Anil Kujur vs The State Of Assam
2023 Latest Caselaw 2572 Gua

                                                                         Page No.# 1/19

GAHC010117302019




                    THE GAUHATI HIGH COURT AT GUWAHATI
         (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)

                            PRINCIPAL SEAT AT GUWAHATI


                          CRIMINAL APPEAL No. 50(J)/2019


     ANIL KUJUR S/O. SRI WARISH KUJUR,
     R/O. MOINAJULI, P.S. RANGAPARA,
     DIST. SONITPUR, ASSAM.
                                                .....APPELLANT
           VERSUS
     THE STATE OF ASSAM

     REP. BY PP, ASSAM.



                                                ....RESPONDENT.

Advocate for the Petitioner : MS. DEBASHREE SAIKIA, AMICUS CURIAE Advocate for the Respondent : PP, ASSAM AND CRIMINAL APPEAL NO. 51 (J)/2019

WARISH KUJUR S/O. LT. KARCHEL KUJUR R/O. MOINAJULI P.S. RANGAPARA DIST. SONITPUR, ASSAM.

........APPELLANT Page No.# 2/19

VERSUS

THE STATE OF ASSAM REP. BY PP ASSAM.

..........RESPONDENT

Advocate for appellant: MS. R D MOZUMDAR, AMICUS CURIAE Advocate for the respondent: MS S JAHAN, ADDL. P.P.

                                          BEFORE
                      HON'BLE MR. JUSTICE LANUSUNGKUM JAMIR
                        HON'BLE MRS. JUSTICE MALASRI NANDI


Date of hearing             :    20.04.2023


Date of judgment           :     19.06.2023


                            JUDGEMENT AND ORDER (CAV)

(Malasri Nandi, J.)

Heard Ms D Saikia, learned Amicus Curiae appearing on behalf of the accused

appellant in Criminal Appeal 50 (J) of 2019 and Ms R D Mozumdar, learned Amicus Curiae

appearing on behalf of the accused/ appellant in Criminal Appeal No. 51 (J) of 2019. Also

heard Ms S Jahan, learned Additional Public Prosecutor for the State of Assam.

2. Both the appeals are directed against the Judgment and Order dated 28.01.2019, Page No.# 3/19

passed by the learned Additional Sessions Judge (FTC), Sonitpur, Tezpur, in connection with

Sessions Case No. 215/2011, whereby both the accused appellants were convicted under

Sections 302/34 IPC and sentenced them to undergo Rigorous Imprisonment for Life and to

pay a fine of Rs. 5,000/- (Rupees Five Thousand) each, and in default of payment of fine,

further Rigorous Imprisonment for 3 (three)months each.

3. The case of the prosecution in brief is that the informant Monoj Baruah, Welfare Officer

of Dhulapadung Tea Estate, lodged an FIR on 15.08.2011, before the Officer-In-Charge,

Rangapara Police Station, stating inter alia that on 14.08.2011, at about 09:30 pm, one

Marshal Kujur, resident of Line No. 15, Moinajuli Division of Dhulapadung Tea Estate was

assaulted by his father Waris Kujur and elder brother Anil Kujur at his residence following a

quarrel, as a result of which, Marshal Kujur sustained grievous injuries on his person. Though

the injured was taken to Rangapara Hospital for treatment, but the doctors declared him

brought dead.

4. On receipt of the ejahar, a case was registered by the Officer-in-Charge, Rangapara

Police Station vide Rangapara PS Case No. 184/2011, under Sections 302/34 IPC and

investigation was initiated. During investigation, the Investigating Officer visited the place of

occurrence, recorded the statements of witnesses and seized one bamboo stick from the

house of the accused. Inquest was conducted on the dead body of the deceased and the

dead body of the deceased was forwarded to Kanaklata Civil Hospital for Post-Mortem

Examination.

