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2004 DIGILAW 178 (GAU)

Hari Krishna SuriZ v. State of Assam

2004-03-12

I.A.ANSARI, P.G.AGARWAL

body2004
JUDGMENT I.A. Ansari, J. 1. This Jail appeal is directed against the judgment and order, dated 8.9.98 passed by the learned Sessions Judge, Sibsagar, in Session Case No. 106 (S-S)/97, whereby, the accused-Appellant, Hari Krishna Suri, was convicted under Section 302 IPC and sentenced him to suffer imprisonment for life and also to pay a fine of Rs. 2000/- in default, to suffer imprisonment for 6 months. 2. The matter relates to killing of one Romesh Karmakar, on 19.7.97, at Line No. 3 of Santak Tea Estate. The deceased was found lying dead in front of the house of the accused-Appellant, Hari Krishna Suri, whereupon, an FIR was lodged alleging that the accused Appellant has caused the death of the deceased. The accused Appellant was tried in Session Case No. 106 (S-S)/97 and on conclusion of the trial, the learned Sessions Judge convicted him under Section 302 IPC and sentenced him to undergo imprisonment for life and also to pay a fine of Rs. 2000/-, in default, further imprisonment of 6 months. 3. In the present case, the death of the deceased, as a result of the injuries sustained, was never challenged and, thus, is not in dispute before us. 4. P.W. 4 Dr. Ranjit Gogoi, who conducted the postmortem examination over the deadbody, found the following injuries: Wounds: 1) A skin cut injury over the right cheek extending from the angle of the mouth upto the right ear lobe. Whole skin is thick, averted exposing the oral cavity. 2) Both the legs were cut at the mid-calf region. Distal parts attached with a thin flap of skin. 3) A clean cut injury below the chin, size-3 cms x 1 1/2cms x 1cm. 4) A clean cut injury of the size-7 cms x 5 cms. Obliquely placed in the left groin pointing towards umbilicus. The under lying hip bone is cut along the external wound directing to a depth of 5 cms. Abdominal cavity opens through the wound. 5) Right index finger is chopped off at the root. 6) A clean cut injury, transversely placed at the anterior side of the left elbow joint of the size 3 cmsx2 cmsx1 cm. 5. The under lying hip bone is cut along the external wound directing to a depth of 5 cms. Abdominal cavity opens through the wound. 5) Right index finger is chopped off at the root. 6) A clean cut injury, transversely placed at the anterior side of the left elbow joint of the size 3 cmsx2 cmsx1 cm. 5. In the opinion of the doctor, the death was due to shock and haemorrhage resulting from the antemortem and homicidal injuries, which are caused by sharp cutting weapon, like 'axe' and the injuries were sufficient to cause death in the ordinary course of the nature. 6. In this case, the prosecution has not examined any eye witness, P.W. 1, P.W. 2 and P.W. 3 all arrived at the scene of occurrence subsequently and found the deceased lying in an injured condition in a pool of blood. P.W. 4 is the doctor and P.W. 5 is the Investigating Officer. In this case, we find that the learned trial Court has recorded the finding of guilt on the basis of the following circumstances: 1) P.W. 2 Sutu Karmakar claims that one Premlal Goala reported him. Although the latter was not examined, the Court held that there is probative force in his evidence. 2) P.W. 3 Noresh Talukdar is a neighbour, who heard hulla 'Katiley' 'Katiley' but he did not come out. 3) The accused had surrendered before the police 4) The weapon of assault was bound with the accused 5) The accused had admitted his guilt in the statement made under Section313 Code of Criminal Procedure 7. So far the circumstances i.e. (1) and (2) made in the paragraph 11 of the judgment are concerned, less say is better. Hearsay is not at all admissible and there cannot be any probative value of such evidence. The fact that the accused had appeared at the police Station with a dao (Mat. Ex. 1), even if established, cannot lead to a conclusion that the accused Appellant had killed the deceased as the statement of the accused Appellant made before the police is not admissible in evidence. 8. Now coming to the admission of the accused in the statement made under Section 313 Code of Criminal Procedure, the accused Appellant has categorically stated that as the deceased was committing rape on his wife, Raimoni Suri, he hacked the deceased with an axe. 8. Now coming to the admission of the accused in the statement made under Section 313 Code of Criminal Procedure, the accused Appellant has categorically stated that as the deceased was committing rape on his wife, Raimoni Suri, he hacked the deceased with an axe. The accused Appellant has also examined his wife, Raimoni Suri, as DW 1, wherein, she has stated that, at the time of the accident, while she was urinating in front of the house, the deceased caught hold of her and forcibly committed rape on her. She raised alarm and her husband (accused Appellant) was sleeping inside the house, he came out and assaulted the deceased, while the latter was still mounting on her. This witness has not been cross- examined, except giving a mere suggestion to the effect that the deceased did not rape her (D.W. 1 wife of the accused Appellant). The prosecution has failed to discredit her testimony. It may be mentioned herein that the evidence of a defence witness is also to be treated and examined alike as that of the prosecution witness and it cannot be thrown out, simply, on the ground that it is a defence witness. This defence witness, Raimoni, was cited by police as a prosecution witness in the chargesheet, but she was not examined. The statement of D.W. 1 supports the admission of the accused Appellant in the statement made under Section 313Code of Criminal Procedure we also find that the accident took place in the Courtyard of the accused Appellant and in her examination, she (D.W. 1) has stated that the deceased was lying in front of the house of the accused Appellant and the occurrence took place at about 9.10 p.m. 9. The learned Counsel submits that the accused Appellant has acted on grave and sudden provocation, when he saw that the deceased consisting rape on his (accused Appellant's) wife and, as such, the act of the accused Appellant is covered under Exception 1 to Section 300 IPC. We find sufficient force in the submission of the learned Counsel for the Appellant and accordingly, we hold that the act of the accused Appellant amounts to culpable homicide not amounting to murder. 10. In the result, we modify the conviction of the accused-Appellant to one under Section 304 Pt. II of IPC. We find sufficient force in the submission of the learned Counsel for the Appellant and accordingly, we hold that the act of the accused Appellant amounts to culpable homicide not amounting to murder. 10. In the result, we modify the conviction of the accused-Appellant to one under Section 304 Pt. II of IPC. It is submitted that the accused Appellant is in jail custody since 20.7.97 i.e., nearly 7 years. We, therefore, sentence the accused to undergo imprisonment for the period already undergone by him. He be released forthwith, if not wanted with any other cases. 11. With the above modification, this Jail appeal shall stand disposed of.