ASRAF ALI Vs. STATE OF ASSAM

JUDGEMENT

(1.) In this appeal challenge is to the judgment of a learned Single Judge of the Guwahati High Court partially allowing the appeal filed by the appellant. Learned District and Sessions Judge, Kamrup in Sessions Case No. 15/K-G/88 convicted the appellant for offence punishable under Section 304 Part I of the Indian Penal Code, 1860 (in short the IPC) and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 200/- with de fault stipulation.

(2.) By the impugned judgment, learned Single Judge altered the conviction to Section 304 Part II IPC and sentenced the appellant to undergo RI for 5 years.

(3.) Background facts in a nutshell are as follows : On 14-9-1986 at about 8.00 p.m. an FIR was lodged by one Abbash Ali (PW-1) before the Officer-in-Charge, Bharalumukh Police Station mentioning therein that about 9.30 a.m. on that day the accused Asraf Ali assaulted Khairul Hoque, son of Nazim Ali with a piece of wood as a result of which said Khairul Hoque (hereinafter referred to as the deceased) sustained injuries on his head. The injured was re moved to the Gauhati Medical College Hospital where he succumbed to injuries at about 5.30 p.m. Police registered a case and after completion of the investigation submitted charge sheet under Section 302 IPC. On committal, learned trial Court framed charges under Section 302 IPC. During the trial prosecution examined 10 witnesses including the doctor and the Investigation Officer. Accused also examined 3 witnesses to substantiate its plea of innocence. P.W.1 is the informant who reported about the incident and attended Gauhati Medical College Hospital. He was present during the inquest. PW-2 Md. Nurul Islam deposed that he was not in Gauhati and when he was contacted by police he informed the police that he knew both accused and deceased. Police took his help to identify the accused but accused could not be found. On the day of occurrence, PW-3 Mustt. Nurjahan Begum, was informed by Mozaraf that her husband was assaulted by Asraf and the victim had been admitted in the Gauhati Medical College Hospital. She saw the dead body on the next day when it was brought to her place. According to this witness some clash had been going on between her husband and accused. PW-4 in his deposition only mentioned about some quarrel which took place between the deceased and accuseds family, but he did not specifically indicate when such occurrence took place. PW-5 Md. Talmizur Rehman was examined by the prosecution as eye witness and in his deposition he stated that occurrence took place one morning in 1986. According to this witness, one day he found one Sarma had engaged two labourers for repairing the walls of Khairuls house. Accused Asraf Ali forbade from Sarma working there. He heard their words only from outside. He advanced to Khairuls house and on going there he found Khairul in his house and accused was standing at doorstep with a stick in his hand. He did not see Khairul as to what he had been doing inside the house. About that time he saw Khairul coming out of the house and then moving towards the road. Asraf ran after Khairul taking a lathi in his hand. Moving towards the road he found Khairul lying on the road. Asraf was standing at his doorstep holding the lathi some five or six metres away from the spot where Khairul was lying. Approaching Khairul he saw the injury on the head and bleeding from the injury. He went to call a rickshaw to carry Khairul to hospital and in the meantime Mazafar Hussain (PW-8) had taken the injured to Kumarpara Nursing Home by another rickshaw. He and Maniruddhin went to the Nursing Home and doctor of the Nursing Home advised them to take the injured to the Medical College Hospital and accordingly he and Maniruddin took the injured to the Gauhati Medical College Hospital. PW-6 is a school teacher who spoke about the seizure of wooden stick from accused Asrafs house. Ext.4 is the seizure list, Ext. 4(1) is his signature. The stick was 2/21/2 feet long. PW-7 is doctor. S.I. Barbhuyan who conducted the au topsy found the following injuries on the deceased :