Gauhati High Court
Habibur Rahman And 2 Ors vs The State Of Assam And Anr on 6 February, 2019
Author: S.Serto
Bench: Songkhupchung Serto
Page No.# 1/14
GAHC010010922016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A. 45/2016
1:HABIBUR RAHMAN and 2 ORS
2: AFAJUDDIN
3: FAIZUDDIN
ALL ARE SONS OF KISMAT ALI
R/O VILL. GEREKONI UNDER DHING POLICE STATION IN THE DIST. OF
NAGAON
ASSAM
VERSUS
1:THE STATE OF ASSAM and ANR
2:SARAFAT ALI
S/O LATE SAFAR UDDIN
R/O VILL. GEREKONI
P.S. DHING
DIST. NAGAON
ASSAM
Advocate for the Petitioner : MR.D TALUKDAR
Advocate for the Respondent : PP, ASSAM
Page No.# 2/14
CRL.A(J) 22/2016
1:MD. ABDUL KARIM
VERSUS
1:THE STATE OF ASSAM and ANR.
2:MD. SARAFAT ALI
S/O-LT. SAFAR UDDIN
VILL-GEREKONIGAON
P.S.-DHING
DIST.-NAGAON
ASSAM.
Advocate for the Petitioner : MR. B PRASAD
Advocate for the Respondent : PP
ASSAM
BEFORE
HONOURABLE MR JUSTICE SONGKHUPCHUNG SERTO
HONOURABLE MR. JUSTICE MIR ALFAZ ALI
JUDGMENT
(Oral) Date : 06-02-2019 (S.Serto, J) These two criminal appeals, the first one i.e Crl.A No. 45 of 2016 filed by the three accused persons, namely, Habibur Rahman, Afajuddin and Faizuddin and 2nd Crl A (J) No. 22/2016 filed by Md.Abdul Karim are directed against the same judgment and order dated 19-01-2016 passed by the learned Sessions Judge, Nagaon in Sessions (T-I) Case No. 49 (N) of 2002 in which all the appellants were held guilty of the offences punishable under Section 302/34 IPC and sentenced to R.I for life and with a fine of Rs. 10,000/- each with stipulated S.I of one year in default of payment of the fine amount.
1. The brief facts and circumstances leading to the filing of these appeals are Page No.# 3/14 stated herein below: In the mid night of 26-09-2000, late Rafiqul Islam son of the informant Sarafat Ali of Gerokani village was found with head injuries in the house of one Farukul of the same village. He was taken to the Dhing police station and thereafter, to Dhing PHC and to Nagaon Civil Hospital where he died in the evening of 27-09-2000 at 4:00 P.M. Post mortem was conducted over the dead body and the FIR was lodged on 28-09-2000. During investigation, the appellants along with Habibur Rahman were named as accused and investigation was carried out. After the investigation was over, charge sheet under Section 302/34 IPC was framed against the accused by the learned Sessions Judge, Nagaon. In the course of trial, one of the accused namely, Hifjur Rahman claimed that he was juvenile at the time of occurrence of the crime. Accordingly, inquiry was conducted and he was found to be juvenile as claimed by him therefore, his case was referred to the Court of J.J.B, Nagaon. For the rest of the accused, (the appellants before us), the trial continued before the learned Sessions Judge and in the trial, as many as 10 PWs including the investigation officer and the doctor who conducted the post mortem over the dead body of the deceased were examined. The accused/appellants did not produce any defense witness.
2. After examining the evidence on record and after hearing the learned counsels representing the prosecution and the accused persons, the learned Sessions Judge came to the finding that the accused persons (appellants) had murdered the deceased victim in furtherance of their common object and held them guilty of offence punishable under Section 302/34 IPC. Accordingly, after the sentence hearing, the accused appellants were sentenced to R.I for life and with a fine of Rs. 10,000/- each with default stipulation of S.I of one year. Being aggrieved, the three accused, namely, Habibur Rahman, Afajuddin, and Faizuddin has approached this Court by filing Crl.A No. 45/2016 and one of the accused i.e Md. Abdul Karim has filed the 2nd appeal Crl. A (J) 22/2016.