5. During investigation, the accused persons were arrested and sent to jail. After

completion of investigation, charge sheet was submitted against the accused appellants Page No.# 4/19

under Sections 302/34 IPC, before the Court of learned SDJM, Sonitpur, Tezpur. As the

offence under Section 302 IPC is exclusively triable by the Court of Sessions, the case was

committed accordingly.

6. During trial, both the accused appellants remained in jail and charge was framed under

Sections 302/34 IPC, which was read over and explained to the appellants, to which they

pleaded not guilty and claimed to be tried.

7. To substantiate the case of the prosecution, 8 (eight) witnesses were examined. On the

other hand, the accused appellants did not adduce any evidence in support of their case.

After completion of trial, the statement of the accused appellants were recorded under

Section 313 CrPC and the incriminating evidence adduced by the witnesses were put before

them, to which they denied the same and pleaded their innocence. After hearing the

arguments of learned counsel for both the parties, the accused appellants were convicted as

aforesaid. Hence, both the accused appellants have preferred the appeals.

8. It was urged on behalf of the appellants that the two eye-witnesses, i.e. PW-5 and PW-

8, were declared hostile as they did not support the prosecution case. The other witnesses

examined by the prosecution were not present when the incident occurred. PW-5 and PW-8

were the star witneeses as they had seen the incident. However, as they had resiled from

their earlier statements, the conviction passed by the learned trial Court cannot be

sustainable in law.

9. It is also submitted on behalf of the appellants that as per the Medical Report, the

deceased sustained fatal injury on his head, and according to the Medical Officer, the cause of Page No.# 5/19

death was due to head injury, but it is not possible to cause one injury by two persons on the

head of the deceased. Hence, prosecution has failed to ascertain the fact as to who is the

perpetrator of the crime, causing death of the deceased.

10. Another contention raised during the arguments is that if this Court is not convinced on

the submissions of the learned Amicus Curiae, alternatively, their argument is that as it

appears from the evidence on record that prior to the incident a quarrel took place between

the deceased and the appellants, which transpires that there was no premeditation or

intention on the part of the appellants to commit murder of the deceased. Under such

backdrop, the conviction under Section 302 IPC be converted to Section 304 Part-II IPC. In

support of their submissions, learned Amicus Curiae have relied on the following case-laws:-

1) AIR 1968 SC 728; (Baul -vs, State of Utar Pradesh)

2) AIR 1993 SC 302 (Ramaotar vs. State of Madhya Pradesh)

3) 1994 AIR (SC) 34; (Joseph -vs- State of Kerala

3) (2000) 9 SCC 1; (Camilo Vaz vs- State of Goa)

11. Per contra, learned Additional Public Prosecutor has argued that it is true that both the

eye-witnesses were declared hostile as they did not support the prosecution case, but the

evidence of hostile witnesses cannot be discarded in toto and the relevant parts thereof

which are admissible in law can be used by the prosecution or the defence.

12. It is also the submission of learned Additional Public Prosecutor that two witnesses

were declared hostile, but the evidence of the Medical Officer and other witnesses as well as Page No.# 6/19

the facts and circumstances of the case have led the prosecution to come to the conclusion

that both the appellants are the perpetrators of the crime and they have been rightly

convicted by the trial Court. However, the learned Additional Public Prosecutor has fairly

submitted that as it appears from the evidence of the witnesses that prior to the incident, a

quarrel took place between the deceased and the accused appellants, under such scenario,

there is a scope to consider the prayer of conversion from Section 302 IPC to Section 304

Part- I or Section 304 Part-II IPC..

13. We have considered the submissions of learned counsel for the parties. We have also

perused the record, judgment of the learned trial Court and the evidence of witnesses.

14. To consider the submissions of learned counsel for the parties, we have to ponder over

the evidence of the witnesses.

