Gauhati High Court
Smti Rinkumoni Das vs Sri Chandradweep Bhagat And Anr on 12 March, 2021
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GAHC010030732016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./302/2016
SMTI RINKUMONI DAS
WIDOW OF LATE NAYAN DAS, R/O BAMUNPARA, BAHARI, P.S. JRABARI,
DIST. BARPETA, ASSAM.
VERSUS
SRI CHANDRADWEEP BHAGAT and ANR
S/O SRI MADAV BHAGAT, R/O CHANDRA CHOUDHURY PATH, HOUSE NO.
34, P.O. BHETAPARA, P.S. BASISTHA, DIST. KAMRUP M, ASSAM.
2:THE STATE OF ASSA
Advocate for the Petitioner : MS.J DAS
Advocate for the Respondent : MR.H K BARUAHR-1
BEFORE
HONOURABLE MR. JUSTICE N. KOTISWAR SINGH
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
JUDGMENT
Date : 12-03-2021
(N. Kotiswar Singh, J)
Heard Mr. S. Sahu, learned counsel for the appellant. Also heard Mr. D. Gogoi, learned
counsel for respondent No.1 and Mr. M. Phukan, learned Additional Public Prosecutor, Assam.
2. A First Information Report was lodged on 17.05.2012 by one, Pranab Das (PW1),
alleging that the deceased was hit on his head by a piece of brick by respondent No.1 after a
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quarrel and he was declared dead after being taken to Gauhati Medical College and Hospital
(GMCH). Consequent upon the said complaint, necessary investigation was carried out and
charge-sheet was filed against the respondent No.1.
3. Respondent No.1 was accordingly charged for committing offence under Section 302
IPC.
4. Prosecution examined as many as 8 witnesses to substantiate its case and adduced
other evidences.
5. The trial Court, however, held that the prosecution failed to prove the charge beyond
reasonable doubt and acquitted him of the charge under Section 302 IPC by giving benefit of
doubt.
6. Being aggrieved by the aforesaid acquittal of respondent No.1, the present appeal has
been filed by the widow of the deceased.
7. The prosecution case is discernible from the evidence of PW1 and PW2, who are
stated to be eye witnessesof the incident, the rests, being formal witnesses and not eye
witnesses.
8. PW1, who was the complainant testified before the Court that he knew the deceased
who was his tenant. He also knew the accused-respondent No.1. He stated that after hearing
a commotion outside his house at about 11.30 p.m. on 16.05.2012, he called out Nayan, the
deceased. Though Nayan did not give any reply, he heard opening of the gate. When PW1
came out, he saw members of the accused-person's family hurling abuses at the gateway of
their house. As they were hurling abuses in filthy language, PW1 asked them to stop doing
so. Then the father-in-law and brother-in-law of the accused threatened PW1. Nayan was
then standing nearby. As they were abusing PW1, PW1 rushed towards them to assault them.
Then the accused said that PW1 is their neighbour and told them not to misbehave with him.
At that time, thinking that PW1 had assaulted father-in-law of the accused, the wife of the
accused came to assault PW1, when the deceased, Nayan resisted her. They also rebuked
Nayan. Subsequently, PW1 managed to persuade all to go back. Thereafter, as Nayan and
PW1 were returning home, the accused hurled a piece of brick towards them. The brick hit
Nayan on the head and he sustained injury. Thereafter, he was taken to hospital where the
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doctor declared him dead. PW1 also stated that the quarrel broke out all of a sudden and
accused-respondent No.1 did not have any grudge against Nayan from before.
9. In his cross-examination, PW1 stated that while returning home after the altercations
and commotions, Nayan was proceeding ahead and PW1 was following him and there were
lights at the campus at the time of the incident. PW1 also stated that accused hit Nayan from
behind and on being hit, Nayanfell down and he tried to save Nayan. PW1 denied the
suggestion of the defence that he did not see as to who had assaulted Nayan. PW1 stated
that as Nayan reached the front of their gate, PW1's wife shouted " Marile, marile" (is being
hit, is being hit). Thereupon, PW1 looked back and saw the accused hurling a piece of brick.
