JUDGMENT
H.K.K. Singh, J.
1. This Criminal Appeal arises out of the judgment and order of conviction dated 19-7-1995 passed by the learned Additional Sessions Judge, North Tripura, Dharmanagar in Sessions Case No. 22(N.T./D) of 1994 thereby convicting the accused-appellant for the offence under Section 304, Part 2 of IPC and sentencing him to undergo 10 years rigorous imprisonment.
2. The case of the prosecution as revealed in the F.I.R. is that on 12-6-91 in the morning, at about 6 a.m. the accused plucked fruit from the jack-fruit tree which was grown inside the compound of deceased Mohan Lal Sahaji in spite of the complaint and protest from the mother of the deceased. In the meanwhile, deceased also came to the spot and went to the Court-yard of accused and also made some altercation with the accused. Suddenly, the accused assaulted the deceased with a wooden stick namely, ‘Ish’ on his head and other parts of the body. Soon thereafter, the deceased succumbed to injuries. The dead body was brought to the Pecharthal Police Station and Sunil Chandra Sahaji (P.W. 1) gave an oral ejahar which was recorded and a case under Section 302 of IPC was registered and after investigation the accused was charge-sheeted for the offence under Section 302, IPC and after trial the accused was convicted under Section 304, Part-2, IPC as noted above.
3. I have heard Mr. A.M. Lodh, the learned senior counsel appearing for the accused-appellant who has questioned the judgment of conviction as recorded by the learned Additional Sessions Judge on various grounds and the learned counsel has taken me through the evidence recorded by the learned trial Court and also the. judgment. Mr. S. Das, the learned Public Prosecutor on the other hand, has submitted that the prosecution has proved the case satisfactorily and there is no ground warranting intervention by this Court.
4. In this case 14 witnesses were examined including the Investigating Officer and Doctor who conducted the post-mortem examination. The prosecution relied upon the statement of eye-witnesses viz. P.W. Nos. 2, 3, 5, 7 and 9 and also some other witnesses who came to the spot just after the occurrence*. The evidence of these direct eyewitnesses was found supported by the prompt lodgment of the F.I.R. and soon thereafter the Investigating Officer rushed to the spot of occurrence, held the inquest in respect of the dead body, examined the witnesses on the same day and also seized the weapon of the offence Ext. M.O. 1.
5. Firstly, let us take up the medical evidence. P.W. 14 is Dr. Daswarath Roy, who conducted the autopsy on the dead body and his report is found at Ext. P/6 which reads as follows :-
(i) External Appearance : Rigor mortis over,
(ii) Lacerated wound over the occipital region of head size-3″ x 2″ x 2.
(iii) Echymosis over the right maxirrllary promontary Internal injury :-
(i) scalp and skull bone at occipital region fracture with injury over back of head.
(ii) Duramamter against the injury raptured.
(iii) Brain and Spinal Cord : Depression due to collection of blood at the occipital region with transverse brain raptured. Examination of chest : nothing abnormal deducted.
Examination of abdomen :- Nothing abnormalities deducted except distantion of instantite and continuing gases. Other vital organ in abdomen :- nothing abnormality deducted.
Muscels, bones and joints : Muscles injury over the back of the head at occipital region. Fracture of occipital bone.
More details description of the injury : Fracture of occipital bone at mid line parallel to the base of the scalp with collection of blood at the sight of fracture causing depression over the brain with torn transverse brain of head.
Cause of death is due to head injury which is homicidal in nature. Time since death-36 hours approximately.
Head injury might be caused by heavy weapon like sharp blunt edge and not by sharp cutting weapon. Said injury might be caused by Ext. M.O.I like weapon. Ext. M.O.I bears uneven blunt sharp edge.
This is my report, marked Ext. P/7 and this my signature, marked Ext. P/7/1.
Head injury is responsible for the cause of death of deceased Mohanlal Sahaji.
6. The occurrence took place on 12-6-91 at about 8.30 a.m. and the post-mortem examination was held on 13-6-91. The doctor opined that the death was homicidal and was caused by heavy weapon having sharp blunt edge and might be caused by Ext. M.O. 1 which was shown to the witness at the time of his examination and the doctor concluded that due to the head injury Mohanlal Sahaji died.
7. From the evidence of witnesses it is established that there was an old enmity between the accused and the deceased over the ownership of the land where the accused was residing. It appears that the accused was residing in the compound of the deceased and the accused constructed his dwelling house over the said area and on the fateful day the accused plucked a jack-fruit from the tree which was grown near the dwelling house of the accused. The mother of the deceased protested at the plucking of the jack-fruit as, according to the mother of the deceased, the jack-fruit tree belonged to her and thus she protested and the altercation followed and subsequently on his arrival, the deceased also protested to the accused which was immediate cause of the assault made by the accused by giving blows over the head and other parts of the body of the deceased with the weapon ‘Ish’. Now, let us see some statements of the witnesses.
