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2010 Supreme(Gau) 569
IN THE HIGH COURT OF GAUHATI (AGARTALA BENCH)
Utpalendu Bikas Saha, J.
Sankar Deb - Appellants
Vs.
State of Tripura - Respondent
Criminal Appeal No. 30 of 2009
Decided on : 12.08.2010
For Appellant/Petitioner/Plaintiff: S. Lodh, Adv.
For Respondents/Defendant: A. Ghosh, Adv.
Headnote:
Indian Penal Code, 1860 - Section 304 (Part-I) - Penalty - Simple imprisonment - Appellant on being convicted and having been sentenced to suffer R.I. for ten years and to pay a fine in default to suffer S.I. for two years by the learned Additional Sessions Judge, Court No. 3 vide his judgment has preferred this appeal - Held, In the instant case, the accused-Appellant is a rustic villager and at the time of alleged incident he was working as an agricultural labour and he had no intention to kill the deceased, but hit of the moment he committed the offence - It also appears from record that at the time of committing the alleged offence, the accused-Appellant was 23 years of age and he was not in a position to engage a lawyer to defend his case and not only that he has already suffered the maximum period of sentence awarded by the learned trial court - Considering all the aforesaid facts, this Court is of the considered opinion that the sentence awarded by the learned trial court to the accused-Appellant is also to be modified as this Court has already held that the accused-Appellant has committed an offence - Appeal allowed.
Key Points: - (!) Court notes the medical opinions: initial assessment suggested possible internal hemorrhage; later autopsy indicated grievous head injury and homicidal cause; conflicting medical evidence discussed. - (!) Forensic opinion: death due to hemorrhage and shock from grievous head injury, homicidal in nature, anti-mortem. - (!) Court modifies conviction from 304(Part-I) to 304(Part-II) based on evidence showing knowledge of likely death but no intent to kill. - (!) Sentence modified to the period already undergone; appellant set at liberty on this basis. - (!) - (!) , (!) Trial court findings on witness credibility and identification; appeal focused on proper application of Section 304 Parts I vs II and sentencing considerations. - (!) - (!) Precedent discussion of Karim Khan v. State of Rajasthan regarding 304 Part-II conviction and alternatives under 323 IPC. - (!) - (!) Appellate reasoning balancing age, poverty, lack of legal representation, and substantial time served in reducing sentence. - (!) - (!) Final order: appeal partly allowed; sentence modified to period already undergone; appellant set at liberty if not wanted in other cases.
What is the appropriate- law interpretation of Section 304(Part-I) versus Section 304(Part-II), IPC in the context of alleged accidental or knowledge-based bodily injury leading to death?
How to determine the proper sentence where the appellant had no prior legal representation, is a young agricultural laborer, and has already served a substantial portion of the sentence?
What is the court's stance on whether the evidence supports conviction under 304 Part-II (and not Part-I) and the resulting impact on sentencing and appeal outcomes?
U.B. Saha, J.
1. The Appellant on being convicted under Section 304 (Part-I) of the Indian Penal Code ('IPC') and having been sentenced to suffer R.I. for ten years and to pay a fine of Rs. 7,000, in default to suffer S.I. for two years by the learned Additional Sessions Judge, West Tripura, Agartala, Court No. 3 vide his judgment dated 7.1.2004 in S.T. 149(WT/K) of 1995 has preferred this appeal.
2. Heard Mr. S. Lodh, learned Counsel for the Appellant and Mr. A. Ghosh, learned Addl. Public Prosecutor appearing for the Respondent State.
3. The prosecution case, in short, is as follows: -
The accused-Appellant was working as an agricultural labour in the house of one Karuna Deb (PW5) of Samatal Padmabil, Khowai. While the accused-Appellant was working as such he had a quarrel with one Shantu Deb (PW13), a neighbour of PW5 on the issue of cattle head and on that issue the accused-Appellant had beaten PW13, Shantu for which the mother of PW13 Smt. Sabita Deb (PW1) and elder brother Shri Pradip Deb (PW12) reported the matter to the village I radhan Shri Anjan Deb (PW2) and sought justice. After few days of quarrel on 24.12.1994 at about 8/8.30 p.m. PW2 went to the house of PW5 in whose house the accused-Appellant was working to enquire about the quarrel and the assault and at that time the accused-Appellant picked up quarrel with PW2, village Pradhan and on hearing the quarrel deceased Goutam Deb along with his cousin brother (PW12) went to the house of PW5 and they had some altercation with the accused-Appellant and at that time PW2 advised the deceased Goutam and PW12 Pradip to go to their house and accordingly, when they were on the way to their house, the accused-Appellant suddenly picked up a bamboo stick and struck a severe blow on the head of deceased Goutam Deb in the courtyard of PW5, as a result Goutam fell in the courtyard of PW5 and became unconscious. Thereafter, Goutam was shifted to Khowai Hospital and from there he was referred to G.B. Hospital, Agartala and after admission in G.B. Hospital he succumbed to the injury on the following morning. Narrating the aforesaid fact the mother of the deceased Smt. Sabita Deb (PW1) lodged the FIR with S.I. Debashish Banerjee (PW22) at Khowai Hospital and on the basis of the said information a police case was registered being Khowai P.S. Case No. 96/94 under Section 325, IPC and PW22 took up the investigation. While the investigation was set on motion the deceased Goutam succumbed to the injuries and as such Section 302, IPC was added.
4. In course of investigation the accused-Appellant was arrested and produced before the learned SDJM, Khowai (PW19) on 29.12.1994 with a prayer for recording his confessional statement under Section 164 of the Code of Criminal Procedure (' Code of Criminal Procedure ') and on the basis of said prayer learned SDJM, Shri B.B. Bhattacharjee (PW19), the then following the prescribed procedure recorded the confessional statement of the accused-Appellant on 31.12.1994. In course of investigation the investigating authority examined the witnesses and also recovered the weapon of offence at the instance of the accused-Appellant, i.e., the bamboo stick. On completion of investigation, PW22 submitted the charge sheet against the accused-Appellant for committing the offence of murder of deceased Goutam punishable under Section 302, IPC.
5. As the offence of murder is session triable the case was committed by the learned SDJM, Khowai to the Court of Sessions, i.e., learned Sessions Judge, West Tripura, Agartala and the learned Sessions Judge upon receipt of the case record heard the learned Counsel for the parties on 11.12.1995 and framed charge against the accused-Appellant which reads as follows: -
That you, on 24.12.1994 at about 20.30 hours at Samatal Padmabil under Khowai Police Station, assaulted Goutam Deb by lathi consequence of which he died at G.B. Hospital on 25.12.1994 at 05.30 hours and thereby committed an offence punishable under Section 302