He also stated in the cross-examination that he did not say before the police in his statement
that he had looked back when his wife shouted, as the police did not ask him in detail about
the incident. PW1 denied having given false evidence and also denied that the accused did
not assault Nayan with a piece of brick, which was shown to him.
10. As far as PW2, Smt. Anita Das, the wife of PW1 is concerned, she also stated in similar
lines as that of PW1. She stated that on hearing the commotion outside, her husband called
Nayan and went outside. Nayan had already gone out. After a short while, the commotion
subsided. She stated that while her husband was returning with Nayan, an altercation took
place with Nayan again and Nayan uttered to the wife of the accused a filthy word. At that
time, PW2 came to the road to call her husband. She stated that when Nayan uttered that
filthy word, the accusedbrought a piece of brick and when Nayanhad reached the gate of
their house, the accused hurled the brick towards Nayan. Nayan sustained injury on his head
and he died in the hospital. Police seized the piece of brick.
11. In her cross-examination, PW2 denied that she had not stated before the police that
the accused had taken a piece of brick. She also stated that when the accused brought the
piece of brick, she shouted "Namaribi, Namaribi" (do not hit, do not hit). She also stated that
Nayan was going ahead of her. She denied that she did not see the assault being made with a
piece of brick. She reiterated that Nayan sustained injury on his forehead (above the eyes).
PW2 denied that she was not present on the road at the time of occurrence. She denied that
she had not seen the occurrence. She also denied that she learnt about the incident from her
husband (PW1). She stated that commotion used to take place in the house of the accused
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and they (PW1 and others in the family) got disturbed because of the commotion raised by
the accused and his family.
12. PW3, Smt. Rinkumoni Das, the appellant herein,is the wife of the deceased who was
at the house of his father-in-law at Bahari at the time of occurrence. She is not an
eyewitness. She came to know about the incident from her uncle the following day in the
morning. The dead-body of her husband was taken to the village where she saw injury on the
body of her husband. She learnt from the landlord (PW1) that in the preceding night, the
incident had taken place and because of hurling of a piece of brick, her husband died after
sustaining the injury.
13. PW4, Sri Tapan Das, is the younger brother of the deceased. He knew the accused,
who was the neighbour of the deceased. He is also not an eyewitness. At the time of the
incident, he was at Beltola and when he got the information that Nayan had been taken to
hospital, he went there and found his brother lying dead. He saw injury on Nayan's head. At
that time, he was informed by PW1 that a quarrel had taken place with the accused and the
accused had assaulted his brother with a piece of brick.
14. PW5, Sri Bhajendra Hazarika,is the father-in-law of the deceased who was not an
eyewitness. He stated that the complainant had come to the Police Station and informed that
the accused assaulted Nayan with a piece of brick and he died on the spot. As PW5 was in
the Police Station, he immediately rushed to the hospital and found the victim lying dead.
PW5 saw injury on the forehead and on the body of the deceased. He was a witness to the
inquest.
15. PW6, Dr. Richa Pandey, is the doctor who performed post-mortem examination on the
dead-body of the deceased. PW6 found the following injuries on the dead-body of the
deceased: -
"1. Laceration of size 4 cm x0.5 cm x muscle deep present horizontally over the right
eyebrow lateral aspect, margins irregular and confused.
2. Multiple abrasions 0.2 x 0.2 cm size to 0.5 x 0.1 cm present on the right upper
chest wall above the nipple and below the clavicle.
3.Curved abrasion of size 0.5 cm x 0.3 cm present with curvature downward 9.5 cm
above nipple and 9 cm from midline towards the right, red in colour.
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4.Curved abrasion of size 0.5 cm x 0.3 cm present on the right, 9 cm below shoulder
tip and 4 cm lateral to injury (3) red in colour.
5.Abrasion 1 x 0.3 cm present on the left shoulder 16 cm above nipple and 11 cm from
midline, red in colour.
6.Abrasion present on the back of left elbow 5 cm x 5 cm in size red in colour.
7.Abrasion of size 3 cm x 2 cm present on the dorsal aspect of left wrist, red in colour.
8.Abrasion of size 3 cm x 2 cm present on the lateral aspect of right arm 17 cm above
elbow 2 in number.
9.Abrasion of size 1 cm x 1 cm present on back of right elbow red in colour.
