, both the accused attacked her husband with their hands and legs. For non-availability of medical facility, her husband was kept inside the house and slept. In the morning of 21.02.2013 at about 9 am, when her husband did not wake up, she called her husband, but her husband did not respond and she presumed her husband to be dead. Her allegation is that due to assault by the accused, her husband has died. She put her thumb impression in the FIR (Ext. 4).

4. Pursuant to registration of the FIR, the investigation commenced, in course of which the I.O recorded the statements of witnesses and collected other material and upon completion of investigation submitted the charge sheet under Section 302/34 IPC against the accused persons. Accordingly, the learned Trial Court framed charge under Section 302/34 IPC against the accused persons to which the accused appellants pleaded not guilty and claim to be tried.

5. To prove its case, the prosecution examined nine prosecution witnesses as well as one Court witness and upon conclusion of trial and recording of defense statement, the appellants were convicted and sentenced as aforesaid. The appellant/informant is aggrieved by the conviction under a lesser offence i.e. Section 323/34 IPC as against Section 302/34 IPC under which the charge was framed.

6. Learned counsel for the appellant has submitted that despite the fact that the actions of the appellants had resulted in the death of the deceased, they had ultimately been convicted for a much lesser offense of voluntarily causing hurt, punishable under Section 323 IPC and having regard to the testimony of the wife of the deceased, the learned Trial Court ought to have convicted them under Section 302/34 IPC as charged.

7. At this stage, it would be apposite to go through the relevant evidence on record.

8. Post Mortem Report (Ext. 1) reveals the injury on the abdomen of the deceased. PW-1 conducted post mortem and found injuries on the abdomen. On dissection of anterior abdominal wall, it was found to be contused, Peritoneum peritoneal cavity contains 2500 ml. of blood. As regards small intestine and its contents, it was found pale and contains glue like material. Mesentery is contused and lacerated.

In his cross examination, he ruled out such injuries by falling down and to the Court question, his reply was that such injury was possible by fist blow.

9. The opinion of the Doctor (PW-1) is that death was due to hemorrhage and shock as a result of abdominal injury, as described, which is ante mortem and caused by blunt force impact and approximate time since death was 12 to 24 hours.

10. The prosecution evidence as per sole eye-witness PW-2 is that on that night at about 8 pm, she was preparing ladu (dish) and her husband was lying on the bed. At that time, accused Parimal Debnath called her husband from outside and her husband went out. She also went out. Accused Jadu Debnath and Parimal Debnath assaulted her husband with their hands and legs and thereafter, they left. She brought her husband inside the house and laid him on the bed. Her husband fell asleep. In the morning, when she tried to wake up, her husband did not respond. She shouted and her husband's elder brother Swapan Debnath, sister-in-law Arati Debnath and Mithun Debnath arrived. It was around 10 am. She informed the witnesses about the incident. She lodged the FIR and police took her husband to Nalbari Medical Hospital. This incident took place after about 6 months of her marriage.

In her cross examination, she stated that the FIR was written by one Jiban Lahkar, as the accused are neighbours. Other people's houses are at some distance. She also stated that her husband went out of the house and hearing hulla, she also came out. There is no electricity in the village. In the night, she did not think the matter to be so serious and so she did not call for help to anyone. Next day morning at about 10 am she informed her uncle Manjan Debnath by mobile phone of another person. She went to the police station along with her father Nripen Debnath.

11. Defence's suggestion was that after the discussions with the accused persons, deceased Jiban Debnath had a quarrel with other persons and they assaulted Jiban Debnath, which was denied by PW-2. She also denied that her husband sustained injury by falling down. Her husband used to drink sometime, but did not drink on a day. She denied that her husband used to often make hulla after coming home.

12. As per the medical evidence, the cause of death is due to hemorrhage and shock as a result of abdominal injury which is ante mortem and caused by blunt force impact and that such injuries could be caused by fist blow and that the said injury is not possible or cannot be caused by falling down as there would have been other injuries and the M.O did not find any external injuries on the body of the deceased. Therefore, the manner of assault as described by the PW-2/wife is corroborated by the medical evidence.

