BISHU NATH Vs. STATE OF ASSAM

JUDGEMENT

(1.) The Appellant was convicted Under Section 324, IPC and sentenced to undergo R.I. for 2 years and to pay a fine of Rs. 500 and in default of payment of fine to undergo R.I. for another 3 months by judgment and order dated 16.9.2003 rendered by the learned Addl. Sessions Judge, Cachar, Silchar in Sessions Case No. 21/2003. The prosecution story in brief is that, on 7.5.03 at about 9 a.m. at Bhubandar the deceased Mihir Das was working along with 3/4 other persons on the E&D embankment and at that time one Sri Badan Nath (delinquent juvenile) went to tether a cow there which was protested by the deceased, Mihir Das. At that time the accused/Appellant, Bishu Nath,-armed with dao, came to the place of occurrence and started assaulting the deceased with a lathi. When the informant Jayanta Das came to the place of occurrence and tried to save the deceased, Mihir Das, the accused Appellant assaulted him with a dao causing injury on his left hand, whereupon the informant raised alarm and the witnesses arrived at the place of occurrence and saw the occurrence, who helped him in shifting the deceased to hospital at Dholai. But the deceased, Mihir Das succumbed to his injuries in the said hospital on the same day. The I.O. visited the place of occurrence and seized the following:

(2.) The dead body of the deceased was sent to Silchar Medical College and Hospital for post-mortem examination. After completion of the investigation, the I.O. submitted charge sheet against the accused Appellant Under Sections 302/324/34, IPC. The name of the accused Badan Nath was not included in the charge sheet as he was declared as delinquent juvenile. The case being committed by the Chief Judicial Magistrate, Cachar, Silchar, the learned Addl. Sessions Judge, Cachar, Silchar on perusal of the records and materials framed charge Under Sections 302/324/34, IPC against the accused Appellant to which he pleaded not guilty and claimed to stand trial. The prosecution examined in all 10 witnesses including the informant and the medical officer. The defence examined none. The learned trial court convicted and sentenced the accused Appellant as stated earlier.

(3.) It may be noted that the investigation was undertaken on the basis of the FIR Ext. 5, filed by one Jayanta Das, younger brother of the deceased. In the aforesaid FIR, he created an impression that he was present at the time of occurrence and he saw with his own eyes that his elder brother, Mihir Das was assaulted by the accused Appellant by a dao. When he was being assaulted the informant rushed to the place of occurrence to save his brother but he was also assaulted by dao. There were 3/4 persons who helped Mihir Das. According to the informant, PW-3, the said incident took place at the E&D embankment. This PW3 deposed before the learned trial court that the alleged incident took place in front of his house while he was taking the cattle near the PWD road. Arriving at the place of occurrence, he enquired from the accused Appellant what has happened. The accused Appellant did not respond at first, but when the informant enquired again, the accused Appellant gave him a blow with some weapon. He did not mention about the use of dao by the accused. He also did not mention what type of weapon the accused used in assaulting the deceased. In cross examination he clearly stated that the occurrence took place at a vacant place meant for grazing. But he did not say that the alleged occurrence took place on the E&D embankment. He also made a statement that people came only after the occurrence and the deceased was brought by PW-4 and PW-5 from a place covered by water.