10.Contusion of size 2 cm x 1 cm present in the left thenar eminence ."
16. According to PW6, death was due to coma as a result of head injuries sustained and
the injuries were antemortem caused by blunt forced impact. She also opined that injury on
the head is sufficient to cause death in the ordinary course of nature and the head injury can
be caused by a weapon marked as Mat. Ext.1, which is the brick seized from the place of the
occurrence by the Investigating Officer.
17. PW7, Sri Amulya Kumar Das, is the neighbour of the deceased. He testified that the
occurrence took place on 16.05.2012 at about 11.30 pm. He stated that while he was
sleeping, his wife, hearing the halla near the house of PW1, woke him up. He got up and
while coming out, he noticed that people had gathered in front of the house of PW1 and saw
the injured with bleeding injuries on his head. PW7 also came to know from the people
gathered there that accused inflicted injury by means of a brick and the injured was shifted to
hospital. Later, PW7 came to know that the victim had succumbed to the injuries.In the cross-
examination, he stated that he did not see the piece of brick but he stated that there was a
gate in front of the house of PW1.
18. PW8, Sri Ratneswar Barman, is the Investigating Officer of the case who testified that
on the day of the occurrence, Officer-in-Charge of Basistha PS received an FIR from one
Pranab Das (PW1). Based on the FIR, Basistha PS Case No.324/2012 under Section 302 IPC
was registered and the case was endorsed to PW8 for investigation. PW8 testified the Ext.1
as the FIR. PW8 stated that on 17.05.2012, the informant (PW1) appeared at Basistha PS and
reported about the occurrence which was entered in Basistha PS General Diary vide Entry
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No.688 dated 17.05.2012. The Officer-in-Charge of Basistha PS then informed him about the
incident and directed him to proceed to the place of occurrence. He visited the place of
occurrence and drew a sketch map. Ext.9 is the sketch map of the place of occurrence. PW8
then recorded the statements of the witnesses and searched for the accused. However, the
accused could not be located. The informant, Pranab Das (PW1) reported him that the injured
Nayan Das had expired in the GMCH, Guwahati. He seized the piece of brick used by the
accused, which was lying at the place of occurrence, (Mat. Ext.1).
PW8 held inquest on the body of the deceased. Ext.4 is the inquest report. He sent the
dead-body to the Forensic Science Department vide Ext.8, the challan. PW8 arrested the
accused at Lalmati area. On completion of investigation, PW8 submitted the charge-sheet,
Ext.10, against the accused under Section 302 IPC.
19. In his cross-examination, PW8 stated that he had not seen the original G.D.E. No. 688
dated 17.05.2012 and it is mentioned in the FIR that Nayan Das, the deceased, was assaulted
by one brick. He had not noted that the seized piece of brick which was used by the accused
contained blood stain. He denied the suggestion that he did not seize the brick from the place
of occurrence. He did not send the seized brick to Forensic Science Laboratory for serological
test. PW8 stated that PW1, Pranab Das, did not state before him that he saw the accused
hurling a piece of brick on the deceased. PW2 did not state in her statement given before
PW8 that the accused-respondent No.1 caused hurt to the deceased by a piece of brick.
20. The learned trial Court on analysis of evidences held that there was no dispute from
the defence side that the deceased Nayan Das met with a homicidal death.Considering the
inquest report as well as the post-mortem report which clearly indicated head injury and the
opinion of the doctor that the cause of death was due coma as a result of ante mortemhead
injuries caused by blunt forced impact of weapon like Mat. Ext.1, the seized brick, and on the
basis of the evidence of PW1, Pranab Das and PW2, Smt. Anita Das, the eye witnesses, the
learned trial Court did not find any difficulty in holding that the cause of death of Nayan Das
was certainly an act of 'culpable homicide' within the meaning of Section 299 IPC.
21. The learned trial Court considering the ante mortem head injury sustained by the
deceased took the view that the deceased succumbed to his injuries sustained on his head,
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which is a vital part of the body caused by blunt weapon like M. Ext.1, the seized brick.
22. Thus, the learned trial Court was fully satisfied that the deceased died due to the
injury sustained on a vital part of the body and the death can be said to be 'culpable
homicide' within the meaning of Section 299 IPC. However, as regards the complicity of the
accused-respondent No.1, the learned trial Court found that it was not proved beyond
reasonable doubt. The learned trial Court observed that as per the evidence of PW8, S.I.
