IN THE DISTRICT & SESSION COURT, AIZAWL Crl. Tr. No.119 of 2010
Ref. Ngopa PS Case No. 1/10 u/s 302/34 IPC S.R.No.183/10
State of Mizoram : Complainant
-Vrs-
Sangtuala & anr. : Accused
Date of Hearing & Judgment : 30-5-2012
BEFORE. K.L.L IANA , ADSJ-I
PRESENT
For the Prosecution: R.C.Thanga, P.P. : Lalchhandama Addl.PP Lalthanmawii, APP.
For the Defence : : L.H.Lianhrima. Advocate.
JUDGMENT & ORDER
1. The prosecution story of the case in brief is that on 4.5.2010 at 9:00pm an FIR was lodged by Remlalliana S/o Thangruaia of Kawlbem with the OC, Ngopa PS to the effect that on 4.5.2010 his father Thangruaia 60 years had gone to the jungle to collect grass for cattle was found lying unconscious on the road side near the Jhum Hut of Kawlthana of Ngopa at Phuldungsei, Mimbung road. He had received serious injuries on his body. He further stated that his father was caused grievous hurt by suspected namely 1) Kawlthana s/o Hmunthanga and 2) Sangtuala s/o Siamthanga both of Ngopa. Hence Ngopa PS case No.1/10 dt.4/5/10 u/326/34 IPC was registered and investigated into. At the time of lodging the FIR, the victim Pu Thangruaia 60years s/o Lianchungnunga (L) of Kawlbem was brought to CHC Ngopa. Submitted medical requisition to M/O CHC Ngopa. But the M/O CHC Ngopa referred the victim to the Civil Hospital Aizawl on the same night as the case seemed to be serious. Accordingly, sent requisition to O/C Aizawl PS to take necessary action as the victim had been referred to Civil Hospital Aizawl. Prompt action was taken. Visited the PO immediately and drawn sketch Map of the PO. Seized one white T.Shirt stained with blood which was used for wiping blood oozing out from the mouth of the victim. Utmost efforts was made in order to arrest the suspected accused Kawlthana s/o Hmunthanga and Sangtuala 38years s/o Siamthanga of Ngopa and they were arrested on 5.5.2010 at 3:00am and accused Kawlthanzama 32years s/o Hmunthanga of Ngopa also arrested on dt.5.5. 2010 at 7.30 PM.
2. On 5-5-2010 at around 12 noon a reliable information was recived from Aizawl that the victim succumbed to his injury at Aizawl Civil Hospital on the same day at around 11.45 PM and then sent W/T requisition to OC, Aizawl PS to hold inquest as well as PME. Accordingly, inquest and PME were done at Aizawl Civil Hospital. The PME report ascertained that the cause of the death was head injury produced by blund force weapon impact.
3. During the course of investigation all possible formalities have been observed. Examined the complainant and all available witnesses and the accused were thoroughly interrogated and both of the accused confessed that they brutally assaulted the victim and witnesses Zonunsanga and Haudingliana were present at the time of the incident and they stated that the accused and the victim took liquor together and accused were quarreled upon the victim. The victim went out from the jhum hut and accused Sangtuala followed him and knocked down on the ground in front of the jhum hut. The
victim stood up himself and went towards Ngopa side of the raod. Then the two witnesses left for their work site. The injuries sustained by victim were caused by the accused.
4. During the course of investigation a prima facie case was found well established against the accused u/302/34 IPC and charge sheet was filed accordingly.