3. The case of the appellants in Crl. A 45 of 2016 as submitted by the learned senior counsel Mr. H R A Choudhury assisted by Mr. A. Ahmed is that there is no Page No.# 4/14 evidence in the record to prove that the accused persons/appellants had committed the crime they were charged. Learned senior counsel submitted that the evidence given by the PWs are not reliable since there are full of contradictions between them and no eye witness ever stated that they saw the accused persons committing the offence. The learned senior counsel also submitted that the night of 26-09-2000 was pitch dark so, it is not possible that anybody could have seen the accused persons committing the offence, therefore, the evidence given by the PWs are not reliable at all. Learned senior counsel further submitted that there was delay in filing the FIR since the occurrence of the crime was stated to be on 26-09-2000 whereas, the FIR was registered only on 28-06-2000. Such delay in registration of FIR leads to distortion of truth as it gives sufficient time to the complainants to come up with a story suitable to their case. In support of his submissions, learned senior counsel cited the judgment of Hon'ble Supreme Court in the case of Bhajan Singh @ Harbhajan Singh & Ors. -vs-State of Haryana, reported 2011 7 SCC 421. The relevant paragraphs 29 and 30 of the judgment are given here below:-
" 29. The High Court has reached the conclusion that the judgment of the trial Court was perverse as the trial Court held that it was a clear cut case of common object. The High Court has decided the issue as under:
"There was common object which appellants Nishabar Singh, Mukhtiar Singh and Joga Singh shared with their acquitted co-accused Bhajan Singh alias Harbhajan Singh, Puran Singh and Gurdeep Singh. They entered the courtyard of the house of P.W. Trilok Singh by raising `Lalkara' that they would teach a lesson for tethering cattle in the street. By application of Section 149 of the Code, they all the six were liable for inflicting injuries to Gian Singh and Nishan Singh, which resulted in their deaths and brutal injuries to P.W. Ajaib Singh. The trial court was not justified in acquitting Bhajan Singh alias Harbhajan Singh, Puran Singh and Gurdeep Singh on hypothetical medical evidence, by ignoring the reliable direct evidence of P.Ws. Trilok Singh and Ajaib Singh."
In view of the above, we do not find any reason to accept the submissions so made on behalf of the appellants.
30. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution's case, may not prompt the Court to reject the evidence in its entirety. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions." Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, Page No.# 5/14 would not itself prompt the court to reject the evidence on minor variations and discrepancies. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses. [Vide: Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191; and Brahm Swaroop (Supra)].
4. The Learned senior counsel in reiteration of his submission that the witnesses examined by the prosecution are not reliable and therefore, it would not be safe to rely on their version has relied on the judgment passed in the case of Kanju @ Balachandran-vs-State of Tamil Nadu, reported in 2008 2 SCC 151. The relevant paragraph 8 of the judgment is given below:-
" 8. In Vadivelu Thevar V. State of Madras (AIR 1957 SC 614) this Court had gone into this controversy and divided the nature of witnesses in three categories, namely, wholly reliable, wholly unreliable and lastly, neither wholly reliable nor wholly unreliable. In the case of the first two categories this Court said that they pose little difficulty but in the case of the third category of witnesses, corroboration would be required. The relevant portion is quoted as under:
(AIR p. 619, paras 11-12) Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for, proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses."
Further, the learned senior counsel submitted that occurrence of the crime was Page No.# 6/14 in the night of 26-09-2000 and the victim died in the hospital in the evening of 27-09- 2000. Therefore, precious time was lost between the occurrence of the crime and the time he was taken to hospital. Had he been treated in time properly, there was chance of survival. In that event, the offence under Section 302/34 IPC would not have been attracted.