15. PW-1 is the Medical Officer, Dr. Bijay Pal Das. He deposed in his evidence that on

15.08.2011, he was at Kanaklata Cvil Hospital, Tezpur. On that day he performed Post-

Mortem examination on the dead body of the deceased on police requisition and on

examination he found the following:-

"A male dead body with dark complexion lying in supine position. Eyes are open

and mouth closed. After removal of all cloth blood seen in forehead and occipital

region. Abrasion seen in left chest and in the abdomen. Abrasion also seen in right

hand arm and also right side of the neck of the back. Bruise are seen over the back.

There is no ligature mark seen around the neck.

There is a haemotoma in the occipital region with fracture in the occipital bone.

Page No.# 7/19

Also there is a fracture on cervical vertebrae starting from 2 nd to 5th number.

Haemorrhage seen in the membrane. Haemorrhage also seen in the brain and

spinal cord.

Other organs are healthy.

Injuries described above are ante-mortem in nature.

The doctor opined that the cause of death was due to head injury as a result of blunt

trauma over occipital region and that head injury is sufficient to cause the death of deceased

Marshal Kujur.

16. In his cross-examination, PW-1 replied that he did not mention in his Post-Mortem

Report that the hemorrhage seen in the membrane, brain and spinal cord, whether it was

internal or external. Abrasion and laceration as he has mentioned in his Post-Mortem Report

were not grievous. Fracture in cervical and occipital region were grievous in nature. PW-1 also

stated that such types of injures may be cured, if the patient gets better treatment.

17. PW-2 is informant, Monoj Baruah. From his deposition, it reveals that occurrence took

place on 14.08.2011 and on that day at about 09:30 pm, one pharmacist of their Tea Estate,

Muzamil Sikdar, informed him over phone that one man has been murdered. He informed

Police of Rangapara Police Station and went to the place of occurrence and also Police came

to the spot. When he reached the place of occurrence, he found that the dead body of

Marshal Kujur was brought from inside his house. On being asked, he came to know that

Marshal Kujur was killed by both the accused persons. Marshal was taken to Rangapara Page No.# 8/19

Hospital and the doctor declared him brought dead. Thereafter, he lodged the FIR vide

Exhibit-2.

18. In his cross-examination, PW-2 replied that he did not mention in the FIR that he came

to know about the incident from Muzamil. He did not know wherefrom the Police brought the

bamboo-stick, which was seized later on.

19. PW-3 and PW-4 are the neighbours of the deceased Marshal Kujur. From their

deposition, it reveals that the incident took place on 14.08.2011. They had seen lots of

people gathered in the house of Marshal Kujur. Since someone call them, they went to

Marshal Kujur's house and found Marshal lying dead on the bed. They did not know who

killed Marshall. Later on when Police seized a lathi, PW-3 put his signature, vide Exhibit- 4

(2).These witnesses were also declared hostile as they declined to support their statements

allegedly made against the accused persons before the Investigating Officer.

20. PW-5 is Anjali Kujur, who is the wife of the accused appellant Waris Kujur and mother

of another appellant, Anil Kujur and deceased Marshal Kujur. According to her, on 14 th

August, 2011, at about 09:00 pm, deceased Marshal Kujur came home after getting drunk. At

that time, she was at home, having her dinner. After having her meal, she came out and saw

that Marshall was lying dead. A big wooden post was found lying near his body. She did not

know how Marshal died. This witness was also declared hostile as the witness has

prevaricated from her statement made before the Investigating Officer.

21. PW-6 is the videographer, who was asked by the Investigating Officer to come to the

spot to do a videography of the murder case. Apparently, he did not know anything about the Page No.# 9/19

incident. However, he submitted a CD disc to the Investigating Officer, after doing the

videography of the subsequent event.

22. The wife of the deceased was examined in the case as PW-8, Smt Anjali Kujur. From

her deposition, it discloses that though she stated before the Investigating Officer and the

Magistrate that on the date of incident, in the evening while her husband Marshal Kujur was

taking his meal, her father-in-law Waris Kujur and brother-in-law made an altercation with her

husband. She and her mother-in-law were present nearby. The accused persons had attacked

her husband with lathi and a wooden piece causing injury on the head and chest of her

husband and ultimately, he died.