5. The defence case was that the accused were innocent.
6. During the course of trial the prosecution examined 12-witnesses.
7. PW 1, Remlalliana is the son of the deceased who lodged the FIR and he identified the FIR exbt P-1. He knew the two accused persons, He identified the accused and stated that they often visit them by taking meal in their house. On 4.5.10 he lodged Exbt-P-1 to OC, Ngopa PS by furnishing relevant information with a request to take necessary action against the culprits. The body of his father Thangruaia was laid on the metal road side near Kawlthana’s jhum hut which was about 7Kms away from Kawlbem village. His father was 60years old at the relevant time. He suspected the two accused persons to have committed an offence in that regard or in the case of the dead of his father as the incident was witnessed by PW-2. When Police arrived at their village they examined him in the house of their VCP and recorded his statements. When they located the body of his father he found cut injury marks in his tongue and another injury marks inside his mouth, cut injury marks in his right arm, in his back head was expanded (dup) arising out of the injury inflicted by the two accused. When he reached the PO the two accused persons already run away from the PO. His father was a patient of high blood pressure and he never took any liquor. While the two accused persons are habitual offenders such as theft, misuse of drugs and liquor etc. Had the accused not been surrendered before the Police they would be searched and located by the unruly mob and they would have faced dire consequences. When he found his father lying on the ground he found blood oozing from his nose and vomited by blood through his mouth. Exbt-P-1 is FIR, Exbt-P-1(a) is his signature.When he saw his father at the PO he asked him what happen to him and he informed him that it was very painful (a na) and he said nothing more than that and he was evacuated to Ngopa PHC on the same day and as per reference they rushed to Aizawl and after he was hospitalized on 5.5.2010 at Civil Hospital, he expired at about 11:00AM of the said date.
8. PW-2 Zonunsanga identified the accused persons and stated that he was engaged by Colleen Lalsangpuii, contractor Zarkawt as driver since 2005. At the time of the incident he was in Kawlbem village in connection with contract work of his employer at Kawlbem. On 4.5.2010 they lifted Pu Thangruaia by his vehicle up to the place where he was to collect fodder and he was to return to Kawlbem by his said vehicle after he complete his said work. On the same afternoon at about 2:30 he entered jhum hut belonged to accused Kawlthana and Pu Thangruaia, Kawlthana, Lalthakimi, Sangtuala and Haudingliana were already there. At that time the two accused persons and Haudingliana took liquor and Pu Thangruaia advised them not to indulge in taking liquor and after that Pu Thangruaia went out to answer the call of nature and on his return accused Sangtuala wrestled him down on the ground which was in front of the jhum hut and after that Sangtuala had given fist punch to Haudingliana who was also standing innocently in front of the said jhum hut without any provocation. Pu Thangruaia was taken towards the main road pointing to Ngopa and Kawlthana then gave him a fist punch on the cheek of Pu Thangruaia as a result of which he fell down on the ground. They then went to call Haudingliana and on their return they found the victim lying on the road side in unconscious situation. They tried to evacuate him to the village but removed him at the said jhum hut as he was found to be quite serious. Since they could not put him in their vehicle they returned to Kawlbem to report about the incident and they reported that incident to Gawisiami w/o victim and the relative of the victim rushed to the PO. After a case was registered his statement was recorded by the Police at Ngopa. When the body of the victim was located various injury marks were found on his person such as cut injury marks in his tongue, and inner portion of his mouth.
9. PW-3 Haudingliana identified the accused and stated that he was engaged by Colin Lalsangpuii as labour from 2005 up to September,2010 and at the time of the incident he discharged his duty on the day of the incident. On 4.5.2010 at about 2:30 he visited one jhum hut belonged to Kawlthana which was nearby their labour camp. In the said jhum hut he found Kawlthana, Sangtuala, Thangruaia and Lalthakimi wife of Kawlthana. After sometimes Zonunsanga contractor’s driver also entered. Thangruaia advised the two accused to abjure their bad behaviour and follow the right path.