5. Learned Amicus Curiae, Mr. B. Prasad appearing for the appellant in the 2 nd Crl. A (J) 22/2016 has come with a different theory. The learned Amicus Curiae submitted that from the statement given by PW 5 and PW 1 it has come to light that the victim was having love affair with one Ms. Dilwara the daughter of one of the accused Mr. Habibur Rahman. So, in that night of 28-09-2000 he had gone to her house and while attempting to get in touch with her he had poked at Mr. Hepjul her brother (son of Habibur Rahman) with a stick through the wall assuming that he was Dilwara. Hepjul on being awaken from sleep thought that a thief has come to their house ran after Rafiqul with a stick in hand and gave him a blow on his head. It was this single blow which led to the death of Rafiqul (the victim). Learned amicus curiae further submitted that this evidence has not been challenge by the prosecution therefore, it is not improbable that such incident had happened. As such, the appellant in this case i.e. Md. Abdul Karim cannot be held guilty of the offence charged against him.
6. Mr. H. Sarma, learned Additional P.P., Assam appearing for the State of Assam referred to the statement given by PW6 particularly, to the part where the witness had stated as given here "he answered that the said accused persons had assaulted him" (para 7 and 8 line) and submitted that this is a dying declaration of the victim to the PW6 and the same has been confirmed by the witness at para 2 of his cross- examination wherein, he has stated that "Rafiqul stated the names of the 5 persons". The learned Additional P.P thereafter submitted that going by this dying declaration of the victim, it can well be concluded that the accused persons i.e the appellants had assaulted the victim which ultimately cause his death. Further, learned Additional P.P submitted that dying declaration, given before anybody, once its credibility is Page No.# 7/14 established, based on that, conviction can be drawn. In support of his submission, learned Additional P.P referred to the judgment of the Hon'ble Supreme Court in the case of Ramesh and Ors-vs-State of Haryana, reported in 2017 1 SCC 529. Relevant paras 31 and 32. The contents of the two paragraphs of the judgment are given herebelow:-
31. Law on the admissibility of the dying declarations is well settled. In Jai Karan v. State of N.C.T., Delhi MANU/SC/0613/1999 : (1999) 8 SCC 161, this Court explained that a dying declaration is admissible in evidence on the principle of necessity and can form the basis of conviction if it is found to be reliable. In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court on strict scrutiny finds it to be reliable, there is no Rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence, neither extra strong or weak, and can be acted upon without corroboration if it is found to be otherwise true and reliable. There is no hard and fast Rule of universal application as to whether percentage of burns suffered is determinative factor to affect credibility of dying declaration and improbability of its recording. Much depends upon the nature of the burn, part of the body affected by the burn, impact of the burn on the faculties to think and convey the idea or facts coming to mind and other relevant factors. Percentage of burns alone would not determine the probability or otherwise of making dying declaration. Physical state or injuries on the declarant do not by themselves become determinative of mental fitness of the declarant to make the statement (See Rambai v. State of Chhatisgarh MANU/SC/0856/2002
32. It is immaterial to whom the declaration is made. The declaration may be made to a Magistrate, to a Police Officer, a public servant or a private person. It may be made before the doctor; indeed, he would be the best person to opine about the fitness of the dying man to make the statement, and to record the statement, where he found that life was fast ebbing out of the dying man and there was no time to call the Police or the Magistrate. In such a situation the Doctor would be justified, rather duty bound, to record the dying declaration of the dying man. At the same time, it also needs to be emphasized that in the instant case, dying declaration is recorded by a competent Magistrate who was having no animus with the accused persons. As held in Kushal Rao v. State of Bombay MANU/SC/0107/1957 : 1958 SCR 552, this kind of dying declaration would stand on a much higher footing. After all, a competent Magistrate has no axe to grind against the person named in the dying declaration of the victim and in the absence of circumstances showing anything to the contrary, he should not be disbelieved by the Court Page No.# 8/14
7. Now coming to the evidence given by the prosecution witnesses;
(i) From the statement of PW-1, we find that at about 12:00 O' clock in the night of 26-09-2000, the victim who was studying law in Nagaon and had come home that day was with his father in their house, and while they were there, Abdul Karim the accused appellant in Crl. A (J) 22/2016 had came to their house and asked the victim to go with him to his maternal uncle's place (maternal uncle of the deceased) on the pretext that his maternal uncle was not well. This statement of the witness is confirmed by the witness himself in his cross-examination when he stated that Karim had called out his son around 12:00 O' clock at night. There is nothing in the record which contradicts or controverts this statement of PW1.