Ratneswar Barman, the Investigating Officer, the initial information about the incident was
recorded in the Basistha PS G.D. Entry No.688 dated 17.05.2012 and as directed by the
Officer-in-Charge, PW8 launched investigation by proceeding to the place of occurrence.
However, no certified copy of the said G.D. Entry was produced before the Court and, as
such, the First Information Report regarding the details of the occurrence has remained not
exhibited without advancing any explanation. The learned trial Court noted that PW1 did not
state in his evidence that he appeared at Basistha Police Station and reported about the
occurrence before the written FIR was lodged. According to the learned trial Court, if the
version of PW8 is to be believed, the written FIR was lodged after the death of Nayan Das
who was brought dead to the GMCH after progress of investigation at the place of occurrence
conducted by PW8 and, as such, it is hit by Section 162 Cr.PC and cannot be treated as the
First Information Report. Accordingly, the trial Court observed that the possibility of
embellishment of the actual occurrence in the written FIR lodged after the progress of the
investigation cannot also be ruled out beyond doubt.
23. The learned trial Court further examined as to the identity of the accused-respondent
No.1 and took the view that identity of the accused could not be established beyond doubt.
The learned trial Court also took the view that in the absence of credible evidence confirming
the circumstances of the incident in which the deceased sustained injuries, it is difficult to rely
on the evidence of PW1 and PW2 to hold the accused-respondent No.1 responsible for the
vital injury sustained by the deceased. The learned trial Court also noted that the prosecution
failed to explain how the deceased Nayan Das sustained as many as 10 injuries mentioned in
the post mortem report. The trial Court also observed that the evidence of prosecution
witnesses show that there was a hue and cry which broke out on public road near the houses
of PW1 and PW2, the deceased and the accused's family, and the incidence of quarrel was an
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usual phenomenon causing nuisance to the neighbours. The learned trial Court also held that
there is no answer on evidence as to how the domestic intolerance came to the public road in
the night hours and how the deceased Nayan Das came to the public place before arrival of
his landlord and sustained multiple injuries at the place. The learned trial Court also noted
that the accused-respondent No.1 in his statement under Section 313 Cr.P.C stated that the
deceased was an alcohol addict and he often created nuisance in the locality in an inebriated
condition and PW2 stated that the deceased uttered some unwarranted provoking words
towards the wife of the accused. The learned trial Court also noted that though the accused
had not proved his plea of alibiin the relevant night, the evidence clearly show involvement of
many persons in the occurrence that took place on public road during night hours and that it
has become very difficult for the learned trial Court to hold the accused solely responsible for
the ante mortemmultiple injuries sustained by the deceased beyond reasonable doubt.
Accordingly, the learned trial Court held that benefit of doubt of these aspects, based on the
evidence on record, should certainly go to the accused.
24. Accordingly, the learned trial Court took the view that the alleged occurrence of
confused quarrel had taken place between the family members of the accused and the
deceased Nayan and in a heat of passion, Nayan was assaulted causing multiple injuries
leading to his death. Accordingly, the learned trial Court took the view that in view of the
facts and circumstances of the case, the offence undoubtedly attracts Part-II of Section 304
IPC but the accused cannot be held guilty of the offence under Section 302 IPC beyond
reasonable doubt. Accordingly, the learned trial Court concluded that the prosecution has
failed to prove the charge under Section 302 IPC against the accused beyond reasonable
doubt and acquitted the accused-respondent No.1 and set him at liberty by giving the benefit
of doubt.
25. We, having perused the evidence on record, while agreeing with some of the
conclusions arrived at by the learned trial Court, however, are unable to agree with all.