Accused Sangtuala then wrestled down Pu Thangruaia on the ground nearby the said jhum hut after which he was given one fist blow on his head and fearing repetition he left for their labour camp. There after Zonunsanga, Kawlthana and his wife Lalthakimi rushed towards their labour camp and called him back to return to the said jhum hut and he also found Pu Thangruaia lying on the road side under unconscious and Sangtuala said that he had already watered Pu Thangruaia. They tried to put the body of Thangruaia in the front seat of 407 manned by PW-4 as they thought it necessary to bring him back to his village but they could not as he was so heavy and they evacuated him to Kawlthana’s jhum hut. When they tried to evacuate the body of Thangruaia to the village accused Sangtuala refused and said that they would bring him back as he was like a father to them. They then rushed towards the Kawlbem village and reported about the matter to his family and when the body of Pu Thangruaia’s was found by the family lying nearby the said jhum hut covered with Mizo puan and the said jhum hut was locked from outside and Thangruaia was unconscious. As far as he knew the two accused persons are often arrested by the police as their behaviours are unbecoming to a society. As far as he knew the victim Pu Thangruaia after he was wrestled down by the accused Sangtuala, he never raised and resumed his normal work but remained under unconscious situation.
10. PW-4 Lalronunga identified the accused and stated that on 4.5.10 he brought one person Thangruaia from Kawlbem village up to their Quarry by his vehicle as he was to take fodder and in the afternoon he have seen him again lying on the road side under unconscious conditions. He found blood on left arm and back head. They tried to put him inside the seat of his vehicle but they could not keep inside his said vehicle. They then took him to a jhum hut belonged to Kawlthana. After that they sent one person called Maruata their Pick-up driver as messenger to report the incident to Kawlbem village. They then resumed their duty/work . After two or three hours since he resumed his work he got an information that Thangruaia’s body covered with Mizo puan was put nearby the said jhum hut belonging to Kawlthana under serious conditions/ unconscious. When he visited Kawlthana jhum hut he found the two accused persons.
11. PW-5 Lalremruata, Driver identified the two accused persons and stated that on 4.5.2010 afternoon he was in his duty site i.e Teikhang road to Kawlbem road and he was driving Pick UP MZ-01 B 8999. While he was in his duty site Ronunga 407 driver informed him that untoward incident took place at jhum hut of Kawlthana and one old man Thangruaia needed evacuation to his village. They then rushed towards the said hut along with Lalthlamuana by his vehicle and on reaching the said hut they found Pu Thangruaia lying on the floor of the said hut and the two accused persons informed him that Pu Thangruaia had consumed liquor and losing his conscious. Such being the situation they tried to evacuate him by his vehicle but the two accused persons objected and said that he would return to normalcy. After sometimes he brought home the labourers in Kawlbem village and they reported the incidence to Remlalliana son of the victim. On the same afternoon they visited again the PO by his vehicle by taking Remlalliana and some other persons and on reaching the PO they found the victim Thangruaia lying on the ground in front of jhum hut of Kawlthana covered with cotton yarn and he lifted the victim to his home by his vehicle after he was lifted on the body of his vehicle by the persons who followed him in connection with the said incident while he was in driver seat in driving position. When he saw the victim at the first instance he found him lying on the floor of the jhum hut in dorsal position.
12. PW-6 Lalthlamuana identified the two accused persons and stated that on the afternoon of 4.5.2010 he followed PW-No.5 who was on duty in their working site at Ngopa road as he wanted to take and empty barrel. While he was in the said place he came to know what happened in the jhum hut of accused Kawlthanzama . He followed PW-No.5 towards the PO and he found Pu Thangruaia lying on the floor of the jhum hut. They tried to bring him home but as the two accused objected by saying that the victim would recover his conscious soon they did not bring him home. On their returned to Kawlbem they reported about the matter to his relative after which PW-No.5 accompanied by some persons brought him back to his house from the PO.
13. PW-7 Lalrosanga identified the accused and stated that on 4.5.2010 afternoon PW-No.5 returned to Kawlbem from his working place by stating that he found the victim Pu Thangruaia lying on the floor of Kawlthanzama’s jhum hut. He accompanied his son Remlalliana to the PO by using vehicle belonging to PW-No.5 and on reaching the PO they found Pu Thangruaia lying on the ground which was in front of the said jhum hut and also on the road side covered with cotton yarn. Remlalliana tried to awaken him by touching his hand and as a result Pu Thangruaia said, “it is pain and hurt, A na” and he vommitted by blood. They put Pu Thangruaia in the Pick up body and they brought him to his house at Kawlbem and the victim appeared to have suffered assault and tortured. As far as he knew the victim
during his lifetime never consumed liquor abundantly or heavily and when he consumed he consumed small quantity.
