Judgment:
Debiprasad Sengupta, J.
1. This appeal is directed against the judgment and order of conviction and sentence dated 9.7.01 & 10.7.01 respectively passed by the learned Sessions Judge, Jalpaiguri in Sessions Case No. 273 of 1999 thereby convicting the accused appellant under Section 302 of the Indian Penal Code and sentencing him to suffer R I for life and to pay a fine of Rs. 5,000/- in default to suffer R I for a further period of two years.
2. The prosecution case, in short, is that on the basis of a complaint lodged by P.W.1, namely Raj Kumar Oraon, a case was registered with Banarhat P.S. alleging commission of an offence under Section 302 IPC. In the FIR, it was alleged that on the date of incident i.e., on 19.8.97 at about 8.00 p.m., the father of the informant was murdered in front of their house by the accused Jatroo Oraon and one Tirban Oraon. At the time of incident, the accused was fully intoxicated and he picked up an old quarrel with the father of the informant and in course of such quarrel, the accused assaulted the father of the informant with a piece of wood (lakri). As a result of such assault, the victim died.
3. To prove its case, the prosecution examined as many as 12 witnesses while none was examined on behalf of the defence. The defence was a plea of innocence and false implication.
4. It is pertinent to mention here that according to the prosecution, victim Joy Mangal was assaulted by the present appellant and one Tirban Oraon. Accused Tirban Oraon died prior to the commitment of the case to the Court of Sessions. Accordingly, the trial proceeded against the present appellant only.
5. P.W.1, son of the deceased was the de facto complainant and he stated in his evidence that on 19.8.97 at about 8.00 p.m. his father Joy Mangal Oraon was murdered in front of their house by the accused appellant. He further stated that the accused assaulted the victim with a piece of wood and iron rod. At the time of committing such crime, the accused was fully intoxicated. The accused picked up an old quarrel with his father and in course of such quarrel, he assaulted the father of P.W.1. He reported the incident to Banarhat Police Station and FIR was registered on the basis of such information. He was an eye-witness to the incident of assault. P.W.2 Akli Oraon was the wife of the victim. She stated in her evidence that accused called her husband and assaulted him with lathi and iron rod. Tirhan Oraon was also with the present appellant. She reached the place of occurrence when her husband had already expired. P.Ws. 3 and 4 were the post-occurrence witnesses and both of them heard that on 19.8.97, Joy Mangal Oraon was beaten to death by the present, accused appellant and one Tirban Oraon, since deceased. P.W.5 was the autopsy surgeon, who held P.M. examination over the deadbody of the victim and found the following injuries:
a) Multiple abrasion marks on the left shoulder joint and deltoid region.
b) One linear cut injury measuring 1' in length and bone deep over the outer angle of the left eye.
c) Abrasion on left side of hack.
d) One lacerated wound on the right side of occipital region.
e) Multiple linear blackish mark on back and left side of chest.
f) Fracture of the 6th and 7th ribs of left side with haemothorax and
g) Haemoperitomeuna with rupture of the liver.
According to P.W.5, death was caused due to shock and haemorrhage because of the aforesaid injuries which were ante-mortem and homicidal in nature. P.W.5 was also of the opinion that such injuries could have been caused by hard and blunt weapon like 'lathi' or 'iron rod'. In cross-examination, P.W.5 stated that in the stomach of the deceased, he found liquid with smell of liquor. P.W.7 was a post-occurrence witness and he stated that about three years back, Joy Mangal was murdered by the accused Jatroo and Tirban. P.W.7 was a resident of Mogalkata Tea Estate. He was informed by P.Ws. 1 and 2 that victim Joy Mangal was beaten to death by the accused appellant and Tirban Oraon. In his cross-examination, P.W.7 stated that on the date of incident, the accused appellant Jatroo Oraon and Tirban came near the house of Joy Mangal Oraon and picked up an old quarrel and in course of such quarrel, they assaulted the victim. He also stated that at the time of incident, both the accused persons were drunken. P.W.8 was an eye-witness to the incident and he stated that he saw the present accused appellant and Tirban, since deceased, abusing victim Joy Mangal with 'lathi'. P.Ws. 9 and 10 were the witnesses to the seizure of articles namely the 'lathis' and the blood-stained cloths of the deceased. P.W. 11 was a police constable who brought the deadbody of the victim to Jalpaiguri Sadar Hospital for P.M. examination. P.W.12 was the Investigating Officer of the case and on completion of investigation he submitted chargesheet against the present appellant.
6. The only argument advanced by the learned Advocate of the appellant is that the accused having assaulted the victim with a piece of wood (lakri) in course of a quarrel and such incident having been occurred in a heat of passion upon a sudden quarrel can be attributed with the knowledge that it would cause an injury which was likely to cause death and not any intention to cause death of the victim. Accordingly, it is submitted by the learned Advocate of the appellant that the offence committed by the accused appellant amounts to culpable homicide not amounting to murder punishable under Section 304 of the Indian Penal Code. It is pointed out by the learned Advocate of the appellant that at the time of incident, both the accused persons and the victim were drunken. The learned Advocate refers to the evidence of P.W.5, the autopsy surgeon, who stated in his cross-examination that in the stomach of the deceased, he found liquid with smell of liquor.
7. The learned Advocate appearing for the State/respondent on the other hand submits that the impugned judgment and order of conviction and sentence do not suffer from any illegality. The learned Advocate also submits that P.Ws.1 and 8 were the eye-witnesses to the incident and there is no reason to disbelieve the said witnesses. The victim was assaulted by the accused appellant along with other with a piece of wood and as a result of such assault, he died. The learned Advocate of the State further submits that although the accused was under the influence of liquor, such voluntary intoxication is not a plea recognised as an exception to criminal liability.
8. We have heard the learned Advocate of the respective parties. On carefully scanning the evidence of witnesses, in the present case, we do not find any reason to disbelieve the witnesses. P.Ws. 1 and 8 were the eye-witnesses to the incident of assault. They were cross-examined at length but nothing infirm could be elicited in their cross-examination to cast even a slightest doubt on their veracity. We accordingly hold that it was the appellant and another accused since deceased, who inflicted injuries on the victim, as a result of which the victim died. But considering the entire evidence on record, we find that the incident took place in a heat of passion over a sudden quarrel. The manner in which the injuries were inflicted and the circumstances under which the incident took place clearly negate any suggestion of premeditation. Both the accused and the victim were in a drunken condition. There was a quarrel between them over an old dispute and the accused assaulted the victim with a piece of wood (lakri). Both the accused and the victim came from a poorer section of the society. It is no doubt unfortunate that the quarrel, which started between the accused and the victim, ended with the death of the victim, but the manner in which the incident took place indicates that there was no premeditation. But we are of the view that although the accused was under the influence of liquor at the time of incident, such voluntary intoxication is not a plea recognised as an exception to criminal liability.
9. In view of the discussions made above, even accepting the prosecution case we are of the view that the accused appellant did not commit any offence under Section 302 of the Indian Penal Code, but under Section 304 Part-I of the Indian Penal Code.
10. Accordingly, this appeal is allowed in part. The conviction of the appellant under Section 302 IPC and sentence to suffer R I for life are hereby set aside. The appellant is convicted under Section 304 Part-I IPC and he is sentenced to suffer R I for 10 years and to pay a fine of Rs. 5,000/-, in default to suffer R I for a further period of 6 months.
11. The accused appellant Jatroo Oraon, who is now in jail custody, shall serve out the remaining period of his sentence.
12. A copy of this judgment along with L.C.R. may he sent down to the Court below immediately.
Arun Kumar Bhattacharya, J.
13. I agree.