DILIP BHARALI Vs. STATE OF ASSAM

JUDGEMENT

(1.) This Appeal has been filed by the Appellant against the judgment of the learned Session Judge. Golahat dated 2.4.1996 in Sessions Case No. 13 of 1994 convicting the accused Appellant under Section 302 I.P.C. and sentencing him to undergo rigorous imprisonment for life. He has been further sentenced to pay fine of Rs. 2,000 and in default of payment, he has been further sentenced to undergo rigorous imprisonment for one year.

(2.) The Counsel for the Appellant at the very out set submitted before us that he does not propose to argue the case on merit and that guilt of the Appellant is proved beyond reasonable doubt not only by the statement of the P.W. 1 who is an eye witness to the occurrence but by other prosecution evidences as well. He has, however, submitted that the present case falls under Section 304 Part II of the I.P.C. and that the offence of the Appellant be converted if under said section.

(3.) We have given our thoughtful consideration to the argument of the counsel of the Appellant and we are inclined to agree with him. We have also gone through the statement of the Doctor who performed the post-mortem examination and the Post-Mortem Report. The Doctor, P.W.-11 found one penetrating cut wound in the middle part of the left chest of size 2 x 1 x depth of the chest. Death in the opinion of the doctor was due to shock and intrathorasic haemorrhage, as a result of the injury sustained by the deceased. He did not state that the injury was sufficient in the ordinary course of nature to cause death. Even according to the eye version account the deceased was alleged to have been given only one blow. The knife which was recovered find which was rather produced by the accused himself before the Police was of the size of 9 length. The size of the injury shows that the blow was not inflicted with a heavy force, otherwise it could have caused bigger injury particularly when the accused was a young College going boy. If the accused intended to cause death he could have given the injury with a greater force. There was nothing to prevent him to give more blows. It appears to us that the accused never intended to cause the death of the deceased, in some what similar circumstances the Hon'ble Supreme Court in the case of single blow has converted the offence under Section 304 Part II in , Laxman Kalu Niklje v. State of Maharashtra, 1968 AIR(SC) 1390State of Punjab v. Bira Singh and Ors. and in, 1995 supp3 SCC 708 Mavila Thamban Nambiar v. State of Kerala., 1997 AIR(SC) 687 In any case, the present case is on the border line between the murder and culpable homicide not amounting to murder and therefore the Appellant is entitled to the benefit of reasonable doubt.