HARENDRA CHANDRA NATH Vs. STATE OF ASSAM

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 25.6.1983 passed by the learned Sessions Judge, Goalpara, Dhubri whereby the appellants were convicted under Section 304 Pt-Il I.P.C. and sentenced to 3 yearsT R.I.

(2.) The prosecution case was that on 14.1.1981 at about 3 P.M. armed with dao, lathi, Jong, Khapor etc. the appellants along with others had formed an unlawful assembly and had entered the house of the informant and severly assaulted him. Some girls and ladies present there to offer prayer were also assaulted. Khirendra Chandra Nath hereinafter referred as Khiren protested but was badly assaulted. Khiren was removed to Goalpara Civil Hospital where he subsequently died. Meanwhile, F.I.R. was lodged and the police commenced investigation. After completion of investigation, charge-sheet under Sections 148/448/323/302 I.P.C. against the appellants and others was filed. The learned Sessions Judge framed charges under Sections 147 and 302/149 I.P.C. against the accused. The accused pleaded not guilty. The learned Sessions Judge on consideration of the evidence produced held that though the accused appellants had the right of private defence, but after Haren had given the first blow on the head of Khiren who fell on the ground, appellants had continued to assault Khiren, and it was held that once Khiren fell down on the ground, the accused persons should have ceased giving any further blows, and that accused Haren, Niren, Hiren and Lalit exceeded their right of private defence. The learned Sessions Judge in view of the above conclusion convicted the accused appellants under Section 304 Pt-Il I.P.C. and sentenced them to 3 years R.I. The appellants were acquitted on other charge. The other accused were acquitted of all the charges.

(3.) Aggrieved, Haren, Niren, Hiren and Lalit have come in appeal and Shri T.C. Mazumdar, learned counsel appearing on their behalf has submitted that the finding of the trial court that the accused appellants had exceeded their right of private defence was not justified in view of only one injury on the persons of Khiren and the finding that even after Khiren fell down on the ground he had been assaulted cannot be sustained. Shri G. Gopal, learned Public Prosecutor has supported the judgment and order of the learned trial court.