JUDGMENT
Aftab H. Saikia, J.
1. Heard Mr. P. Kataky, learned Amicus Curiae and Mr. B.B. Gogoi, learned P.P., Assam.
2. The conviction under Section 302 IPC and the sentence to undergo imprisonment for life and to pay a fine of Rs. 20,000/-, in default, rigorous imprisonment for a further period of four months so imposed upon the appellant by the learned Sessions Judge, Cachar at Silchar by his judgment and order dated 20.9.2002 passed in Sessions Case No. 11/99 is the subject matter of challenge in this Criminal Appeal preferred by the appellant from the jail.
3. The prosecution case in brief is that on 23.3.97 one Khil Pasmon Khasia was returning from Amarghat Market at about 9 p.m. There was a hue and cry at a place situated by the side of Kalakhal Bridge. On hearing the hue and cry, the nearby people rushed to the said place and found Khil Pasmon Khasia lying on the ground with multiple injuries upon his person. On the following morning he was removed to Silchar Medical College Hospital where at about 10 a.m. he succumbed to his injuries. To that effect Smt. Enbare Khasia, wife of the deceased Khil Khasia lodged an FIR with the Officer-in-Charge, Sonai Police Station on 25.3.97. The police registered a case under Sections 302/34 IPC.
4. On the basis of such information lodged with the police, the investigation ensued. In course of investigation the police held inquest on the dead body and on completion of investigation, submitted Charge Sheet against the appellant along with Ananta Das under Sections 302/34 IPC.
5. Having considered the police report and also upon hearing the learned Counsel for the parties, the learned Sessions, Cachar at Silchar framed charge against the accused-appellant under Sections 302/34 IPC. The charge was read over to the accused-appellants to which they pleaded not guilty and claimed to be tried. The accused-appellants were examined under Section 313 Cr.P.C.
6. The learned Sub-Divisional Magistrate, (Sadar) Silchar, on receipt of such charge sheet so submitted by the police, vide order dated 11.1.99 committed the case to the Court of learned Sessions Judge, Cachar at Silchar as the case was being exclusively triable by the Court of Sessions.
7. During the trial, the prosecution examined as many as 12 witnesses including the Dr. Homeswar Sarma, P.W-11 who conduced the inquest over the dead body and the Investigating Officer (for short, the ‘I.O’) Safir Uddin Ahmed P.W-12.
8. Upon proper appreciation of the material evidence on record and having heard the learned Counsel representing the parties, the learned Sessions Judge while acquitting the other accused Ananta Das, convicted and sentenced the appellant as abovementioned.
9. At the very outset, Mr. Kataky, learned Amicus Curiae has drawn our attention to the medical evidence of Dr. Homeswar Sarma, P.W-11 who had held the postmortem examination on the dead body of the deceased found the following injuries:
A stitched wound 5cm. long over the anterior part of the vertex and another over the posterior part of left parietal region, both covered with firm blood clot. Removing the stitches found laceration of the margins of the wounds and scalp on the left side confused as a whole. Fissure fracture of the left side of the occipital bone at the vessel part and left temporal bone. Subdural blood clot present over the cerebellum. Contusion of left side of the cerebral cortex and laceration of that part with intra cerebral haemorrhage.
Thorasic and abdominal organs were congested.
10. It is seen that according to Doctor’s opinion, death was caused due to cranio cerebral injuries which were ante mortem and caused by blunt force impact.
11. From a bare perusal of the medical evidence, it appears that only one blow was struck on the victim.
12. On discreet scrutiny of the deposition all the 12 witnesses so adduced by the prosecution including the Doctor P.W-11 as well as the I.O. P.W-12 respectively, we are of the considered view that the testimony of all these witnesses particularly P.W.-1, P.W.-2, P.W.-3 and P.W.-5 is reliable and trustworthy. It also appears that the deceased made dying declaration to P.W.-1, P.W.-3, and P.W.-5. In that view of the matter, we do find no discernible discrepancy in the evidence of those witnesses not place any reliance on their evidence. Accordingly, we are in full agreement with the findings of the trial Court that it was the appellant who committed the offence of killing the deceased.