(ii)PW-2 stated that on hearing hullah, he went out from his home and saw all the accused persons present on the road and he also found the victim on the road bleeding from his head. He also stated that the accused were armed with lathis. The witness went on to state that on his query as to why the victim was assaulted, the accused persons replied to him that because he came to commit theft.
(iii) PW 3 whose name is also same with the deceased stated that on hearing hulla, he went out of his house and he first saw Hapjut and Karim. He also stated that he saw Karim with an iron strip in his hand and Hapjut with a lathi. The witness further stated that he saw the rest of the accused persons at the same spot and Rafiqul i.e. the deceased also standing there. In his cross-examination, the witness stated that he was the first person to reach the place of occurrence. It may be noted here that from the sketch map exhibited as Exhibit 2, the house of the witness is shown to be closes to the place of occurrence and it is very likely that he was the first person to hear and reach that place as stated by him.
(iv) P.W 4 stated that the deceased came to his place around 12:30 A.M and when he opened the door and let him in, he told him that Karim i.e the accused appellant in Crl.A (J) 22/2016 had assaulted him. In his cross-examination, an attempt was made to discredit his statement given in the examination-in-chief but evidence given by the witness was not shaken.
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(v) PW-5 stated that he heard that somebody had killed Rafigul but could not see him since he was already taken to Dhing. The witness was declared hostile by the prosecution. On further examination, the witness stated that he went to the house of Habibur Rahman with his elder brother Abdul Kuddus and on reaching, he saw Habibur's wife with her son Hipjor and his brother Aafaz Ali in the courtyard. He also stated that on his query, Hepjul replied that Sarfat Ali's son Rafiqul Islam (the deceased) came to their house with intention to commit theft and while trying to commit the same, he poked him with a stick through a hole which woke him up, and soon after he woke up, he opened the door and chased after him shouting "thief, thief" and hit him 2/3 times with a lathi made from betel nut tree. The witness further stated that he saw blood in their court yard and the same blood strains leading to the house of Rafiqul's maternal uncle. He also stated that Habibur and Afaz went there and on seeing him Afazuddin shouted to him (Rafiqul) to run or they will finish him.
(vi) P.W6 is the maternal uncle of the deceased. The witness stated that the crime took place in front of the house of the accused No.1 Habibur at around 11'O clock or 12'O clock at night and at that time he was at home. The witness further stated that the deceased was in love with Habibur's daughter Dilwara and the villagers tried to pursued Habibur to get his daughter married to the deceased. But since the deceased belongs to a poor family, Habibur did not agree to the proposal and the deceased being disappointed, went to Nagaon and took admission in LLB course. The witness further stated that on the day of occurrence of the crime, he was at home and the distance between his house and the place of occurrence is about 40 metres. He also stated that the deceased was watching T.V at Fakhrul Clerk's home and at around 12'O clock of that night, Abdul Karim, the accused appellant in Crl. A (J) 22/2016 called the deceased from there and after calling him from there, he himself (Adbul Karim) Habibur Rahman, Hipjur Rahman, Faizuddin and Afazuddin assaulted the deceased. On hearing hulla, he reached the place of occurrence of the crime and saw Rafiqul i.e. the deceased with blood on his head and to his query, Rafiqul answered that the accused persons had assaulted him. Thereafter, he took Rafiqul to Fakrul Clerk's house where the father of Rafiqul was called for. After his Page No.# 10/14 arrival, he took him to PHC and then to Nagaon Civil Hospital. The witness also state that at around 3:00 P.M of the following day Rafiqul died in the hospital. In his cross- examination, he stated that he saw Rafiqul's injuries and he saw him groaning of pain. He also stated that when he asked him, Rafiqul stated the names of the five persons. The statement of the witness that Rafiqul had told him that the accused persons had assaulted him has not been shaken.