14. PW-8 K.Lalnuntluanga identified the accused and stated that he belongs to Kawlbem village and the victim also belonged to Kawlbem village. The two accused persons are Ngopa Town.On the afternoon of 4.5.2010 one driver called Maruata returned home by his Pick-up from their place of working i.e Mimbung road and they reported that the victim Pu Thangruaia was unconscious due to exorbitant consumption of liquor and remain lying in the jhum hut belonging to Kawlthana one of the accused herein. Accordingly himself and Remlalliana son of the victim rushed towards the said place by Pick-up belonging to Maruata. On reaching the PO they found Pu Thangruaia lying on the road side in front of a jhum hut belonging to accused Kawlthana and the victim was covered with Mizo puan. Remlalliana son of the victim tried to awake him by touching his body and victim said that he sustained serious harm on his arm. Remlalliana move him upside down ( kuai let) and the victim oozed by blood. The victim said nothing thereafter and they put him in the said pick-up and evacuated him to Kawlbem village and the said victim appeared to suffer tortured and assault. The victim succumbed to his injury while he administered medical treatment at Civil Hospital, Aizawl. The victim was his neighbour. The victim seldom consumed liquor as he was a bit old.
15. PW-9 R.Lalpuia stated that on 6.5.2010 he accompanied their officer by visiting the PO where the victim was assaulted by the accused Sangtuala and Kawlthanzama and their party also took Lalthakimi w/o accused Kawlthanzama. In the PO, Lalthankimi traced out one white T-shirt worn by the accused persons for cleaning blood stains from the mouth of the victim from the place she thrown away. The said T-shirt was stained with blood. Case IO seized the said T-Shirt on the spot in his presence and he appeared as seizure witness. Exbt-P-2 is seizure memo. Exbt-P-2(a) is his signature. The accused Sangtuala put his signature in the said seizure memo on being identified by the accused Sangtuala himself. Exbt-M-1 is the SA.
16. PW-10 Dr.Lalrozama stated that he was medical practitioner posted in Civil Hospital, Aizawl, Department of Forensic Medicine and Toxicology. On 5 th May,2010 while he was in discharge of his official duty in Civil Hospital, Aizawl he received Police requisition for conducting Post-Mortem on one dead body and at the same time the said dead body was brought in the said hospital. The said dead body was identified by Joseph Vanlalauva ASI, Aizawl PS as the dead body of Thangruaia 60years resident of Kawlbem and accordingly he conducted post-mortem on the said dead body and after completing the said examination he recorded his findings in the prescribed form. In his opinion the cause of death was head injury (diffused extra dural, subdural and sub- arachnoid hemorrhages’ on bilateral hemispheres and base of the brain) produced by blunt force impact which was sufficient to cause death in the ordinary course of nature. PMER made by him was duly counter- signed by Medical Superintendent, Civil Hospital, Aizawl and the same was forwarded to SP, Aizawl for further necessary action. Exbt-P-3 is PMER, Exbt-P-3(a) is his signature.
17. PW-11 Joseph Vanlalauva ASI of Police stated that on 5.5.2010 he conducted inquest on the dead body of Thangruaia (60) S/o Lianchungnunga of Kawlbem in the presence of two witnesses. Exbt-P-4 is inquest report, Exbt P-4(a) is his signature. He carefully checked the front portion from head to toe but he did not check his tongue. Thereafter he made a requisition to the Medical officer, Aizawl Civil Hospital for post mortem examination. Exbt-P-5 is his requisition, Exbt-P-5(a) is his signature.
