RAFIQUE HUSSAIN Vs. STATE OF ASSAM

JUDGEMENT

(1.) Heard Mr. Ratul Goswami, learned amicus curiae for the appellant-accused and Mr. Dhanesh Das, learned Additional, P.P.for the State of Assam.

(2.) This is an appeal from Jail by the appellant who was convicted under section. 304, Part-II of Penal Code and sentenced to undergo R.I. for 5(five) years and to pay a fine of Rs. 1,000 in default, R.I. for another 2(two) months by Judgment & Order dated 9.8.2005 passed by the learned Additional Sessions Judge (ad hoc), Tinsukia, in Sessions Case No. 72(T)/2004.

(3.) The prosecution story, in brief, is that on 08.10.2000, one Md. Surab Hussain lodged a First Information Report (FIR) with the Bordubi Police Station alleging that in the afternoon of that day, at about 2 pm, a quarrel took-place between his 2 nephews Md. Rafique Hussain and Tamizul Hussain, in their house itself over some matters and Rafique Hussain caused the death of his elder brother Tamizul Hussain by assaulting him with a bamboo lathi and the dead body was lying in the house. On the basis of the said First Information Report (FIR), a case being Bordubi Police Station Case No. 85/2000 was registered under section 302 of Penal Code. The investigation was entrusted to ASI Ashutosh Nath who visited the place of occurrence, examined the witnesses and recorded their statements. The said Officer prepared a sketch map and also prepared an inquest report and found injuries on the back of the head of the deceased person. The dead body was then sent for post mortem examination. After completion of the investigation, a charge sheet was submitted against the appellant under section 302 of Penal Code. The offence being exclusively triable by the Court of Sessions, the same was committed by the Judicial Magistrate, 1st Class, Tinsukia, by order dated 24.4.2004, to the Court of Sessions at Tinsukia. On charges being explained, the appellant pleaded not guilty and claimed to stand trial. The prosecution examined as many as 8(eight) witnesses while the defence examined only one witness. On consideration of the evidence on record and after hearing the learned counsel for the parties, the learned Additional Sessions Judge (Ad hoc), Tinsukia, passed the impugned Judgment convicting and sentencing the appellant as stated above.