JUDGMENT
D. Biswas, J.
1. This appeal is preferred against the judgment dated 26-4-2001 passed by the learned Sessions Judge, Jorhat in Sessions Case No. 67(J-J) of 1996 convicting the appellants under Section 302 read with Section 34, I.P.C. and sentencing all the appellants to undergo imprisonment for life and to pay a fine of Rs. 500/- each, in default, to rigorous imprisonment for one month each. In addition, Dulai Das was also convicted and sentenced under Section 323, I.P.C. to rigorous imprisonment for 3 (three) months. We have heard Mr. A. Thakur, learned counsel for the appellants and also heard Mr. Noor Mahmmad, learned Public Prosecutor.
2. On 13th February, 1995 an ejahar was lodged by Smti Tanu Dey. wife of the deceased Narayan Dey before the Officer-in-Charge, Mariani Police Station alleging inter alia that on 13-2-1995 at 10 a.m. the appellants-Umesh Das along with his sons namely, Jatin Das and Dula Das assaulted her husband Narayan Dey and their children including herself. As a result of the injuries sustained, her husband Narayan Dey died. Other injured persons had to undergo medical treatment. It was further alleged that her deceased-husband was thrown by the appellants from the embankment into the river side below.
3. On commitment, the trial Court framed charges against the accused persons on the first count for causing death of Narayan Dey under Section 302, I.P.C. read with Section 34, I.P.C. and on the second count under Section 323 read with Section 34, I.P.C. for causing injuries on the person of the members of victim family. On conclusion of the trial the learned Sessions Judge convicted and sentenced all of them as aforesaid.
4. P.W. 1 Dr. Sarbeswar Malakar performed the post-mortem examination over the dead body of Narayan Dey. The injuries found by him are as follows :-
External appearance – A healthy male dead body about 47 years old, eyes and mouth closed. Rigor mortis present.
Injury No. (1) Haemotoma right parie to temporal region, measuring about 7 cm. x 5 cm.
(2) Depressed fracture, right temporal bone, subdural haemotoma, right temporal region, measuring 5 cm. x 4 cm.
Throax-Healthy
Abdomen-Healthy
All other organs are healthy.
Muscles, bones
and joins – There is a depressed fracture or right temporal bone. The injuries are ante-mortem.
In my opinion, the cause of death is head injury caused syncope and death.
The injury can be caused by heavy blunt weapon. It was sufficient to cause instantaneous death.
5. It would appear from the evidence of the Medical Officer that the deceased sustained two grievous injuries in the temporal region with fracture of right temporal bone. According to the Medical Officer, the death was caused due to the aforesaid head injuries sustained by the deceased.
6. P.W. 2 Tarun Dey is not an eye-witness to the occurrence. He stated nothing against the accused persons. P.W. 3 Shri Anil Mandal stated that on way to his place of work near the bridge, he heard a commotion (hullah). He saw Sikha Dey, Uttam Dey, Narayan Dey, Dulal Das and Thanu Dey. According to him, there was a ‘marpit’ and Narayan Dey, the deceased, fell down on the ground. He wanted to lift Narayan, but was prevented by his wife. According to him, Narayan Dey died on the spot. This witness, however, did not make any incriminating statement against any of the appellants, though it was in his presence the alleged ‘marpit’ took place in which Narayan Dey sustained injuries and died. P.W. 4 Sikha Dey, daughter of the deceased identified all the accused persons in the dock at the time of trial and evinced that she went to the place of occurrence after hearing a commotion. Her brother Ratan Dey was already there. Her father Narayan Dey, the deceased, also arrived there. While her father and Ratan were going back home, at that time accused-Dulal Das came and assaulted Ratan mercilessly. Her father Narayan Dey intervened and was assaulted by Dulal with fists and blows. Dulal also threw her father down the bank of the river. According to her, the accused persons, after assaulting her father left the place of occurrence. P.W. 5 Sri Uttam Dey, son of the deceased, who arrived at the place of occurrence after hearing a commotion, stated that he saw accused-Jantu assaulting his brother Gautam and other accused persons also joined him. All of them assaulted his father Narayan with fists and blows. Thereafter, the accused persons threw away Narayan from the embankment down below to the bank of the river Bhogdoi. P.W. 6, wife of the deceased, evinced that her husband was assaulted by the accused persons. She specifically mentioned that Dulal Das had assaulted her husband. According to her, her husband was taken to Dr. Tapan Bora for treatment and therefrom back to the house where he succumbed to his injuries at about 7 p.m. on the same day. Immediately, an ejahar was lodged with the police.