18. PW-12 Vanlalchama SI of Police identified the accused and stated that on 4.5.2010 at 9:00pm a written FIR was received from Remlalliana S/o Thangruaia of Kawlbem while he was posted at Ngopa PS to the effect that on 4.5.10 his father Thangruaia 60 years had gone to the jungle to collect grass for cattle was found lying unconscious on the road side near the jhum hut of Kawlthana of Ngopa at Phuldungsei, Mimbung road. He further stated that his father was caused grievous hurt by suspected namely Sangtuala and Kawlthanzama of Ngopa. Hence Ngopa PS case No.1/10 dt.4.5.10 u/s 326/34 IPC was registered and he investigated into the case. During the course of his investigation he visited the PO and drawn sketch map. He also arrested the two accused persons on the following day. The victim was sent to Ngopa CHC and later he was referred to Aizawl Civil Hospital and was succumbed to his injuries on 5.5.10 at about 11:45am at Aizawl Civil Hospital. He also seized one T-shirt with blood stain near the PO. Inquest and PME were conducted at Aizawl. He recorded the statements of complainant, two
accused persons and other reliable witnesses. He received injury report, inquest report and PME report during his investigation. From the above investigation he found a prima facie case u/s 302/34 IPC well established against the accused Sangtuala and Kawlthanzama and he submitted charge sheet. Exbt-P-2 is seizure memo. Exbt-P-2(a) is his signature. Exbt-M-1 is the SA, Exbt-P-6 is arrest memo in respect of accused Sangtuala. Exbt-P-6(a) is his signature. Exbt-P-7 is arrest memo in respect of accused Kawlthanzama, Exbt-P-8 is charge sheet, Exbt-P-8(a) is his signature.
19. The accused have been examined u/s 313 Cr.PC.
20. Accused Sangtuala was asked the following questions.
1) From the evidence it appeared that on 4.5.2010 at around 2:30pm they behaved improperly and the victim rebuked them and that was why they assaulted the victim Thangruaia and what he wanted to say and he replied that they took drink together with the victim and Kawlthanzama and Kawlthanzama and his wife were quarreling and his wife Lalthakimi requested the victim to help her. The victim Pu Ruaia went out to answer the call of nature and he stumbled and fell down and got up and went on and bumped on the barrel of bitumen and fell down and got up and passed urine. Kawlthanzama asked the victim not to continue the rebuke. The victim got angry and try to assault Kawlthanzama and he prevented the victim from assaulting Kawlthanzama and the victim resisted and they fell down together and the victim got up and he also got up and he punched Haudingliana who was standing by his side and Kawlthanzama also punched the victim once and the victim fell down on the road and dashed against the road. The victim could not awake and other people who were on the spot wanted to carry the victim home and he poured water on the victim and he informed them that the victim would wake and they must wait for him and as they wanted to take stones Zonuna and others went away. 2) The second question was that from the evidence it appeared that they said to Lalremruata the driver that the victim Thangruaia got drunk and that was why he fell down and whether it was true and he replied in negative. 3) He was asked that there were injuries on the head and arm and what was the reason and he replied that he did not know. 4) From the PME report it appeared that there were three injuries and the injuries were caused by them and what he wanted to say and replied in negative. 5) The accused was again asked the question that how many times the accused Kawlthanzama punched the victim and replied that Kawlthanzama did so only once and he himself did not do anything. 6) The last question was that from the evidence it appeared that the victim was put inside the jhum hut and after others went away they put him outside the hut and covered with Mizo cloth and they run away and what he wanted to say and replied that Kawlthanzama put the victim outside the hut and Kawlthanzama went towards the village and he himself went to Kawlbem village where his mother lives.
21. The accused Kawlthanzama was asked the following questions
1) From the evidence it appeared that on 4.5.2010 at around 2:30pm they behaved improperly in the jhum and the victim Thangruaia rebuked them and that was why he knocked down the victim and what he wanted to say and he replied that he got drunk and he did so. He punched the victim once and the victim fell down and sprinkled some water but the victim did not wake. 2) From the evidence it appeared that they informed others that the victim Thangruaia fell down as he was drunk and whether it was true and replied in negative. 3) He was asked the same question No 6 which was asked to accused Sangtuala and he replied in affirmative and added that they saw some persons coming in the vehicle and as they were afraid of them they run away.