23. But this witness while deposing before the Court had resiled from her earlier statement

and stated that she was sleeping in her house and hearing hullah, she came out and found

her husband lying in the courtyard. He was in drunken state and he died in the courtyard.

She became senseless. She did not notice any injury on the body of her deceased husband.

She did not know as to how her husband died.

24. PW-7 is the Investigating Officer, Hrishikesh Dowerah. He deposed in his evidence that

on 15.08.2022, he was working as Sub-Inspector of Police at Rangapara Police Station. On

that day, the Officer-In-Charge received an ejahar from one Monoj Baruah, Welfare Officer of

Dhulapadung Tea Estate and entrusted him with the investigation. Accordingly, he went to

the place of occurrence, drew the sketch map, vide Exhibit-7 and found the accused persons

at their home. He brought them as well as the witnesses from the neighbourhood to the

Police Station for interrogation. He went to the house of the deceased, Marshall but he was

already taken to the hospital. He went to the hospital and came to know that the doctor Page No.# 10/19

declared him dead. The inquest on the dead body of the deceased was conducted and the

inquest report was prepared vide Exhibit -5. Thereafter, he sent the body of the deceased for

Post-Mortem Examination. He examined the witnesses and recorded their statements.

25. This witness also stated that when he again visited the place of occurrence, the

accused Waris Kujur stated that he had killed the deceased by assaulting him with a lathi and

showed him the said lathi and on being shown by the accused, he seized the said lathi, vide

Exhibit-3. He brought the deceased's wife Anjali Kujur to the Court for recording her

statement by the learned Magistrate under Section 164 CrPC. He arrested both the accused

appellants and forwarded them to the Court. Having found materials against the accused

persons, he submitted charge sheet against them for the offence under Section 302 IPC, vide

Exhibit-8.

26. Though PW-8, Anjali Kujur was declared hostile by declining her statement recorded by

the Investigating Officer, but she has admitted that her statement was recorded by the

Magistrate, vide Exhibit-7.

27. We have gone through the statement of PW-8 Anjali Kujur, recorded by the learned

Magistrate under Section 164 CrPC, wherein she had stated before the Magistrate that she

got married to Marshal prior to 6 (six) months of the incident. On 14.08.2011, at about 06:00

pm, while her husband was taking his meal in the courtyard, her father-in-law Waris Kujur

and brother-in-law Anil Kujur, started to quarrel with him regarding damaging of some

saplings by the cow. At that time, she and her mother-in-law were present. At that moment,

her father-in-law and brother-in-law attacked her husband with wooden post, causing

grievous injuries on his head and chest, as a result of which, he died on the spot. Blood was Page No.# 11/19

oozing out from his mouth, nose and chest. Later on, her neighbour Biru Karmakar informed

Police and Police came to the spot. Though her husband was taken to the hospital, but he

died.

28. The first question which comes for consideration is:- what is the evidentiary value of

the hostile witness and whether a person can be convicted on the evidence of the hostile

witness!

29. Now, the second question for consideration is with regard to the admissibility of the

evidence adduced by the hostile witnesses, in the case of Gura Singh Vrs. State of

Rajasthan, (2001) 2 SCC 205, the Hon'ble Apex Court has stated that-

"The terms "hostile", "adverse" or "unfavourable" witnesses are alien to

the Indian Evidence Act. The terms "hostile witness", "adverse witness", "unfavourable

witness", "unwilling witness" are all terms of English Law. The Apex Court observed

that it is a misconceived notion that merely because a witness is declared hostile his

entire evidence should be excluded or rendered unworthy of consideration. The

evidence remains admissible in the trial and there is no legal bar to base the

conviction upon the testimony of such witness."

30. The Hon'ble Apex Court has also considered the evidentiary value of hostile witness

in Bhagwan Singh v. State of Haryana , AIR 1976 SC 202, Rabinder Kumar Dey v.