13. As far as the question of lack of sufficient light enabling the identification of the accused appellants by the PW-2/wife is concerned, it is to be noted that the appellants belonged to the same village as the informant and they were known persons and besides that, they had called out the deceased from the courtyard and their voices were therefore heard by the PW- 2/wife and as rightly observed by the learned Trial Court when the deceased as well as PW-2 came out by opening the door of their house, some light must have escaped from inside the house and spilled into the courtyard.

14. Under these circumstances, it would be imprudent to hold that the PW-2 could not have identified the assailants. Learned Trial Court has rightly relied on the decision of the Hon’ble Supreme Court in Kamnu Virja Rao Vs. State of U.P. reported in 1998 Crl.L.J. 2523 wherein it was observed that it is legally expected position that even on a full dark night, there is never total darkness and identification is possible through shape of the body, cloth, gait and manner of walking, voice etc.

15. As far as the delay in lodging the FIR is concerned, the learned Trial Court has come to the conclusion that the discovery of the fact of death of the deceased was made by the PW- 2/wife only on the next morning at around 10 am and it has also come in the evidence of PW-3 that he rang up the Police Station and Police informed him that a case has to be filed and thereafter, the PW went to the Police Station and lodged the FIR. Moreover, PW-7 also deposed that he informed the Police over phone and also asked PW-4 to go to the Police Station and inform the matter. Further, the fact must not be lost sight of is that the informant/wife lost her husband and some amount of mental anguish and sorrow must have engulfed her at that moment and after informing her neighbors and family members and awaiting their appearance would have consumed some more time which ultimately resulted in some delay in lodging of the FIR which was done at around 6:15 pm.

16. The delay therefore does not raise any suspicion or scope for concoction. As far as the motive or reason which led the accused appellants to attack the deceased, it has been observed by the learned Trial Court as follows:-

                   “25. The important witness of this case is PW 8. The evidence of 8 is that on that day, at about 6 pm, he went to the house of the accused for some business matter. Indrajeet Debnath and Niranjan Debnath also arrived there. At about 7 pm Jibon Debnath came drunk and hurled abusing language from outside the house of Parimal Debnath. Accused did not utter a single word. After abusing gali, Jibon Debnath left. After 7.30 pm, Indrajeet Debnath and Niranjan Debnath also left. He remains therefore dealing some business account and after having meal, he left house at about 10 pm. Next day at about 12 noon, he came to know that Jibon Debnath has died. After sometime police brought him from his shop. At this stage, this witness was declared hostile because he deviated from his earlier statement that he left the house of accused persons at 7.30 pm along with Indrajeet Debnath and Niranjan Debnath. In cross by defence, he stated that PW 2 is the cousin of the accused Parimal Deka, being daughter of 'Peni (father's sister) of Parimal Debnath. He is a friend of Parimal Debnath and known from childhood. He also stated of quarrel being taken place between PW 2 and her husband over the drinking habit of her husband.

                   26. From the evidence of PW 8, it is reflected that on that night Jibon Debnath came drunk and from outside of the house, accused hurled abusive language. This speaks of the reason behind accused persons assaulting Jibon Debnath. The deceased was a drunkard and used to utter gali. This establishes the motive behind the act of the accused.”

17. Upon perusal of the impugned judgment and the record, it is found that the learned Trial Court has rightly appreciated the evidence and although the accused appellants were charged under Section 302/34 IPC, they were ultimately convicted for a much lesser offence i.e under Section 323/34 IPC by assigning cogent and valid reasons. Furthermore, the quantum of sentence of one year imprisonment is also a reasonable one. Hence, no interference is called for in this regard either.

18. In view of the above, I do not find any merit in the present appeal which accordingly stands dismissed.

19. The learned Trial Court Judgment & Order dated 15.09.2014 stands affirmed.