22. I heard the ld PP, Addl PP and APP who submitted that from statements of the eye witnesses and evidences available on record, it was very clear that the accused assaulted the deceased on the date of the incident and that from the opinion of the medical officer who conducted PME, the injuries sustained by the victim were sufficient to cause the death in the ordinary course of nature and the injuries were caused by the accused and the prosecution proved the guilt of the accused beyond a shadow of doubt.
23. I also heard the ld counsel for defence who submitted that from the evidences it was clear that there was no any enmity between the accused and victim and the accused did not use any weapon and no weapon was seized and the prosecution did not prove the guilt of the accused.
24. PW 1, Remlalliana is the complainant, who lodged the FIR, exbt P-1 and the FIR was proved. From his statement it appears that when he reached the PO, the victim who was his father was still alive and asked his father what had happened and his father said that it was very painful and blood was oozing from the nose and vomited and could not talk anymore and evacuated to Ngopa PHC and then to Aizawl Civil Hospital and expired on 5-5-2010 at around 11.00 AM. He also stated that when he went to the PO he saw cut injury marks in the tongue and inside the mouth and cut injury marks in the right arm and back side of head. However, he was not in the PO at the time of the incident.
25. PW 10, Dr Lalrozama conducted PME and exbt P-3 is the report. From the Report there were 6 injuries. The abrasion with scab 0.5 by 0.25 cm and 0.5 by 0.5 cm over left third metacorpo phalangeal joint, swelling of left chin and lower cheek, peroidital contusion of right side, lacerated wound 2cm breath on the back of left forearm and 3cm below elbow, fracture of left radius on upper one-third and fracture dislocation of teeth and in his opinion the cause of death was head injury produced by blunt force impact which was sufficient to cause death in the ordinary course of nature. The statement of PW 1 is corroborated by the medical report to some extent. However, it appears that PW 10 did not find injury on the tongue and inside the mouth.
26. PW 2 Zonunsanga and PW 3 Haudingliana are the eye witnesses who were present at the time of the incident.
27. From the statement of PW 2, it appears that he lifted the victim on 4-5-2010 by his vehicle up to the place where the victim collected fodder and was to return to Kawlbem by the said vehicle. At around 2.30 PM he entered the jhum hut which was belonged to accused Kawhthanzama and the victim, the accused persons, Lalthakimi, wife of accused Kawlthanzama and PW 3 were already in the hut. Further it appears that at that time the accused and PW 3 took drink and the victim advised them not to indulge in taking liquor and after that the victim went out of the hut to answer the call of nature and on his return accused Sangtuala wrestled down the victim on the ground in front of the hut and after that accused Sangtuala give fist blow to PW 3m Haudingliana who was standing nearby and they took the victim towards the main road ponting to Ngopa and accused Kawlthana gave the victim a fist punch on his cheek and fell on the ground.
28. Then they went to call PW 3 and when they returned the saw the victim lying on the road side in unconscious situation and tried to evacuate the victim to the village but removed him to the said jhum hut as he was looked serious and then returned to Kawlbem village to report the incident and informed the relatives. From his cross examination it also appears that the accused had no any weapon.
29. From the statement of PW 3, Haudingliana it appears that he visited the jhum hut of accused Kawlthana on 4-5-2010 at around 2.30 PM and the accused, victim and wife of accused Kawlthana were already there and PW 2 also came in. and the victim advised the accused to abjure their bad behavour and follow the right path. Accused Sangtuala then wrestled down victim on the ground accused gave him a fist punch on his head and fearing repetition he left the PO and went to their camp. Thereafter, PW 2 and accused Kawlthana and his wife went to their came and they called him back and he saw the victim lying on the road side under unconscious and accused Sangtuala informed them that he had already watered the victim. Further it also appears that they tried to put the victim in the front seat of 407 truck but could not do as the victim was so heavy and then took him inside the jhum hut. The statement of PW 2 is corroborated by the statement of the present witness. Then they went to the Kawlbem village to inform the relatives.