8. P.W. 2 Smt. Subhadra Rani Sahaji, who is the mother of the deceased was present at the place of occurrence. She stated that when the accused plucked the jack-fruit from the tree of her compound altercation followed, but the accused went inside his house. In the meantime, her son Mohanlal Sahaji came and he suddenly went to the house of the accused and asked as to why the accused was creating ‘golmal’ with his mother. On hearing that the accused suddenly picked up the ‘Ish’ of a plugh and assaulted her son Mohanlal Sahaji on his head, face and other parts of the body and she raised alarm and on hearing her alarm P.W. 7 Subhash Sahaji, P.W. 8 Arun Sahaji and others rushed there and she became unconscious. Her statement is supported by P.W. 7 and P.W. 8 who in the same time stated that on hearing the alarm both of them rushed to the spot and they saw the accused running away from the spot and they also found the deceased lying in the Court-yard of the accused. In the same time P.W. 3 Smt. Urmila Sarkar also stated that on hearing the altercation between the accused and the mother of the deceased over the plucking of jack-fruit and after sometime she heard some sound “Dhum Dham” and on hearing the sound she came out of her kitchen and rushed towards the Courtyard of the accused as the sound was coming from that direction. She also stated that when she came out of her kitchen she saw the accused running away towards the northern side and she also raised alarm and found deceased lying in the Court-yard of accused and Arun Sahaji P.W. 8 was pouring water on the head of the deceased who sustained bleeding injuries on his head.
9. Similarly, P.W. 4 Sudhir Hajari Sahaji also rushed to the spot on hearing the alarm and saw the deceased lying in the Courtyard of the accused unconscious. P.W. 6 Smti Minati Sarkar also deposed in the same way.
10. Mr. A.M. Lodh, the learned senior counsel appearing for the defence has submitted that most of the witnesses are relatives of the deceased and as such they are partisan and their statement cannot be relied upon. Here it is to be noted that mere fact that a witness is related to the deceased does not mean that his statement should be rejected out-right. The important question is to find out whether they are partisan witnesses’. According to the circumstances of the case, if the witness who is related to one of the parties is found to be present at the place of occurrence and his presence at the spot if found to be natural and his statement is also found to be quite cogent, natural and believable then there is no reason why the statement of such a witness who is related to one of the parties should not be believed and acted upon.
11. Mere relationship does not disqualify a witness. A person who is related to the deceased are competent to depose the fact like any other witness. A close relative who is a natural witness is not necessarily an interested witness. The only rule of prudence is that the Court should examine such a statement of a witness who is related to the victim or any of the party, cautiously.
12. In our present case, it is true that P.Ws. 2, 5 and 9 are close relations of the deceased. But houses lie close to the residence of the deceased and then it is quite probable that on hearing the alarm they rushed to the spot of occurrence. Some minor discripencies may be appearing in the statement of these witnesses. But these minor discripencies is quite natural in case of an oral account of witnesses in respect of an occurrence. Again, these statement of relations of the deceased are found supported by the statement of P.Ws. 3, 6 and 8. These witnesses are not related to any of the parties, neither to the accused nor to the deceased. These P.Ws. 3, 6 and 8 who are also residing near the house of the deceased and as their houses are situated close to the house of the deceased the alarm raised by the mother of the deceased should have been heard by them and as such they rushed to the spot just after the blows were given by the accused to the deceased. There is no reason to disbelieve these independent witnesses as they stood the test of cross-examination by the defence counsel.
12-A. The learned defence counsel has submitted that if there was bleeding injury and blood came out from the head then blood stained earth should have been found by the Investigating Officer. But no blood stained earth has been seized in the present case, thus the prosecution story cannot be relied upon. In this regard, the learned defence counsel has relied upon a decision of the Supreme Court in the case of Buta Singh v. State of Punjab, reported in 1991 Cri LJ 1464 : (1991 AIR SCW 1022). But the above decision of the Apex Court cannot be of any help to the submission of learned counsel considering the fact of the present case at hand. In this reported case, the Apex Court found that the version of the defence was not to be brushed aside as no blood was found near the place where the occurrence took place according to the prosecution, but the blood stain was found near the tube well which is not the place of occurrence according to the prosecution case. But in our present case the occurrence took place just in front of the Court-yard of the accused and the deceased was lying on the court-yard of the accused and he was attended upon by the persons who rushed there and poured water over the head and as such the blood stained earth, if any, might have been also washed away by the water.
13. There is no delay in lodgment of the F.I.R. The Investigation Officer rushed to the spot and performed his duty of examining the important witnesses and he seized the weapon of the occurrence in presence of the witnesses by preparing seizure Memo and considering the totality of the evidence on record the finding as recorded by the learned Additional Sessions Judge that the accused gave blows with ‘Ish’ on the head and other parts of the body of the deceased is quite proper and no interference is called for.
14. Lastly, the learned defence counsel has submitted that there is a long standing dispute regarding ownership and user of the land, between the deceased and the accused and the incident also started from plucking of a jack-fruit only due to the old enmity when the mother of the deceased protested accused was provoked and again when the deceased again protested he became more infuriated and at the spurt of the moment the accused picked up the ‘Ish’ from the Court-yard and gave some blows without any premeditation to cause the death or even grievous hurt to the deceased. Thus, considering the circumstances of the case, the learned counsel has submitted for converting the conviction of the accused to other offence of causing hurt. I am not pursuaded to agree with such submission of the learned counsel for the defence. The conviction has been property made for the offence under Section 304, Part-2 for causing death of the person.
15. But considering the entire facts and circumstances of the case and on the submission made by the learned defence counsel I am of the opinion that it will meet the ends of justice if the sentence awarded is modified and reduced to rigorous imprisonment for 7 years.
16. Accordingly, the judgment of conviction for the offence under Section 304, Part-2 is maintained and the sentence of 10 years rigorous imprisonment is reduced to 7 (seven) years rigorous imprisonment.
17. The appeal is accordingly rejected except for the modification in respect of quantum of sentence. The accused is on bail and he is directed to surrender before the learned Additional Sessions Judge, North Tripura, Dharmanagar within a period of 15 days from today to serve out the remaining term of the sentence, on his failure, necessary process shall be issued by the learned Additional Sessions Judge.