State of Orissa, AIR 1977 SC 170 and held that the evidence of a witness, who was

declared hostile, is not wholly effaced from the record and that part of the evidence, which is

otherwise acceptable, can be acted upon. In Sayed Akbar v. State of Karnataka, AIR 1979 SC Page No.# 12/19

1848 the Hon'ble Apex Court held that the evidence of a prosecution witness cannot be

rejected in toto merely because the prosecution chose to treat him as hostile and cross-

examine him. The evidence of such witness cannot be treated as effaced and washed off the

record altogether but the same can be accepted to the extent their version is found to be

dependable on a careful scrutiny thereof. The same view has also taken in the case of Khujji

@ Surendra Tiwari v. State of M.P., AIR 1991 SC 1853.

31. In the case of Bhajju alias Karan Singh v. State of Madhya Pradesh , (2012) 4

SCC 327 the Hon'ble Apex Court held as follows:

"35. Now, we shall discuss the effect of hostile witnesses as well as the worth

of the defence put forward on behalf of the appellant-accused. Normally, when a

witness deposes contrary to the stand of the prosecution and his own statement

recorded under Section161 Cr.P.C., the prosecutor, with the permission of the court,

can pray to the court for declaring that witness hostile and for granting leave to cross-

examine the said witness. If such a permission is granted by the court then the

witness is subjected to cross-examination by the prosecutor as well as an opportunity

is provided to the defence to cross- examine such witnesses, if he so desires. In

words, there is a limited examination-in-chief, cross- examination by the prosecutor

and cross-examination by the counsel for the accused. It is admissible to use the

examination-in-chief as well as the cross- examination of the said witness insofar as it

supports the case of the prosecution.

36. It is settled law that the evidence of hostile witnesses can also be relied

upon by the prosecution to the extent to which it supports the prosecution version of Page No.# 13/19

the incident. The evidence of such witnesses cannot be treated as washed off the

records, it remains admissible in trial and there is no legal bar to base the conviction

of the accused upon such testimony, if corroborated by other reliable evidence. Section

154 of the Evidence Act enables the court, in its discretion, to permit the person, who

calls a witness, to put any question to him which might be put in cross-examination by

the adverse party.

37. The view that the evidence of the witness who has been called and cross-

examined by the party with the leave of the court, cannot be believed or disbelieved in

part and has to be excluded altogether, is not the correct exposition of law. The courts

may rely upon so much of the testimony which supports the case of the prosecution

and is corroborated by other evidence. It is also now a settled canon of criminal

jurisprudence that the part which has been allowed to be cross-examined can also be

relied upon by the prosecution. These principles have been encompassed in the

judgment of the apex Court in the following cases: (a) Koli Lakhmanbhai Chanabhai v.

State of Gujurat, (b) Prithi v. State of Haryana, (c) Manu Sharma v. State (NCT of

Delhi) and (d) Ramkrushna v. State of Maharashtra."

32. In State of U.P. v. Ramesh Prasad Misra; (1996) 10 SCC 360, the Hon'ble Apex

Court held that evidence of a hostile witness would not be totally rejected if spoken in favour

of the prosecution or the accused but required to be subjected to close scrutiny and that

portion of the evidence which is consistent with the case of the prosecution or defence can

be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v.

State of Maharashtra; (2002) 7 SCC 543, Gagan Kanojia v. State of Punjab; (2006) Page No.# 14/19

13 SCC 516, Radha Mohan Singh v. State of U.P. ' (2006) 2 SCC 450, Sarvesh

Narain Shukla v. Daroga Singh; (2007) 13 SCC 360 and Subbu Singh v. State of

Delhi; (2009) 6 SCC 462.

33. Thus, the law can be summarised to the effect that the evidence of a hostile witness

cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can

be used by the prosecution or the defence.