26. As far as the death of the deceased caused by the head injury is concerned, it can be
said to have been proved beyond reasonable doubt. The post mortem report clearly indicates
that the deceased had suffered head injury with laceration of size 4 cm x 0.5 cm x muscle
deep present horizontally over the right eyebrow lateral aspect as noted in the post mortem
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report.The scalp of the deceased was pale and there was longitudinal fracture of anterior
cranial fossa on the right side of the skull as mentioned in the postmortem report. The
postmortem report clearly mentions that the death was due to coma as a result of head
injuries sustained and the said injuries were ante mortemcaused by blunt forced weapon. It
was also opined that the head injury can be caused by weapon like M. Ext.1. Thus, there are
sufficient evidences to show that the deceased died due to the head injury caused by a blunt
weapon, which can be caused by a brick, which was seized in course of the investigation and
proved. To that extent, this Court would concur with the finding of the learned trial Court that
the deceased succumbed to his injuries on his head, that is, a vital part of the body caused
by blunt weapon like M. Ext.1 (the seized brick).
27. As regards the other injuries, it is to be noted that these are abrasions caused on right
upper chest, shoulder tip, right arm, left elbow, etc and these were not responsible for the
death of the deceased. Even though, there is no proper description as to how the deceased
received these injuries, these can be traced to the quarrel and confrontations of which there
are sufficient evidences, as also noted by the learned trial Court that therewere quarrel and
confrontation between the deceased and the complainant on one side and other members of
the accused-respondent No.1 on the other side.
28. PW1 in his deposition had stated that thinking that PW1 had assaulted the father-in-
law of the accused, wife of the accused came to assault PW1 and then deceased Nayan
resisted her. That there was an altercation between the parties is also on record. Therefore,
definitely, under such a surcharged atmosphere, when there is confrontation and resistance,
the abrasions on the body of the deceased can be caused. Further, some of the injuries
referred to in the postmortem report could have been caused due to fall of the deceased after
being hit by the brick. Thus, even if the injuries,other than the head injury, mentioned in the
postmortem report were not explained in clear terms by any of the witnesses, the said
injuries could be caused by scuffle amongst the parties.
29. What is, however, important to note is that the learned trial Court on assessment of the
evidences on record, took the view that the alleged acts of the accused attract Exception-1 to
Section 300 IPC. In coming to the said conclusion, the learned trial Court took the view that
the accused had hurled a piece of brick on being provoked by certain abusive words uttered
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by the deceased for the wife of the accused, which led to sudden deprivation of the power of
self-control of the accused and accordingly, came to the conclusion that the case of the
accused would fall within Part-II of Section 304 IPC. The learned trial Court after holding that
in view of the facts and circumstances of the case, the offence undoubtedly attracts Part-II of
Section 304 IPC and that the accused had hurled a piece of brick on being provoked by
certain abusive words uttered by the deceased, which led to sudden deprivation of power of
self-control, took the view that the accused cannot be held guilty of the offence under Section
302 IPC beyond reasonable doubt and accordingly acquitted the accused of the charge under
Section 302 IPC.
30. We are also of the view that perhaps a cogent case has not been made out by the
prosecution to bring the charge under Section 302 IPC against the accused beyond
reasonable doubt. Yet, we are of the view that certainly a case has been made out against
the accused for committing an offence of culpable homicide not amounting to murder
punishable under Part II of Section 304 IPC.
31. It is not in dispute that the deceased had died due to the injury received by him on his
head, which was caused by a piece of brick, which was seized and proved. This fact can be
said to have been proved beyond reasonable doubt. The only issue is about the linkage of the
said factum of death with the act of the accusedso as to fasten liability to the accused-
respondent No.1.
32. There are ample evidences on record thatthere had been certain altercation between
the deceased and his landlord, PW1, the complainant on one side and the family members of
accused on the other side on the fateful night. As to what had caused the same is not on
record, which perhaps also does not matter much. Yet, the fact remains that there had been
an altercationand confrontation between these twogroups/parties.
33. PW1 in his statement stated that the wife of the accused thought that he(PW1) had
assaulted father-in-law of the accused whereupon she came to assault PW1 and, then,
deceased Nayan resisted her. If there were resistance, certainly, there would have been
certain scuffle with the deceased and the other family members of the accused. If there was
resistance by a person on an aggressive behaviour, it would naturally lead to certain scuffle,
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which couldresultin the abrasive injuries being suffered by the deceased as mentioned in the
post mortemreport.
