ATUL GANDHIA Vs. STATE OF ASSAM

JUDGEMENT

(1.) This appeal is directed against the judgement and order passed by the Additional Sessions Judge, Sibsagar, Jorhat in Sessions Case No. 121 (S-G) of 1978 convicting the appellants under Sections 304 (Part 11) read with Section 34 of the Indian Penal Code. The appellant No. 1 was sentenced rigorous imprisonment for three years and a fine of Rs. 500/-. The appellant No. 2 was released on probation of good conduct in exercise of powers under Section 360 of the Code of Criminal Procedure.

(2.) The facts of the case may be briefly stated as follows : The accused-appellants Atul and Ratul are brothers. Atul is elder and married. They were living together with their father Bapuram Gandhia. The deceased Ratneswar Gandhia was their paternal uncle and his house was to the contiguous south of the house of the father of the accused persons. To the contiguous south of the house of the deceased was the house of another uncle of the accused-appellants, namely, Manik Gandhia. The incident took place on 27-5-77. That night at about 11 p.m., both the accused appellants surrendered themselves at the Dergaon Police Station stating that they had caused injuries to their uncle at their home which was about 2 kms from the police station. The officer-in-charge of the police station took them in custody the same night, at about 2 a.m., an ejahar was filed by Manik Gandhia stating that at about 10/11 O'clock in the night his nephews (the accused appellants) had assaulted his second elder brother Ratneswar Gandhia with lathi and spear and had injured him grievously. In the said ejahar it was also stated that Ratneswar Gandhia had taken liquor and had attempted to set fire to his own house as well as the house of the father of the accused-appellants upon which they came out of their house and committed the incident in question.

(3.) On receipt of the aforesaid ejahar the Officer-in-Charge of the police station proceeded to the place of occurrence. He saw that Ratneswar Gandhia lying in the courtyard of Bapuram Gandhia in a pool of blood with several injuries. He was struggling with death. A number of neighbours were standing there as spectators. His wife was also standing there. Meanwhile Dr. Ghanashyam Bora of Dergaon State Dispensary arrived at the scene. He examined the injured Ratneswar and declared that he was not likely to survive. Thereupon the officer-in-charge of the police station recorded the dying declaration of Ratneswar. Soon thereafter Ratneswar succumbed to the injuries. Thereafter, investigation was started. In the police station the accused persons were interrogated. In course of which one of them Atul Gandhia was alleged to have, disclosed that he threw away the 'Jathi' in the homestead. Subsequently accused Ratul made a confessional statement before the Magistrate implicating only himself in the offence and exculpatory to his brother. Atul. The investigation was completed and the accused persons were charge-sheeted for commission of the offence under Section 302 read with Section 34 of the Indian Penal Code and committed to the Court of Sessions.