30. PW 4, Lalronunga was not present at the PO at the time of the incident. From his statement it appears that on the date of incident he brought victim up to their quarry in his vehicle as the victim was to take fodder and in the afternoon he went to the PO and saw the victim lying on the road side under unconscious and also saw blood on the left arm and back head. They tried to put victim in his vehicle but could not do and put inside the jhum hut and resumed his work. The statements of PW 2 and 3 are corroborated by his statement. From his cross it appears that he did not see the accused assaulting the victim since he was not present at the time of the incident.
31. PW 5, Lalremruata is the driver of Pick-up bearing Regd No MZ-01 B 8999. From his statement it appears that in the afternoon on 4-5-2010, PW 4, driver of 407 tuck informed him the
incident and then went to the PO and saw victim lying on the floor of the jhum hut. It appears that he only saw victim after the victim had been put in the jhum and the accused informed him that the victim consumed liquor and losing his conscious. They tied to evacuate the victim in his vehicle but the accused objected by saying that victim would return to normalcy. The statement of PW 3 is corroborated by his statement. After sometime he brought some labors home in Kawlbem village and informed the incident to PW 1 and then returned to the PO by his vehicle and when they reached the PO the victim was outside the hut covered with Mizo cloth and took home the victim in his vehicle.
32. PW 6, Lalthlamuana followed PW 5 and he also stated that they tried to bring the victim home, but the accused objected by saying that he would recover his conscious soon and when they returned home they reported the matter to the relatives and the statements of PW 3 and 5 are corroborated by his statement.
33. PW 7, Lalrosanga followed PW 1 and 5 and saw victim lying on the ground covered with cloth and from his statement it appears that PW 1 touched the hand of the victim his father and the victim said that it was pain and hurt and vomited blood. And they brought victim home and the statement of PW 1 is corroborated by his statement. From his cross it also appears that when they reached the PO the accused were not there.
34. PW 8, K.Lalnuntluanga also followed PW 1 and 5 and his statement is almost similar with that of PW 7 and his statement corroborated the statements of PW 1 and 7.
35. R.Laltanpuia, PW 9 is the seizure witness of exbt M-1, T-shirt which was seized by the case IO and he identified exbt M-1 and the seizure memo exbt P-2. He stated that the T-shirt was used by accused for cleaning the blood of the victim. However, the T-shirt with blood stained was not sent to the FSL and even if there was blood stain, it was not ascertained whether the blood was human blood belonged to the victim or not.
36. ASI of Police, Joseph Vanlalawma, PW 11 conducted inquest over the death body of the victim and exbt P-5 is the report.
37. PW 12, S.I. of Police Vanlalchama is the case IO. He visited the PO and drew sketch map of the PO and during his investigation he found a prima facie case against the accused and filed the charge sheet exbt P-8. From his cross examination it appears that the deceased treated the accused as his sons.
38. From the eye-witnesses it appears that the accused did not have any weapon and there was no any enmity between the accused and the deceased before the incident and further it also appears that the accused took drink and by looking them as his sons the deceased advised them not to indulge in taking liquor and then went out to answer the call of nature and when he returned accused Sangtuala wrestled down and he had also given fist punch to Haudingliana, PW3. After that accused Kawlthana gave the deceased a fist blow on his cheek and fell down on the ground.
