Judgment:
Girish Chandra Gupta, J.
1. This appeal is directed against a judgment dated 17th Deceiober, 2003 passed by the learned Additional Sessions Judge, Fast Track Court, Alipurduar, in Sessions Trial No. 18/2003 arising out of Sessions Case No. 5/2003 convicting the appellant under Section 304 of the Indian Penal Code and an order dated 17th December, 2003 by which the appellant was sentenced to imprisonment for life as also to pay fine of Rs. 5,000/- in default to suffer further imprisonment for a period of one year for the offence punishable under Section 304 of the Indian Penal Code.
2. Briefly stated the facts and circumstances of the case are as follows:
17th November, 2001 was the day of Dewali. In the evening at about 8 p.m. Grabrial Munda, aged about 18 years, was stabbed in the abdomen by his friend Bablu, the appellant herein. He was taken to Hantapara Tea Garden Hospital where he was treated by P.W. 10 Dr. Panda. P.W.10 deposed as follows:
The victim Grabrial (male 20/21 year) came to the hospital with bleeding injury in his abdomen. To stop bleeding I stitched to the wound taking proper care. The patient stated me that during altercation one Bablu Oraon assaulted him by a knife. As the condition of the patient was complicated so I referred him to Birpara State General Hospital then and there without any dealy.
3. P.W.1, father of the deceased Grabrial corroborated the evidence of the P.W. 10. He deposed as foilows:
My son came running to my house while shouting and stated me that Bablu Oraon has assaulted with a knife and he fell down in front of my house. I took my son to Hantapara T. Garden Hospital and doctor made some treatment there and then doctor advised us to take him to Birpara Hospital and we took him to Birpara Hospital and admitted him there as referred by doctor. On Sunday night I admitted him at Birpara Hospital and on the next day i.e. Monday my son died at about 10.00 a.m. in the morning.
4. P.W. 2 Dominik, an eye-witness, deposed as follows:
The incident took place on 17.11.2001 at about 8 p.m. in the evening in front of the house of Philip Munda of Upper Line of Hantapara Tea Garden. In the incident Bablu Oraon assaulted Grabrial Munda by a knife in his abdomen (left side of belly). I saw Bablu Oraon assaulting Grabrial Munda. I saw Grabrial running towards his house. Then I took Grabriai Munda to hospital, at our Garden Hospital and then took him to Birpara Hospital. At about 10 p.m. in the next night Grabrial Munda died. The stabbing was done at about 8 p.m. on Saturday and Grabrial died the next night at about 10 p.m. i.e. on Sunday. Bablu Oraon is present in Court (identified). The seized weapon was shown to the witness and he identified the same stating that was the weapon used by Bablu Oraon in stabbing and the witness snatched away the weapon from Bablu and deposited the same in the PS. This is the weapon used by Bablu Oraon in stabbing the victim Grabrial Munda Ext-Mat-1.
5. P.W.3 Pitrash, another eye-witness, deposed that hearing the hue and cry he had come out of his house. He saw the P.W.2 Dominik had caught hold of the accused Bablu Oraon. P.W. 2 also took away the knife from the accused Bablu.
6. P.W.6 Kele Munda deposed that hearing the hue and cry he rushed to the house of Grabrial when the latter told him that he had been assaulted by Bablu by a knife.
7. From the evidence of the witnesses, discussed above, the fact that the deceased was dealt a fatal blow by the accused Bablu has been well established. The victim died at 10 p.m. on 18th November, 2001 and not at 10 a.m. as erroneously deposed by the P.W.I. The inquest report tendered at the trial goes to show that the victim died at 22.00 hours on 18th November, 2001.
8. From the evidence of the P.W. 10, it appears that the deceased himself had told Dr. Panda that there was an altercation. This part of the evidence finds corroboration from the evidence of the P.W.3, Pitrash. He deposed that he heard the quarrel and shouting between Bablu Oraon and Grabrial from his house.
9. P.W.6 Kele Munda deposed in this regard as follows:
There was mdra-mari between Grabrial and Bablu and Bablu hit Grabriai by a knife in the belly.
10. P.W.9 Dr. Rakshit conducted the post-mortem examination. The post-mortem report has been marked Ext. 4. Evidence of P.W.9 was that he found only one injury 1' x 1/2' through the abdominal cavity. According to him the death was due to the aforesaid injury which was ante-mortem and homicidal in nature.
11. The accused was charged under Section 304 IPC and has been convicted thereunder. Mr. Chatterjee, learned Advocate, appearing in support of the appeal, submitted that the punishment inflicted by the learned Trial Court is much too harsh. The learned Trial Judge has held as follows:
That the accused Bablu Oraon had intention to cause the death of Gabrial Munda for which he inflicted stab injury in his belly and the prosecution has succeeded in proving the charge under Section 304 of the IPC. In the result, the prosecution case succeeds.
12. The evidence discussed above discloses that the accused and the deceased were friends. They for some reason fell out and fought between themselves. There was a heated altercation between them. The weapon used by the accused is a type of knife commonly used in the kitchen according to the evidence of P.W.3 which get some support from the evidence of the P.W.2. Only one blow was dealt which proved fatal.
13. We are of the view considering the evidence that the accused did, in fact, know that the injury was likely to cause death but it is difficult to believe that he intended to cause death of his friend. In that view of the matter the punishment inflicted by the learned Trial Judge appears to be disproportionate. The accused cannot be more sinned against than sinning. The punishment is as such reduced from imprisonment for life to rigorous imprisonment for 10 years. The amount of fine with default stipulation shall remain the same. The appeal is thus partly allowed.
14. The appellant shall get the benefit of set-off in terms of Section 428 Cr. PC out of the period of imprisonment already undergone.
15. The learned Trial Court is directed to issue necessary jail warrant as required by the Rules in respect of this appellant.
16. Lower Court Records with a copy of this judgment be sent down forthwith to the learned Trial Court for information and necessary action. A copy of this judgment be also sent to the Superintendent, Correctional Home, where the appellant is now under detention for information and necessary action.
17. Urgent xerox certified copy of this judgment, be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities.
Kishore Kumar Prasad, J.
I agree.