7. The above three witnesses were present at the place of occurrence and they also sustained injuries in the assault mounted upon them by the appellants. They have been cross-examined by the defence. Nothing could be elicited out of them to over shadow the prosecution version that Narayan Dey died because of the injuries caused on his person by the appellants. The evidence recorded in brief also do not suggest of any exaggeration or embellishment on their part. The injuries sustained by the witnesses have been proved by Dr. Tapan Bora, which alternately support the prosecution version that the appellants had attacked Narayan Dey and others and caused injuries on their persons. The cumulative effect of the evidence of the above three witnesses clearly show that the appellants in furtherance of their common intention perpetuated the crime which resulted in the death of Narayan Dey. We have, therefore, no reason to differ with the opinion of the learned Sessions Judge that the appellants have caused death of Narayan Dey and injuries to the witnesses.
8. Mr. Thakur, learned counsel for the appellants, pointed out that the appellants had no intention to kill Narayan Dey as there is, admittedly, no deep seated enmity between them. Mr. Thakur further submitted that the injuries sustained by the deceased did not show that these were sufficient in the ordinary course to cause death, no blunt or sharp weapons having been used.
9. We have given due consideration to the above submission of Mr. Thakur. The evidence on record do not pin point the part played by each of the accused persons except Dulal and Jantu. There is no evidence of use of any deadly weapon by any of the accused persons. They had simply dealt with fist blows. The injuries sustained by de-ceased-Narayan on the temporal region must have been due to his fall from the embankment to the bank of the river below. There is, of course, evidence to show that accused-Dulal along with other accused persons threw Narayan Dey from the embankment. The evidence of P.W. 4 and P.W. 5 to this effect remains un-assailed.
10. It further appears that Narayan Dey was taken to the residence of Dr. Tapan Bora for treatment at the first instance. From there he was shifted to his residence there he died on the same day at about 7 p.m. If proper medical care would have been provided, his lift perhaps could have been saved. Hence, we accept the submission of Mr. Thakur that the accused persons did not have any intention to cause death of Narayan Dey. There was, undoubtedly, a ‘marpit’ (fight) in which Narayan sustained injuries. From this, intention to cause death cannot be attributed particularly when the evidence is inadequate in respect of the nature of the weapons, if any, used. In our opinion, conviction of the appellants under Section 302, I.P.C. is not warranted under the given circumstances. Rather, conviction under Section 326, I.P.C. would be just and proper in the instant case. We, therefore, convict the appellants Dulal Das and Jantu Das under Section 326 read with Section 34, I.P.C. and sentence them to undergo rigorous imprisonment for three years and to pay a fine of Rs. l.000/- each, in default, to further rigorous imprisonment for one month. Considering the insignificant part played by the appellants-Jatin Das and Umesh Das, we sentence them to suffer rigorous imprisonment for three months and to pay a fine of Rs. 500/- each, in default, to further rigorous imprisonment for 15 days. Conviction and sentence awarded by the learned Sessions Judge accordingly stands modified.
11. Appellants-Dulal Das and Jantu Das shall surrender forthwith to serve the remaining part of the sentence. Since Jatin Das and Umesh Das were in jail beyond three months, they shall be discharged forthwith after necessary verification.