39. In case of Mahipal Nath v. State of Assam, 2004 Cri LJ 765 (Gau) : see also Gini Ram v. State of Haryana , 1995 Cri LJ 4168 : AIR 1995 SCC2452 : 1995 AIR SCW 3619 : Dupha Chamar V. State of Bihar, 2002 Cri LJ 3764 : 2002 AIR SCW 3217 : AIR 2002 SC 2834 : 2002 AIR Jhar HCR 956 : Mahesh Balmiki alia Munna v. State of MP, 1999 Cri LJ 4301 : (2000) 1 SCC 319 : AIR 1999 SC 3338 : 1999 AIR SCW 3334, it was held: “ In the recent case of Dhupa v. State of Bihar, 2002 AIR SCW 3217 : 2002 Cri LJ 3764, the Apex Court has considered the earlier judgments and reiterated the decision in Mahesh Balmiki, 1999 Cri LJ 4201 (SC). “Reverting to the facts of the present case, we hold that the accused appellant had no intention to kill the deceased and the incident took place at the heat of moment as both the deceased and the accused were under the influence of liquor and hence, the act of the accused does not constitute an offence under Section 300 I.P.C. However, it will be an offence as defined under Section 299 I.P.C. punishable under Part 11 of Section 304 I.P.C. Accordingly, the conviction of the accused-appellant is converted to conviction under Section 304, Part 11 I.P.C.”
40. PW 10, the Medical Officer who conducted PME opined that the injuries were sufficient to cause death in the ordinary course of nature.
41. From the statements of the eye-witnesses it appears that accused Sangtuala wrestled down the deceased and the other accused gave him a fist blow on the cheek and at the time of their examination u/s 313 Cr PC, the accused themselves also admitted. And when PW 1 and others reached the PO, the victim was still alive and when PW 1 touched his arm he could say, “It was very painful” and then vomiting and then could not talk any more.
42. In case of Purru v. State of M.P., 2004 Cri LJ 670 (Chhatisgarh) at pp 872-873, the conviction of accused, who was the person who caused the fatal injury converted into section Section 304 Part 11 and it was held: “In view of the statements, PW 1 and PW 2 were the eye-witnesses to the incident and it was proved that the accused/appellant scuffled with the deceased and assaulted him on his neck. Nothing had come in the cross examination of these witnesses which makes their statements untrustworthy. They were independent and natural witnesses. Therefore, the trial court had rightly placed reliance on the statements of these witnesses. Their statements were supported by the medical evidence also because the bone of the throat was found fracture. Therefore, it was proved that the accused/appellant was the person who caused the fatal injury on the nect of the deceased by fracturing the throat bone.”
43. In this instant case also, it has been proved that the accused are the person who caused the fatal injuries on the head and arm of the deceased and I am of the opinion that the prosecution can bring home the guilt of the accused beyond a shadow of all reasonable doubts u/s 304 Part 11 IPC and the accused are convicted accordingly.
44. I heard the ld Addl.PP and APP in regard to punishment to be awarded and they submitted that the accused caused the death of the victim and prayed to award a punishment for ten years imprisonment.
45. I also heard the ld counsel who submitted that the accused had no any weapon and prayed the court to take a lenient view.
46. I also heard the accused who prayed the court to show a mercy upon them.
47. In this instant case the accused did not used any weapon and from the eye witness it also appears that the accused Sangtuala wrestled down the victim and the accused Kawlthanzama gave him a fist punch once and the accused have been in custody from the date of arrest till date and I am of the opinion there is a sufficient ground for leniency.
48. Hence, they are sentenced to undergo RI for a period of three years each and the detention period shall be set off.
49. The seized article, vide CMR No 399 of 2010 shall be destroyed.
Sd/- K.L.LIANA Additional District & Sessions Judge-I. Aizawl Memo No. ADSJ/ Dated Aizawl the 30 th May., 2012. Copy to :- 1. Accused Sangtuala C/o L. H.Lianhrima,Advocate. 2. Accused Kawlthanzama C/o LH Lianhrima, Advocate. 3. Public Prosecutor, 4. District & Sessions Judge 5. DSP, Prosecution 6. O/C Ngopa, P/S 7. i/c Registration. 9. Case record. 10. Guard file
PESHKAR