34. PW2 also stated in her deposition that there was a commotion outside her house and
hearing the same, her husband, PW1, called the deceased and they went outside. PW2 also
states that after her husband returned along with the deceased, an altercation again took
place with the deceased and the accused and his party. The deceased had apparently abused
the wife of the accused with certain filthy words. Then the accused brought a piece of brick
and later hurled the same towards the deceased.
35. The scenario, which could be visualised based on evidences on record, is that it was
not a mere peaceful gathering of people but certainly a non-peaceful gathering of a group of
persons involving altercation, confrontation, scuffle, etc. In other words, the atmosphere was
quite surcharged. Thus, receiving of abrasive injuries by the deceased can be explained by
this confrontation between the two groups of persons.
36. We have also noted the statement of PW2 that the accused-respondent No.1 hurled a
piece of brick towards the deceased after the deceased used certain filthy word against the
wife of the accused. This act of accused-respondent No.1 can be due to sudden provocation
leading to the assault of the deceased by the accused. Therefore, it does not appear to be a
pre-meditated, pre-planned incident where the accused hurled a piece of brick towards the
deceased with the intention to cause his death. Rather, it appears to be a retaliatory violent
act on the part of the accused on losing his temper on hearing his wife being abused by the
deceased, as deposed by PW2. To that extent, we are satisfied that though the accused can
be said to have caused the death of the deceased, there was no intention on the part of the
accused to cause death of the deceased. The said act of hurling the piece of brick by the
accused-respondent No.1 towards the deceased was not done, in our view, with the intention
of causing his death. Though the accused had hurled the piece of brick, which hit the head of
the deceased, it cannot be said with certainty that he was aiming at the head only. The brick
could have landed on any other part of the body as the accused was hurling the brick from a
distance. It is not a case that the accused was hitting the deceased on his head from a close
quarter knowingly. Of course, it can be said without any doubt that the act committed by the
deceased in hurling the brick towards the deceased could have caused injuries which could
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have led to death. As mentioned above, the said hurling of brick by the accused was done in
a heat of the moment on being provoked by the alleged filthy word uttered by the deceased
towards the wife of the accused.
37. The fact of the accused hurling a piece of brick towards the deceased was clearly
witnessed by PW1 and PW2. Merely because they had not stated so in clear and explicit
terms in their statements before the police recorded under Section 161 Cr. PC will not make
any difference since the said fact was clarified in their cross-examination by the defence. The
clarification was not made in course of their examination-in-chief. Though the brick was
thrown from behind by the accused towards the deceased, PW2, who was already at the
place of occurrence on the road, clearly saw the accused hurling the piece of brick and
accordingly shouted 'Namaribi, Namaribi'(do not hit, do not hit). When PW2 shouted as such,
PW1, who was following the deceased, looked back and saw the accused hurling the piece of
brick.
The fact that the PW1 and PW2 knew the accused as being their neighbour and that
they witnessed him hurling the brick had clearly come out in the evidence. There is nothing
on record which could indicate that PW1 and PW2 had falsely implicated the accused. They
were staying in the same neighbourhood and had no inimical relationship with the accused-
respondent No.1. PW1 had also frankly stated that the accused-respondent No.1 had no
inimical relation with the deceased. Thus, the identity of the accused as the one who threw
the brick which hurt the deceased has been fully established without any doubt from the
evidences of PW1 and PW2.
38. It is also on record that the area was well-lighted. PW1 had stated during cross-
examination that at the time of the incident, lights were on in the campus and, as such, even
if many people had assembled at the time of the altercation, which preceded hurling of the
piece of brick by the accused, since PW1 and PW2 had clearly witnessed the act of the
accused hurling the brick towards the deceasedand since their evidence could not be shaken,
it cannot be said that the act of the deceased in hurling the brick towards the deceased,
which caused the head injury and which ultimately caused the death of the deceased, has not
been established beyond reasonable doubt. However, as mentioned above, though this
factum of causing death of the deceased by the accused-respondent No.1 was established,
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the motive and intention to cause death was not clearly established. Accordingly, the
accused-respondent No.1 certainly deserves the benefit of doubt as far as the charge under
Section 302 IPC is concerned. However, the evidence on record clearly provesthe existence of
ingredients making out an offence under Part-II of Section 304 IPC.