(vii) P.W 7 is the Doctor who conducted the post mortem over the dead body of Rafiqul, the victim. According to his statement, his findings and opinions are as follows: (1) incised wound over the parietal bone region of the scalp measuring 3"x2"x ½ " (2) multiple fracture of the right parietal, frontal and occipital bones (3) Haematoma on both the cerebral haemisphre. Heart-left empty and right contained fluid and clotted blood. Small intestine contains faecal matters. The injuries were ante-mortem in nature. In my opinion, death was due to shock and haemorrhage as a result of the head injury. This injury can be caused on being assaulted by a lathi. In his cross-examination, the Doctor stated that if the injury is caused by sharp cutting weapon, it will be three dimensions having length, breadth and depth. The brain injury can be depended on the thickness of the weapon used. In case of 2 nd injury i.e. multiple fractures, there was no external bleeding. Injury No.1 shall cause profuse bleeding as a result of which shock will develop and this shock leads to coma. After such injury No.1, a man cannot talk.
(viii) P.W-8, stated that in the night of 26-09-2000, he was sleeping at his house and he heard hue and cry of "thief, thief". He noticed that the shouting came from the house of Habibur Rahman the accused No.1 so he went there and when he met him and asked him what had happened, he told him that a thief had came to his house and the thief has been identified as Rafiqul the deceased. The witness went on to state that he did not see Rafiqul. He was declared hostile by the prosecution. The witness in cross-examination stated that Rafiqul was a law student and he was in love with Dilwara the daughter of Habibur Rahman accused No.1. He also stated that at the time of the occurrence the deceased no longer had relationship with Dilwara.
Page No.# 11/14 The witness further stated that all the accused persons were from the place of occurrence of the crime.
(ix) P.W 9 is the mother of Dilwara. She stated that Dilwara is her daughter and she had given her to marriage ¾ years back. She also stated that the incident took place at night and at the time of the incident, she was at home but she did not come out from there. The witness was declared hostile by the prosecution. In her cross-examination, she denied that the deceased ever had love affair with her daughter.
(x) P.W-10 is the Investigation Officer of the FIR case. He stated that on 26-09- 2000 he had received information from the informant Sharafat Ali that his son Rafiqul was called out by the accused Karim and thereafter, all the accused persons had assaulted him on his head and as a result his son had sustained injuries. The I.O also stated that according to the information, Sharafat Ali went to the house of Fakrul and found his son Rafiqul in a serious condition and from there he shifted him to hospital where the victim succumbed to his injuries. The investigation officer further stated that after registering the FIR against all the accused, he investigated the case. He exhibited the FIR. He also exhibited the sketch map of the place of occurrence. The Investigation Officer further stated that in the course of investigation, he examined several witnesses at the place of occurrence and he took the dead body to the Civil Hospital for post mortem and after the post mortem was conducted, he collected the report. He also stated that during the course of investigation, he had seized one split up lathi made of bettle nut tree which was about 3 inch width. He also exhibited the seizure lists and his signature on the exhibits and identified the split-up lathi made of the bettle-nut as Exhibit -1. The witness also stated that during the course of investigation, he arrested all the accused persons except Habibur Rahman who was later declared absconder and after the investigation was completed, he submitted the charge sheet against all of them.
8. We have gone through the evidence and the records and applied our minds on the same. We have also considered the submissions of the learned counsel Page No.# 12/14 appearing for the appellants and the submissions of the learned Additional P.P., Assam.
