1. The appellant is aggrieved by his conviction and sentence .dated 23.11.2004 passed by the learned Addl. Sessions .Judge, Adhoc, (Fast Track Court), Biswanath Chariali, .District Sonitpur in Sessions Case No.54 of 2003.
2.A First Information Report was filed by Lokhia Chowra .on 3.1.2000 to the effect that on 2.1.2000 at about 6 p.m .the appellant grievously wounded his elder brother .(Kandra Chowra) by dealing cut blows in his head and neck .with a dao inside his (Kandra Chowra's) own house and .fled away. Kundra Chowra was taken to Gingia Hospital for .treatment and later on to Monabari Hospital, but he died .in the morning of 3.1.2000.
.3.After completion of the investigations and committal .proceedings, the appellant was charged with having .committed house trespass by trespassing inside the house .premises of Kandra Chowra in order to commit the offence .of murder and that he intentionally inflicted cut blows .into the head and neck of Kandra Chowra, as a result of .which he died on 3.1.2000. The appellant denied the .charges framed and claimed trial.
.4.PW-5 Dr. J.C. Dey, who conducted the postmortem .examination on the dead body of Kandra Chowra gave a .description of the injuries and denied the suggestion .that the deceased was not in a position to talk .immediately after the injuries suffered by him. In .response to a Court question, he has stated that .considering the nature and location of the injuries, the .deceased might have been in a position to talk upto 10-15 .minutes after sustaining the injuries.
.5.PW-6 Lakhia Chowra, a neighbour of the deceased, .stated that he went to the house of Kandra Chowra at .about 7 p.m. on the date of the incident and saw the .injuries inflicted on him. He says that Kandra Chowra was .not dead at that point of time and he was taken to the .hospital, but he did not talk at all during that period. .PW-7 Pabitra Kalita, the Investigating Officer stated .that Kandra Chowra had given a dying declaration but this .was not believed by the learned Sessions Judge and we .also do not see any reason to believe that the deceased .gave a dying declaration for the simple reason that the .so-called dying declaration was not signed by the .deceased nor did it bear his thumb impression and none of .the witnesses stated on oath that a dying declaration was .made by Kandra Chowra.
.6.However, in this context, it is most important to .consider the evidence of PW-3 Basua Chowra, the daughter .of the deceased. She says that she had gone to witness a .TV programme and when she returned home, she found that .her father was lying injured. He informed her that the .appellant inflicted injuries on him. Similarly, PW-4 .Seema Chowra, another daughter of the deceased, stated .that her father was in a position to talk. She also .stated that according to her father, the appellant had .inflicted the injuries.
7.PW-1 Hriday Singh Gore, a neighbour of the deceased, .stated that though he did not witness the attack on the .deceased, both the daughters of the deceased informed him .that the appellant had killed their father. PW-2 Ramu .Chowra stated that when he went to the house of Kandra .Chowra, he found him injured and lying inside the room .and he was able to speak a little. While he did not .witness the incident, he stated that the villagers and .Kandra Chowra's children informed him that the appellant .had caused injuries on the person of the deceased.
.8.On an analysis of the evidence on record, it does .appear that Kandra Chowra was quite badly injured, but he .was in a position to communicate with those around him, .at least for a while. He has two daughters i.e. PW-3 .Basua Chowra, and PW-4 Seema Chowra who were the first to .meet him and both clearly say that the deceased told them .that the injuries were caused by the appellant. There is .nothing to doubt the testimony of these two witnesses. .Given the evidence of PW-5 Dr. J.C. Dey, it does appear .that the deceased had been in a position inform his .daughters what had happened.
.9.Given the facts as they are, we are inclined to accept .the contention of the prosecution that serious injuries .were caused by the appellant on the deceased.
.10.PW-4 Seema Chowra mentions in her cross-examination .that the deceased had a quarrel with the appellant on an .earlier occasion, but there is no elaboration on this .point. In his examination under Section 313 of the Code .of Criminal Procedure, the appellant says that he had .been injured by the deceased and that he had actually .gone to lodge a complaint to the police against the .deceased for the injury caused which was misunderstood by .the Investigating Officer as an attempt on the part of .the appellant to confess. In view of the above, it .appears that there was some intention on the part of the .appellant to take revenge or to get even with the .deceased, but in the absence of any details of the nature .of the quarrel (not enmity), we are inclined to accept .the submission of learned Amicus Curiae that there was no .intention on the part of the appellant to cause the death .of the deceased though there may have an intention to .cause serious injuries.
11.The weapon of offence was a dao, a very sharp weapon, .but the injuries as stated by PW-5 Dr. J.C. Dey do not .indicate that they were of such a nature as to intend the .death of Kandra Chowra. The injuries on the person of the .deceased are as follows:-
Injury No.1: One cut injury on the forehead vertically 4 .= x = x bone deep. Blood clot present. (After removal .of the bandage and wound stitches)
.Injury No.2: One incised wound, transversely 3. x 1 =. in .size, cutting the skin, muscle, blood vessels and nerves. .On the left side of the neck clotted blood present.
.Injury No.3: One cut injury on the anterior surfaces of .the left shoulder, obliquely, 1. x =. x muscle deep. The .edge of the wound was clear and regular..
.12.The nature of injuries suggests that the appellant .did not have the clear intention of causing the death of .Kandra Chowra. In any event, there is a doubt in our mind .in this regard and we would rather err on the side of .caution and in favour of the appellant.
.13.Consequently, while we hold that the appellant caused .the death of Kandra Chowra, we are of the opinion that it .is not a case of an offence under Section 302 of the .Indian Penal Code but of an offence under Part II of .Section 304 of the Indian Penal Code. Accordingly, we .convict the appellant for this offence and sentence him .to imprisonment for the period already undergone.
.14.While appreciating the assistance rendered by learned .Amicus Curiae, we direct the Assam State Legal Services .Authority to remunerate him to the extent of `5000/-.
15.Trial Court records be sent back immediately.