39. As regards the difference in the scope of Sections 302 and 304 IPC, one may refer to
the decision in Rampal Singh v. State of U.P. , (2012) 8 SCC 289 wherein it was held
that,
21.Sections 302 and 304 of the Code are primarily the punitive provisions. They
declare what punishment a person would be liable to be awarded, if he commits
either of the offences. An analysis of these two sections must be done having regard
to what is common to the offences and what is special to each one of them. The
offence of culpable homicide is thus an offence which may or may not be murder. If it
is murder, then it is culpable homicide amounting to murder, for which punishment is
prescribed in Section 302 of the Code. Section 304 deals with cases not covered by
Section 302 and it divides the offence into two distinct classes, that is, ( a) those in
which the death is intentionally caused; and (b) those in which the death is
caused unintentionally but knowingly. In the former case the sentence of
imprisonment is compulsory and the maximum sentence admissible is imprisonment
for life. In the latter case, imprisonment is only optional, and the maximum sentence
only extends to imprisonment for 10 years. The first clause of Section 304 includes
only those cases in which offence is really "murder", but mitigated by the presence of
circumstances recognised in the Exceptions to Section 300 of the Code, the second
clause deals only with the cases in which the accused has no intention of injuring
anyone in particular. In this regard, we may also refer to the judgment of this Court
in Fatta v. Emperor [AIR 1931 Lah 63] , 1151. C. 476 (Refer: Penal Law of India by Dr
Hari Singh Gour, Vol. 3, 2009.)
Further, as to which of the Parts of Section 304 IPC the offence will fall, it was further
held that,
"24. A Bench of this Court in Mohinder Pal Jolly v. State of Punjab [(1979) 3 SCC 30 :
1979 SCC (Cri) 635 : AIR 1979 SC 577] stating this distinction with some clarity, held
as under: (SCC pp. 36-37, para 11)
"11. A question now arises whether the appellant was guilty under Part I of
Section 304 or Part II. If the accused commits an act while exceeding the right
of private defence by which the death is caused either with the intention of
causing death or with the intention of causing such bodily injury as was likely to
cause death then he would be guilty under Part I. On the other hand if before
the application of any of the Exceptions of Section 300 it is found that he was
guilty of murder within the meaning of clause 'Fourthly', then no question of
such intention arises and only the knowledge is to be fastened on him that he
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did indulge in an act with the knowledge that it was likely to cause death but
without any intention to cause it or without any intention to cause such bodily
injuries as was likely to cause death. There does not seem to be any escape
from the position, therefore, that the appellant could be convicted only under
Part II of Section 304 and not Part I."
40. What we have noted as discussed above is that when the accused threw the brick
towards the deceased, he did not have any intention to cause death but only to cause some
injury. It has not been proved beyond reasonable doubt that he did so knowing that it would
certainly cause his death. However, it can be said to have been proved that the accused
hurled the brick towards the deceased to cause some injury, though it could have led to his
death. Hence, the case of the accused will fall under " Fourthly" of section 300 IPC and
hence will be covered by Part II of Section 304 IPC.
Accordingly, the impugned order dated 23.04.2015 acquitting the Respondent no.1 is
set aside and we convict him under Part II of Section 304 IPC.
41. However, before we part with this appeal, we would like to clarify certain observations
and conclusions of the learned trial Court with which we are not agreement with.
It has been held by the learned trial Court that the lodging of the FIR is doubtful as
the GD Entry was not produced before the Court. First of all, the defence never questioned
the genuineness of the FIR. Be that as it may, non-production of GD Entry cannot be said to
be fatal to the genuineness of the FIR. It is not really the responsibility of the informant how
the first information is recorded by the police. If the police first makes an entry in the General
Diary about certain information and thereafter registers an FIR on the basis of the complaint,
it cannot vitiate the investigation. Since, the FIR was lodged soon after the incident, it cannot
be said that there was embellishment in the FIR. It was not suggested that the FIR was
registered after the police had already started the investigation. There is nothing on record to
suggest that the FIR was registered belatedly after the investigation had started.