34. In the instant case, the two material witnesses, PW-5, mother of the deceased, and

PW-8, wife of the deceased turned hostile. Their evidence have been taken into consideration

by the trial Court strictly in accordance with law. Some omissions, improvements in the

evidence of witnesses have been pointed out by the learned counsel for the appellants, but

we find them to be very trivial in nature. It is pertinent to mention here that though PW-8 has

been declared hostile, but she has admitted in her evidence that her statement was recorded

by the Magistrate, vide Exhibit-7, which transpires that whatever she has stated before the

Magistrate, can be taken into consideration relating to the offence committed by the accused

appellant.

35. It is settled proposition of law that even if there are some omissions, contradictions and

discrepancies, the entire evidence cannot be disregarded. After exercising care and caution

and sifting through the evidence to separate truth from untruth, exaggeration and

improvements, this court comes to a conclusion as to whether the residuary evidence is

sufficient to convict the accused. Thus, an undue importance should not be attached to

omissions, contradictions and discrepancies which do not go to the root of the matter and

shake the basic version of the prosecution's witness. As the mental abilities of a human being Page No.# 15/19

cannot be expected to be attuned to absorb all the details of the incident, minor

discrepancies are bound to occur in the statements of witnesses.

36. Hon'ble Supreme Court in the case of Vinod Kumar v. State of Punjab ; (2015) 3

SCC 220 had already dealt with a situation where a witness after rendering testimony in line

with the prosecution's version, completely abandoned it, in view of the long adjournments

given permitting an act of manoeuvering. While taking note of such situations occurring with

regularity, it expressed its anguish and observed that:-

"It is necessary, though painful, to note that PW 7 was examined-in- chief on

30-9-1999 and was cross-examined on 25-5- 2001, almost after 1 year and 8 months.

The delay in said cross-examination, as we have stated earlier had given enough time

for prevarication due to many a reason. A fair trial is to be fair both to the defence and

the prosecution as well as to the victim. An offence registered under the Prevention of

Corruption Act is to be tried with all seriousness. We fail to appreciate how the learned

trial Judge could exhibit such laxity in granting so much time for cross-examination in

a case of this nature. It would have been absolutely appropriate on the part of the

learned trial Judge to finish the cross-examination on the day the said witness was

examined. As is evident, for no reason whatsoever it was deferred and the cross-

examination took place after 20 months. The witness had all the time in the world to

be gained over. We have already opined that he was declared hostile and re-

examined."

37. In the case in hand, charge was framed under Section 302/34 IPC. From the medical

report of the deceased, it appears that he sustained multiple injuries on his person. Abrasion Page No.# 16/19

on his left chest and abdomen Abrasion was also seen on the right arm and also to right side

of the neck of the back. Bruises are also seen over the back. There is a haematoma in

occipital region with fracture in the occipital bone. From the PM Report, it reveals that the

cause of death was due to head injury, which was fatal. However, the deceased sustained

some other injuries on his person, i.e., abrasion and laceration which transpires that he was

attacked and assaulted by more than one person.

38. Coming to the point of conversion of offence from Section 302 IPC to Section 304 Part-I

or Section 304 Part-II IPC. According to the learned counsel for the appellants, prior to the

incident an altercation occurred between the deceased and the appellants and at that time,

he was drunk. As such, the offence under Section 302 IPC is not attracted in this case.

However, they have committed the offence under Section 304 Part-II IPC.

39. In the case of Arjun Vs. State of Maharasthra; reported in 2012 Cr.L.R. (SC) 506,

the Hon'ble Supreme Court held as folows:

"17. Considering the background facts as well as the fact that there was no

premeditation and the act was committed in a heat of passion and that the appellant

had not taken any undue advantage or acted in a cruel manner and that there was a

fight between the parties, we are of the view that this case falls under the fourth

exception to Section 300 IPC and hence it is just and proper to alter the conviction

from Section 302 IPC to Section 304 Part-I IPC and we do so."

