SAHAR ALI Vs. STATE OF ASSAM

JUDGEMENT

(1.) HEARD Mr. P. Sarma, learned counsel for the appellant and Mr. B. Gogoi, learned Additional Public Prosecutor, for the Respondent State.

(2.) THIS appeal has been filed against the judgment and order dated 6. 9. 2001 passed by the learned Adhoc Additional Sessions Judge, Darrang in Sessions Case No. 24 (DMFT)/2001, convicting and sentencing the appellant for RI for 7 (seven) years with a fine of Rs. 3,000/- in default further RI for 1 (one) year under Section 304 Part II, IPC.

(3.) BRIEFLY stated, the prosecution case runs like this : the accused appellant after the death of his first wife married second wife Firuza Begum, CW-1 to look after his children. He had two sons namely Maidul Islam (PW 1) and Sayedur Rahman. Two sons always used to quarrel with their step mother. On 14. 11. 1993, one of his sons, Sayedur Rahman quarreled with his step mother abusing her in foul language and she was crying. When the accused appellant enquired Sayedur, he rushed to him with a dao in his hand to cut him. The accused appellant in order to save himself hit with a lathi at the dao. The dao flung away but the strike fell on the head of Sayedur causing serious injury. He was removed to Mangaldoi Civil Hospital but the said Hospital referred him to Guwahati Medical College Hospital, where he died on 15. 11. 1993 at 5. 45 p. m. The post-mortem examination was done on 16. 11. 1993 at 1. 45 p. m. and the FIR was lodged on 16. 11. 1993 at 6. 30 p. m. The police registered a case being Mangaldoi P. S. Case No. 170/1993 under Section 302, IPC. The Investigating Officer visited the place of occurrence and took statement of some witnesses under Section 161, Cr PC but he could not recover the dao used by the deceased son, Sayedur and the lathi used by the accused himself. A first class Judicial Magistrate with the Order of the CJM, recorded the statement of the same witnesses under Section 164, Cr. PC. After completion of investigation charge sheet was laid and the case was committed to the Court of Sessions, Mangaldoi for trial. A charge under Section 302, IPC was framed against the accused. On explaining the charges the accused/appellant denied the charges and took the plea of right of private defence.