Learned trial Court also doubted that the identity of the assaulter was not established
beyond doubt. As discussed above, PW1 and PW2 had clearly witnessed the accused-
respondent No.1 hurling the brick towards the deceased. Though it was during night time, it
was well lit and the lights were on in the campus at the time of incident. Further, though
there was a crowd as testified by PW3, initially, the quarrel, confrontation, hullawas amongst
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the family members of the accused-respondent No.1 when PW1 and the deceased went to
intervene. Thus, it is not a case where there were too many people involved making
identification difficult. The incident happened in the neighbourhood only where the people
would be expected to be able to identify the neighbours. Thus, identification of the person
who assaulted the deceased, i.e., the accused by the PW1 and PW2 who were his neighbours
cannot be said to be doubtful.
42. Further, the learned trial Court also observed that PW1 and PW2 did not state in their
statement before the police recorded under Section 161 Cr.PC that they saw the accused-
respondent No.1 hurling the brick towards the deceased cannot be said to be a material
improvement. PW1 and PW2 stated so in clarification when cross-examined by the defence.
Further, PW1 had also clarified that PW1 did not mention about the fact that PW2 had
shouted "Marile" "Marile"whereupon he saw the accused-respondent No.1 hurling the brick
towards the deceased, as the police did not ask him in detail cannot be said to be
untrustworthy. As discussed above, PW1 stated so which being asked by the defence in the
cross-examination. Therefore, we do not consider such clarification to be material
improvement to discredit his evidence.
43. The learned trial Court had also misread the evidence of PW1 and PW2 when observing
that there was contradiction between PW1 and PW2 on the evidence that PW1 saw the
accused-respondent No.1 hurling brick towards PW2.
The learned trial Court made the observation that if the testimony of PW1 is to be
believed, the deceased was certainly behind him (PW1) and there was no possibility to see
the accused striking at Nayan, who was behind him.
PW1 never stated that the deceased was following him. In his cross-examination, PW1
very categorically stated that Nayan was proceeding ahead and PW1 was following him. Thus,
there is no contradiction between the statement of PW1 and PW2. PW2 also stated that the
deceased was going ahead of him. The picture which emerges is that PW2 was behind both
PW1 and the deceased and she saw the accused-respondent No.1 picking up a brick and
hurling towards the deceased whereupon PW1 turned his head and also saw the accused-
respondent No.1 hurling the brick.
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44. The learned trial Court also made the observation that PW7 did not see any brick. This
inability of PW7 to see the brick does not necessarily discredit the use of brick to hit the
deceased and its seizure doubtful. It is not necessary that everyone in the place of
occurrence has to witness the weapon of crime.
45. Learned trial Court also made a reference to the statement of the accused made under
Section 313 Cr.PCto the effect that the deceased was an alcohol addict and he often created
nuisance in the locality. Even this statement is taken to be true, it rather reinforces the
prosecution story that there was confrontation between him and the family members of the
accused. But, this fact does not distract from the fact that PW1 and PW2 saw the accused-
respondent No.1 hurling a brick on the deceased
Nayan causing injury on the head. Thus, this statement of the accused does not help him in
any manner to throw any doubt on the prosecution case that the accused-respondent No.1
hit the deceased with a brick.
46. Accordingly, and for the reasons discussed above, we express our inability to agree
with the conclusion arrived at by the learned trial Court in acquitting the accused from any
other offence, though he can be acquitted from the charge under Section 302 IPC by giving
benefit of doubt. We, however, hold that there are sufficient materials to convict the accused
under Part-II of Section 304 IPC and accordingly convict the accused-respondent No.1 under
Part-II of Section 304 IPC.
47. Considering the circumstances disclosed in the record, we are of the opinion that it will
serve the interest of justice if the accused is directed to undergo simple imprisonment for a
period of 5 (five) years. Accordingly, the accused-respondent No.1 shall surrender before the
Court of learned Sessions Judge, Kamrup (M) at Guwahati. Let the learned Sessions Judge,
Kamrup (M), Guwahati pass appropriate order(s)/warrant for his remand to judicial custody
for undergoing the imprisonment as directed above. Period of detention already undergone
by the accused-respondent No.1 during the period of investigation and trial, if any, shall be
adjusted against the period of imprisonment of 5 (five) years ordered.
48. The appeal is accordingly allowed as above.
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49. Remit the records to the learned Sessions Judge, Kamrup (M), Guwahati for doing the
needful.
JUDGE JUDGE
Comparing Assistant
