JUDGMENT
P.G. Agarwal, J.
1. Heard Mr. B.D. Konwar, learned counsel for the appellant and the learned P. P.
2. In Sessions Case No. 85(J-J) 98 (G.R. Case No. 51/98) the accused appellant Kalia Bhuyan @Bikash was tried for the offence under Section 302, IPC and on conclusion of the trial the learned Addl. Sessions Judge, Jorhat vide the impugned judgment and order dated 11.10.2001 convicted the appellant under Section 302, IPC, and sentenced him to Rigorous Imprisonment for life and to pay a fine of Rs. 10,000 in default further imprisonment for one year.
3. The prosecution allegation is that on the fateful day of 13.1.1998 at about 5 P. M. the accused appellant assaulted the deceased (Joy Prakash Suri) with an iron rod on the head as a result of which the deceased sustained swelling over the head and he latter on succumbed to the injury on the same night. On dissection Dr. Durlay Kumar Baruah (PW-5) who held the post mortem examination on the dead body of the deceased found an irregular fracture over the right temporal region 2″ x 1″ x 1/2″. In the opinion of the doctor, the death was due to comma as a result of head injury. In view of the oral and medical evidence on record, the death of the deceased as a result of the head injury has been well established.
4. In this case, we find that ‘there is no eye witness to the occurrence, that is, none of the witnesses saw the deceased being assaulted. PW-1 Smt. Rukmini Suri and PW-2 Prafulla Suri, however, claimed that on hearing the cry for help, they came to the place of occurrence and found their son sitting on the roadside in injured condition and they saw the accused with an iron rod. This part of the evidence seems to be obvious development from the earlier version recorded under Section 161, Cr.PC., wherein they had stated that the injured returned home and narrated the incident and they saw the injury.
5. We find from the evidence of the prosecution witnesses that the entire prosecution rests on the oral dying declaration of the deceased. Besides PW-1 and PW-2 , PW-4 and PW-7 also deposed that on hearing about the incident, they came to the house of the informant and found the deceased with swelling over the head and the deceased informed them that he has been assaulted with an iron rod by the accused appellant Kalia Bhuyan. The fact that the deceased made a dying declaration was not disputed or even challenged by way of cross-examination. Further, from the oral evidence on record, we find that the deceased was fit in physical and mental condition to speak. Although there is no certificate from the doctor, we find that the evidence regarding oral dying declaration of the deceased implicating the accused can be safely relied upon. Moreover, in the case of Smt. Rambai v. State of Chhatisgarh, reported in (2002) 8 SCC 83, the Apex Court held that a certificate from the doctor in the matter of dying declaration is not a must. Relying on the ratio of law laid down in the case of Kans Raj v. State of Punjab, reported, AIR 2000. SC 2324 and Uka Ram v. State of Rajasthan, reported in AIR 2001 SC 1814, we find that in the instant case, the dying declaration made by the deceased as regards the cause of death can be safely relied upon.
6. The learned counsel for the appellant has also submitted that there is no intention to cause death. As a matter of facts, the motive for the assault is not known and what led to the assault of the deceased. From the oral and medical evidence on record, we find that this is a case of single injury. The accused was allegedly armed with an iron rod and the deceased was unarmed. In support of the submission, the learned counsel for the appellant has placed reliance on a decision of the Apex Court in the case of K Ramakrishnan v. State of Kerala, reported in AIR 1999 SC 1428. The matter relating to causing of death by single blow was considered by the Apex Court in the case of Mahesh Balmiki v. State of MP, reported in 2000 (1) SCC 319 and the Apex Court observed :
“Adverting to the contention of a single blow, it may be pointed out that there is no principle that in all cases of single blow, Section 302 IPC is not attracted. A single blow may, in some cases, entail conviction under Section 302 IPC, in some cases under Section 304 IPC and in some cases under Section 326 IPC. The question with regard to the nature of the offence has to be determined on the facts and circumstances of each case. The nature of injury, whether it is on the vital or non-vital part of body, the weapon used, the circumstances under which the injury is causal and the manner in which the injury is inflicted, are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him.”
7. The above views were reiterated in the case of Dhupa Chaman v. State of Bihar reported in 2002 AIR SCW 3217.
8. In the present case, the genesis of the incident is not known. However, the injured was allegedly assaulted near a furniture shop and the owner of the furniture shop was unaware of the incident as stated by him. In the instant case, the accused gave a single blow on the head of the deceased and the accused did not try to make further assault which goes to show that he had no intention to cause the death. This is not a case where because of certain intervention the accused was deprived/ restrained from making further assault. The weapon of assault was iron rod or any other blunt object.
9. Hence, from the facts and circumstances of the case, we find that the intention to commit murder cannot be inferred and the act of the accused constitutes an offence, of culpable homicide not amounting to murder. Accordingly, the Conviction of the accused appellant is altered to Section 304 Part II IPC. The learned counsel for the appellant has submitted that considering the age of the accused appellant and the period of imprisonment already undergone by the accused, he may be treated leniently. We have heard the learned counsel for both sides regarding the sentence and upon consideration of relevant materials, the accused appellant Kalia Bhuyan is convicted under Section 304, Part II, IPC and he is sentenced to imprisonment for four years and to pay a fine of Rs. 1000 in default further imprisonment for one month. The period of imprisonment undergone by the accused appellant as UTP/Convict shall be set off under Section 428 Cr.PC.
10. The learned counsel for the appellant has submitted that the appellant is prosecuting study while he is in jail and as such a direction may be issued for making arrangement for appearing in the examination. Accordingly, the Superintendent of Jorhat Central Jail, is directed to do the needful in the matter.
11. The appeal stands disposed of accordingly. Let a copy of this order be sent to the Superintendent of Jorhat Central Jail. Send down the records to the Sessions Judge Jorhat.