The central legal point established in the judgment is the evaluation of the nature of the assault, the intention of the accused, and the appropriate application of IPC Section 302/34 in determining the conviction and sentence.

JUDGMENT :

Mir Alfaz Ali, J.

This appeal is directed against the judgment and order passed by learned Sessions Judge No. 2(FTC), Tinsukia in Sessions Case No.130(T)/2012. By the said judgment, learned Sessions Judge convicted the appellants under Sections 302/34 IPC and sentenced them to rigorous imprisonment for life and fine of Rs. 5,000/- (Rupees five thousand only) each with default stipulation.

2. As per prosecution case, Smti. Dipali Mallah, wife of Jugesh Mallah was missing since 4 pm of 05-12-2011. Suspecting involvement of the deceased husband of the informant in the disappearance of Dipali Malla, appellant Jugesh Mallah along with his co-villagers Bhagat Sahani, Sukhi Shah, Kutu Das, Amal Das, Prafulla Das, Raju Das and 6/7 others being armed with dao, stick etc. came to the house of the informant at about 10 pm and took the husband of the informant to a field near the house of one Bhagatji and mounted assault on him. After inflicting multiple injuries, the accused persons left the victim in his house at about 2 am. They also threatened the informant with dire consequences, if she informs the police. At about 5 am in the morning on 06-12-2011, the husband of the informant died and an FIR (Ext.-7) was lodged by PW-2, wife of the victim. On the basis of the said FIR, police registered Tinsukia PS Case No. 752/2011 under Sections 302/34 IPC, prepared the inquest report and subjected the body to post mortem examination.

3. PW-1, Dr. Jayanta Bhattacharjee, who conducted the post mortem examination on the body of the victim found the following injuries :

“(i) Lacerated injury on right leg 3 cm x 105 cm x 1 cm at lateral aspect, age 12-18 hours.

(ii) Abrasion mark on left knee in joint 1 cm x 0.5 cm, age 12-18 hours.

(iii) Penetrating injury at outer aspect of right fore arm with sharp margins 2 cm x 1 cm x 2cm deep, age 12-18 hours.

(iv) lacerated injury at fore arm below injury no. (iii) 2 cm x 1 cm x 0.5 cm, age 12-18 hours.

(v) Lacerated injury at occipital region of scalp 2 cm x 0.5 cm x 0.5 cm, age 12-18 hours.

(vi) Multiple abrasions at back ranging from 2 cm to 5 cm in length and 1 cm breadth, age 12-18 hours.”

In the opinion of the doctor the cause of death was haemorrhage from vital organs (left lung, spleen) leading to shock, coma and death. The injuries were ante-mortem and homicidal in nature. Death was within 12-18 hours before the post mortem examination.

4. On conclusion of investigation, charge-sheet was laid against eleven accused persons including the present appellants. Two of the charge-sheeted accused persons absconded and eventually nine accused persons including the present appellants stood trial for the offence u/s 302/34 IPC.

5. During trial, learned Sessions Judge framed charge u/s 302/34 IPC against the nine accused persons including the present appellants, to which all of them pleaded not guilty. In course of trial, the accused Sanjib Dey expired and eventually altogether eight accused persons including the present appellants, stood trial.

6. Prosecution examined 11 (eleven) witnesses to bring home the charge against the accused/appellants and on appreciation of evidence, learned Sessions Judge convicted the present appellants u/s 302 IPC and awarded sentence as has been indicated above.

7. We have heard Mr. P.J. Saikia assisted by Mr. A.K. Gupta, learned counsel for the appellants, Ms.S. Jahan, learned Addl. Public Prosecutor for the respondent No. 1 and Ms. R.S. Deuri, learned counsel appearing for the informant/respondent No.2 and also scrutinized the evidence brought on record.

8. The informant, Sarika Sahani was examined as PW-2. She deposed that at about 10 pm at night, accused Jugesh Malla came to her house and enquired about her husband. She (PW-2) told that her husband was sleeping and thereafter she woke up her husband. The accused Jugesh Mallah told her husband that Bhagat Sahani has called him and accordingly the victim accompanied the accused Jugesh Mallah. She further stated that,