At, High Court of Gauhati
By, THE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA & THE HONOURABLE MR. JUSTICE MIR ALFAZ ALI
For the Appellant: Amicus Curiae. For the Respondents: -------
A.M. Bujor Barua, J.
1. Heard Mr. RM Choudhury, learned Amicus Curiae appearing for the appellant and Ms. S Jahan, learned Additional Public Prosecutor appearing for the State of Assam.
2. This is an appeal against the judgment and order dated 10.07.2015 of the learned Sessions Judge, Udalguri, Assam passed in Sessions Case No.124(DU)/2012, whereby the accused/appellant was convicted and sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs.5000/- and in default, rigorous imprisonment for another 03(three) months for committing the offence under Section 302/34 of the Indian Penal Code (in short IPC).
3. The prosecution case in brief is that an ejahar dated 10.03.2006 was lodged in the Orang police out post by Nahar Gore stating that the four accused persons named therein had killed his nephew Osal Gore, age 34 years by strangulating his neck and squeezing his testicles.
4. The informant Nahar Gore, who deposed himself as PW-6 had stated that on the given day, he heard hue and cry and came out of his house and thereafter went to the house of the deceased. Reaching there, he saw the deadbody of Osal Gore lying on the floor of his dwelling house. He further deposed that he saw mark of hanging around the neck of the deceased. He further deposed that upon arriving at the place of occurrence, he found Kalit Gore and Rupa, the daughter of the deceased.
5. Kolit Gour, who deposed as PW-1 had stated that he seen the incident and on the given day, the deceased had demanded some money from his daughter Rupa for procuring some alcohol. When Rupa had refused to give the money, the deceased attempted to assault her and in the circumstance, Rupa went and took shelter in the house of Jilalal Gour. Jilalal Gour pushed out the deceased Osal Gore from his residence and thereafter, the accused Sanjoy Gour, Mukunda Nath and Sumchai Gour had caught hold of Osal on the road and they assaulted him by fist blows. They also tied both the hands and legs of the deceased. Thereafter the accused Sanjoy Gour strangulated the deceased by pressing his neck and the accused Mukunda pressed both the testicles of the deceased. In the circumstance, the deceased died in the night. PW-1 also stated in his cross examination that the deceased Osal created nuisance in the house of Jilalal Gour and thereafter the accused persons were found taking Osal back to his house by assaulting him.
6. The daughter of the deceased Rupa while deposing as PW-2 had stated that on the given day, her father came back to the residence in the evening and demanded some money from her for purchasing alcohol. On being refused, he got angry and wanted to assault her. Thereupon, PW-2 ran to the house of Jilalal Gour and her father followed her. But Jilalal Gour pushed her father out by giving him a slap. Thereafter, the accused Samchai Gour, Mukunda Nath and Sanjay assaulted her father.
7. We do not take into consideration the other evidence being led as the evidence of PW- 1 and PW-2 are found to be the relevant evidence. From the evidence on record, it transpires that the intention of the accused persons was more to quieten the nuisance being created by the deceased rather than an intention to cause the death to him. Further the manner in which the death was caused where one person was strangulating him and the other persons were pressing the testicles of the deceased also shows that the immediate intention of the accused persons was more to quieten the deceased and take him back to his house rather than to cause immediate death to him. It is also taken note of that the deceased had died sometime in the night as his daughter is found his deadbody only in the morning, meaning thereby that death was not instantly caused upon the strangulation, but on the other hand, the strangulation may have been resulted in the death of the deceased and that to not immediately, but some time later in the night.
8. In the aforesaid mitigating circumstance, we are of the view that the accused appellant by taking into account the provisions of Section 34 of the IPC is to be convicted for an offence under section 304 Part-II of the IPC rather than a conviction under Section 302 IPC. Although the appellant Mukunda was not involved in pressing the neck, but by taking into consideration the provisions of Section 34 of IPC, a common intention of all the three accused cannot be ruled out to cause whatever assault was done on the deceased.
9. Accordingly, the accused appellant is convicted under Section 304 Part-II/34 of the IPC instead of Section 302 IPC and sentenced to imprisonment for the period already undergone. It is stated that the accused appellant is in prison for a period of more than five years. Accordingly, the period undergone is the sentence imposed on the accused appellant. The accused appellant Mukunda Nath be released forthwith provided he is not wanted in connection with any other offence.
10. The appeal is partly allowed by converting the conviction
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to Section 304 Part-II IPC from Section 302 IPC and reducing the sentence from life imprisonment to that of the period of imprisonment already undergone. 11. Before parting with the record, we appreciate the valuable service rendered by Mr. RM Choudhury, learned Amicus Curiae. Accordingly, it is directed that an amount of Rs.7,500/- as legal fees be paid to him by the High Court Legal Service Committee upon production of a copy of this judgment and order. 12. The appeal is partly allowed. 13. Send back the LCR immediately.