40. The Hon‟ble Supreme Court in the case of Dilip Kumar Mondal & Anr. Vs. State of

West Bengal, reported in 2015 (2) SCC (Cri.) 318 held as follows: -

Page No.# 17/19

"24. In order to invoke Exception 4 to Section 300 Indian Penal Code, it must be

further shown that the offender has not taken undue advantage or acted in a cruel or

unusual manner. The Appellants are said to have inflicted injuries with henso and dau.

By a perusal of Ext. P6 post-mortem certificate, it is seen that the deceased sustained

one incised injury on the back which has caused injury to scapula and spinal cord and

another incised wound over the back just below the right scapula causing injury to the

right lung and pleura. Insofar as the injuries caused to Ranjit Debnath and Santosh

Debnath, there is no sufficient evidence as to the alleged injuries caused to them. As

far as PW-10- Nikhil Debnath is concerned, he was discharged from the hospital after

giving first aid treatment indicating thereby that the injury was not grievous.

Considering the injuries, in our view, it cannot be said that the accused have taken

undue advantage of the situation. The incident was not premeditated and the scuffle

between the parties led to the causing of injuries to the deceased Nripen Debnath and

considering the circumstances of the case, in our view, the offence would fall

Under Section 300 Indian Penal Code Exception 4 and the conviction of the Appellants

is to be modified and altered Under Section 304 Part I IPC."

41. In the case of Arjun & Anr. Vs. State of Chhattishgarh; (2017) 3 SCC 247, the

Hon'ble Supreme Court held as follows:

"22. The accused, as per the version of PW-6 and eye witness account of other

witnesses, had weapons in their hands, but the sequence of events that have been

narrated by the witnesses only show that the weapons were used during altercation in

a sudden fight and there was no pre- meditation. Injuries as reflected in the post-

Page No.# 18/19

mortem report also suggest that appellants have not taken undue advantage or acted

in a cruel manner. Therefore, in the fact situation, Exception (4) under Section 300 IPC

is attracted. The incident took place in a sudden fight as such the appellants are

entitled to the benefit under Section 300 exception (4) IPC."

42. When and if there is intent and knowledge, then the same would be a case of Section

304 Part I IPC and if it is only a case of knowledge and not the intention to cause murder and

bodily injury, then the same would be a case of Section 304 Part II IPC. In the instant case,

injuries/incised wound caused on the head of the deceased i.e. the occipital region, which is a

vital part of the body and the injuries indicate that the appellants had intention and

knowledge to cause the injuries and thus it would be a case falling under Section 304 Part I

IPC. The conviction of the appellants under Section 302 read with Section 34 IPC is modified

under Section 304 Part I IPC.

43. According to the learned counsel for the appellants, the appellants have served more

than 11 years in jail hazot. We have gone through the LCR, which reveals that the case was

committed to the Court of Sessions on 05.11.2011. Hence, it transpires that the appellants

are in jail hazot for more than 11 years. Taking into account the facts and circumstances in

which the offence has been committed, for the modified conviction under Section 304 Part I

IPC, the sentence is modified to that of the period already undergone.

44. In the result, conviction of the appellant under Section 302 IPC, read with Section 34

IPC is modified as conviction under Section 304 Part- I IPC and the sentence is reduced to

the period already undergone.

Page No.# 19/19

45. Both the appeals are partly allowed. The conviction under Section 302 IPC is set aside.

The accused appellants be released forthwith, if not wanted in any other case.

46. The Criminal Appeals accordingly, stand disposed of.

47. Before parting with the record, this Court extends the appreciation to the services

rendered by Ms D Saikia, learned Amicus Curiae in Criminal Appeal 50 (J) of 2019 and Ms R D

Mozumdar, learned Amicus Curiae in Criminal Appeal No. 51 (J) of 2019, and recommend that

the Registry may make arrangement for payment of necessary remuneration to both the

learned Amicus Curiae as per the existing norms.

48. Send down the LCR.

                                                      JUDGE                       JUDGE



Comparing Assistant