BIRSHA TOPNO Vs. STATE OF ASSAM

JUDGEMENT

(1.) Heard Ms. K. Phukan, learned Amicus Curiae, appearing for the appellant and Mr. K.A. Mazumdar, learned Addl. Public Prosecutor, Assam, appearing for the State respondent. This appeal is directed against the impugned judgment and order, dated 24.08.2011, passed by the learned Sessions Judge, Dibrugarh in Sessions Case No. 1742008 (G.R. Case No. 1380/2008), whereby the learned Sessions Judge convicted the appellant under Section 302 of the Indian Penal Code (for short IPC) and sentenced him to suffer imprisonment for life and pay fine of Rs. 2,000/ - (Rupees two thousand), in default suffer rigorous imprisonment for another period of 6 (six) months. It has also been ordered that the convicted person shall be entitled to set off, under Section 428 of the Code of Criminal Procedure (for short Cr.P.C.).

(2.) The prosecution case, in brief, is that on 01.08.2008 at about 9.30 p.m. while the appellant, his wife (hereinafter called the deceased) and the appellant's brother were taking liquor, in the house of the appellant, a quarrel took place between the said persons and Mr. Faglu Topno @ Paglu (since deceased), who was the brother of the appellant, gave blows on the head of the deceased with a split firewood and the appellant also gave a blow, on the head of the deceased, with a bottle. On being so assaulted the deceased succumbed to the said injuries. Shri Abdan Horo (PW 1), coming to know about the occurrence, lodged an FIR (Ext. 1) with the police. Accordingly, police registered a case, being Nahorkotia P.S. Case No. 76/2008, under Sections 302/34 IPC and visited the place of occurrence. During investigation, police took the appellant and his said brother i.e. Faglue Topno @ Paglue into the custody, prepared the inquest report in respect of the dead body of the deceased, forwarded the dead body to hospital for post -mortem examination, seized a bottle and a piece of split firewood vide Ext. No. 3 i.e. seizure list.

(3.) At the close of investigation, police submitted charge sheet, under Sections 302/ 34 IPC, against the accused persons. The offence, being exclusively triable by the court of Sessions, the learned Judicial Magistrate, Ist Class, Dibrugarh committed the case to the court of Sessions. The learned Sessions Judge Dibrugarh, framed charge under Section 302 IPC and the charge was read over and explained to which the accused persons pleaded not guilty. They claimed to be tried.