From the evidence stated above, one thing we find well established is that at 12'O clock mid-night on 26-09-2000, the accused Abdul Karim came to the house of the victim and asked him to come with him to his maternal uncle's place on the pretext of his maternal uncle not being well. The second thing which we also find well established from the evidence is that on reaching the place of occurrence, the other accused persons were waiting and in furtherance of their common object and intention, assaulted the victim causing serious injuries to his head which ultimately led to his death. We agree with the learned counsel for the appellant that there are some discrepancies in the statements of the witness but this discrepancies in our opinion, does not diminish the overall credence of the evidence given by them. We are of the firm view that the evidence of the PWs has shown beyond reasonable doubt that it was non-other than the accused persons who assaulted the victim in that fateful night. We also agree with the finding of the learned Sessions Judge that the evidence on the prosecution's case has been mainly established by PW 3 and PW 6. PW 3 had stated that on hearing hulla, he went out of his house and he first saw Hapjut and Karim. He also stated that he saw Karim with an iron strip in his hand and Hapjut with a lathi. The witness further stated that he saw the rest of the accused persons at the same spot and Rafiqul i.e. the deceased also standing there. In his cross-examination, the witness stated that he was the first person to reach the place of occurrence. This statement of the witness has much weightage and it is trustworthy because his house is nearest to the place of occurrence and it is most likely that he was the first person to be at that place and witness the crime scene. We may also add here that as per evidence, in that midnight when the victim was called out from his house, except the accused persons, no other person was there at the place of occurrence. As such, no other person or persons than the accused persons could have assaulted the victim in that fateful night.
The fact that the FIR was registered after two days, in our opinion, does not diminish in any way the credence of the prosecution case. FIR which is registered Page No.# 13/14 after inordinate delay can be doubted. But in this case it is only a matter of two days delay. Therefore, the plea of the appellants based on the delay of two days in filing the FIR appears to be a little farfetched and not acceptable, more so, in view of the evidence on record.
As submitted by the learned Additional P.P., Assam dying declaration of the deceased to P.W6, wherein, he had disclosed that the accused are the persons who assaulted him appears to be trustworthy and we find no reason why it cannot be relied upon. A dying declaration made to any person, once it is shown to have been made voluntarily without any influence it can always be relied upon. In this case, the circumstances under which and the way how the deceased disclosed that it was the accused persons who assaulted him leaves no room for doubting the truthfulness of the declaration.
However, we differ with the learned Sessions Judge in his finding and conclusion that the accused persons had committed the offence punishable under Section 302 IPC because of the facts and circumstances under which the crime was committed. Had the accused persons intended to cause death of the victim, they would have done it there and then since it was midnight and there was no one to defend him or to come to his rescue and, since he himself had nothing to defend himself. The recovery of the lathi made of split bettle nut also shows that the accused appellants were not armed to the teeth with intention to finish the deceased there and then. It appears to us from the evidence of the witness that the deceased was in love with the daughter of the accused No.1 and he being from a poor family and not wanted, the family members of the girl were trying to teach him a lesson so that he does not continue the relationship with their daughter. But unfortunately, the event took a different turn which was not in their intension. In a small village, everyone knows the affair of the other persons. In this case too, two witnesses have testified that the victim was in love with the daughter of the accused No.1.
9. In view of what has been stated above, we are of the view that the accused persons had committed the offence punishable under the second part of Section 304 Page No.# 14/14 IPC in furtherance of their common object and intention and not the offence under Section 302 of the same code.
10. Considering the nature and gravity of the offence and circumstances under which it was committed, we are of the view that conviction of the accused persons under section 302 IPC would have to be converted to second part of section 304 IPC. We accordingly convert the conviction from section 302 IPC to second part of section 304 IPC and section 34 of the same Code. After considering the gravity and the nature of the crime and the circumstances under which it was committed and also taking into consideration the age of some of the accused persons, we are of the view that the sentence of 6 (six) years with fine of Rs. 10,000/- each would meet the ends of justice. We accordingly modify the sentence to RI of 6 (six) years with a fine of Rs. 10,000/- each and in default, to further imprisonment of 6 (six) months. The period of imprisonment already spent by the accused appellants during the investigation, trial and after the conviction shall be set off against the substantive sentence. The fine amount should be given to the parents of the deceased.
11. The parents of the victim are entitled to a sum of Rs. 2 (two) lakhs under the victim compensation scheme. The District Legal Service Authority, Nagaon shall pay the amount to the victim's parent on proper identification and verification.
12. Before we part with these appeals, we also record our appreciation of Mr. B. Prasad, Amicus Curiae for the assistance rendered by him. The High Court Legal Services Committee shall pay a sum of Rs. 7500/- to Mr. B. Prasad, Amicus Curiae as his legal fees.
Appeals are disposed of accordingly.
JUDGE JUDGE Comparing Assistant