13. Now the question is whether the appellant is liable for conviction under Section 302 IPC keeping in view the single injury being inflicted over the person of the deceased.
14. As regard the infliction of one blow injury on the deceased, Mr. Kataky, learned Amicus Curiae has relied upon two judicial pronouncements reported in (2005) 11 SCC597 (Jeet Singh v. State of Haryana) and (Subramani and Anr. v. State of Tamil Nadu).
15. In Jeet Singh’s case (supra), the Supreme Court in Paragraph-4 of the judgment held as under:
4. Going by the evidence adduced by the prosecution, we are not inclined to interfere with the findings of fact entered by the Sessions Judge and the High Court. However, we find some force in the contention urged by the appellant’s counsel that the offence, if any, committed by the appellant may not come within the purview of Section 302 IPC. It is pointed out that there was no previous quarrel or enmity between the appellant and the deceased and the quarrel had suddenly taken place due to the fact that the deceased Bawa Singh drove the tractor through his field and the sudden quarrel ensued because of the conduct of the deceased. It is also pointed out that the appellant was having a weapon with him and he gave only one blow which unfortunately had resulted in the death of the deceased. It is contended by the appellant’s counsel that the offence would come within the ambit of Section 304 Part I IPC. It is true that there is only one fatal injury on the head of the deceased. The appellant must have inflicted a blow on the head of the deceased because of the quarrel between the two. The appellant certainly would have knowledge that his act would result in the death of the deceased. Hence, the offence comes under the purview of Section 304 Part I of the Indian Penal Code and hence we set aside the conviction of the appellant for the offence under Section 302 IPC and hold him guilty of the offence under Section 304 Part I IPC and sentence him to undergo imprisonment for a period of 8 years. The appeal is disposed of as above.
16. In Subramani’s case (supra), the Apex Court in paragraph-19 of the judgment held as under:
19. Considering the background facts as highlighted above when tested in the backdrop of the legal principles noted supra the inevitable conclusion is that the accused persons had not established that they were exercising right of private defence. The residual plea is that only a single blow was given by a wooden yoke of very light weight. Though it cannot be laid down as a rule of universal application that whenever death occurs on account of a single blow, Section 302 IPC is ruled out, the fact situation has to be considered in each case. It appears from the records, as noted above, that a single blow was given on the head of the deceased by a small wooden yoke. Considering the background facts as noted above, it would be proper to alter the conviction from Section 302 IPC to Section 304, Part-I, IPC. Custodial sentence of 10 years would meet the ends of justice.
17. Relying upon the aforesaid decisions Mr. Kataky has strenuously urged that in the aforesaid decisions, the Supreme Court while dealing with the impact of inflicting single blow, categorically came to the finding that the offence committed by the appellant would come within the ambit of Section 304(1) IPC instead of Section 302 IPC and accordingly, sentenced the appellant therein to undergo imprisonment under Section 304(1) IPC.
18. Having meticulously considered and appreciated the testimony of the prosecution witnesses vis-a-vis the medical evidence of P.W.-l1 pertaining to the description of single injury, we have found enough force in the argument so advanced by Mr. Kataky and accordingly, having regard to the judicial pronouncements as referred to above and also considering the medical evidence of Dr. P.W.-11 as well as keeping in mind the corroborative evidence of the prosecution witnesses, we are inclined to convert the conviction of the appellant from Section 302 IPC to Section 304(1) IPC and the custodial sentence of 10 years would be satisfied to meet the ends of justice.
19. Consequently, the conviction of the appellant is converted to Section 304(1) IPC and he is sentenced to 10 years rigorous imprisonment.
20. In the result, the appeal stands partly allowed to the extent of modification as indicated above.
Before parting with the record, we would like to put on record our appreciation to Mr. P. Kataky, the learned appointed Amicus Curiae for the help and assistance rendered to arrive at a decision in this jail appeal aforesaid and accordingly, it is ordered that he is entitled to get his professional fee which is quantified at Rs. 3000/-
L.C.R. be sent down immediately.