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2007 DIGILAW 223 (GAU)

Kusumbar Buragohain v. State of Assam

2007-03-19

AFTAB H.SAIKIA, H.N.SARMA

body2007
JUDGMENT A.H. Saikia, J. 1. Heard Mr. T.R. Sarma, learned Counsel appointed as Amicus Curiae by this Court today itself as Mr. T. Dhar, learned Counsel earlier appointed as Amicus Curiae is found to be absent when the matter is taken up for final hearing though his name has been duly reflected on the board of the cause list for hearing commencing from 05.03.2007 to 23.04.2007. 2. Also heard Mr. B.B. Gogoi, learned P.P, Assam. 3. This jail appeal has been directed against the judgment and order dated 05.01.2000 passed by the learned Sessions Judge, Tinsukia in Sessions Case No. 88(T)/99 convicting the appellant under Section 302 IPC and thereby sentencing him to undergo imprisonment for life with a fine of Rs.500/- in default further R.I. for two months. 4. On the basis of an FIR lodged by P.W.-1 Shri Guna Kanta Buragohain with the Officer-in-charge, Sadia Police Station, Chapakhowa on 14.05.99 wherein it was alleged that his elder brother Shri Kusumbar Buragohain, the appellant, killed his wife Aikon Buragohain hitting her with an axe, investigation ensued and police submitted chargesheet against the appellant under Section 302 IPC. 5. During trial before the learned Sessions Judge, Tinsukia, to whom the case, being exclusively triable by the Court of Sessions, was committed by the concerned Magistrate Court, the prosecution examined as many as 8 witnesses including P.W.-8, Dr. Rupam Borkakati who held the postmortem on the body of the deceased Aikon Buragohain and P.W.-7, Mr. Chandan Mili, the Investigating Officer. The relevant documents including the inquest report and seizure list being exhibited as Exhibit 2 and 3 respectively were also examined. 6. On appreciation of the materials available on record both oral and documentary and also upon hearing the learned Counsel for the parties, the trial Court found the appellant guilty of the offence under Section 302 IPC and convicted and sentenced him accordingly as mentioned above. 7. Hence this appeal. 8. It is an admitted fact that there was no eye witness to the occurrence. The entire conviction was based on the circumstantial evidence as well as extrajudicial confession of the appellant who also on his examination under Section 313 Cr.P.C. admitted the commission of offence of killing his wife by an axe which was handed over by himself to the police. 9. The entire conviction was based on the circumstantial evidence as well as extrajudicial confession of the appellant who also on his examination under Section 313 Cr.P.C. admitted the commission of offence of killing his wife by an axe which was handed over by himself to the police. 9. On meticulous examination of the testimony of the witnesses particularly, P.Ws 2, 3, 4, 5, 6 and 7, we have categorically noticed that all the witnesses corroborated without any iota of contradiction or inconsistency to the fact that the appellant himself told them that he killed his wife by an axe and he also came out from nearby, the jungle. It was also fortified that the axe, weapon used for killing, was also handed over to the Investigating Officer P.W-7. Shri Chandan Mili, Investigating Officer deposed that while he conducted the inquest over the dead body of deceased Aikon Buragohain, the appellant came out from the nearby jungle and told him that he killed his wife with an axe and then handed over the axe to him and he was arrested immediately. 10. Coming to the examination of the appellant under Section 313 Cr.P.C., it appears that the appellant himself stated that he killed his wife and the reasons cited by him under such examination was that one Pradip Gogoi told him that he would touch his wife which gesture was objected by him. Even his wife told the appellant that she enjoyed sleeping with Pradip. That on another day one Soneswar Gogoi also came to him and told that he wanted to touch his wife. Those circumstances gave rise to suspicion into mind of the appellant who on the day of occurrence in the morning asked his wife to declare by touching "Bhagawat Gita", a holy book, that she was a chaste woman but instead of saying anything she threw the said book which made him angry and out of sudden anger he hit his wife with an axe. 11. In medical examination P.W-8 who taken autopsy on the dead body found the following injuries: Depressed fracture on right side of the chest. Chest ribs fractured. Bruises seen on right side of the chest measuring 3" x 1". Granium and Spinal Canal:--Skin out injury on the frontal part of the scalp measuring On dissection internal haemorrhage with clotted blood seen on the brain. Thorax"- 5th, 6th and 7th ribs fractured. Chest ribs fractured. Bruises seen on right side of the chest measuring 3" x 1". Granium and Spinal Canal:--Skin out injury on the frontal part of the scalp measuring On dissection internal haemorrhage with clotted blood seen on the brain. Thorax"- 5th, 6th and 7th ribs fractured. Others healthy. 12. Doctor in his examination-in-chief opined that the death was due to cardiopulmonary failure on account of head injuries which were caused by blunt force impact. It was further opined that from the nature of injuries it would be said that the weapon used was heavy and blunt. According to him blunt side of an axe would cause such an injury. 13. The deposition of the witnesses above mentioned including the medical evidence clearly indicates that the appellant struck the fatal injury on the head due to sudden anger. 14. In the backdrop of the evidence as appreciated, this Court is of the considered view that there is no strong and compelling reason to disbelieve the prosecution case regarding hitting of the deceased by the appellant. 15. Now the question which have been arisen for consideration is to whether the appellant can be convicted under Section 302 IPC on the basis of the facts and circumstances as narrated by the witnesses as well as by the appellant himself under Section 313 Cr.P.C. We have found from the evidence that the appellant confessed about the killing of his wife before the witnesses including the Investigating Officer and such confession can easily be said to be extrajudicial confession. It is settled law that extrajudicial confessions is an established evidence however, such evidence cannot be based for conviction and it can be established only if the nature of such confession is well corroborated and supplemented by the other testimony of the witnesses. 16. At this stage, Mr. Sarma, learned Amicus Curiae has contended that it is the evident that the appellant struck the deadly blow to his wife due to anger and sudden provocation when his wife said that she enjoyed with Pradeep by sleeping. On the other hand one Soneswar, according to learned Amicus Curiae also told the appellant that he would like to touch his wife. More importantly the appellant was provoked with sudden impulse immediately by his wife while she threw the "Bhagawat Gita", a holy book, which was put to her to declare that she was a chaste woman. On the other hand one Soneswar, according to learned Amicus Curiae also told the appellant that he would like to touch his wife. More importantly the appellant was provoked with sudden impulse immediately by his wife while she threw the "Bhagawat Gita", a holy book, which was put to her to declare that she was a chaste woman. On such behaviour and conduct of his wife by spur of moment and sudden impulse the appellant lost his patient and as a result struck the fatal blow on her head with an axe. 17. In view of such, according to Mr. Sarma, it is not a case for conviction of the appellant under Section 302 IPC but a case of Section 304(II) IPC attracting the Exception No. 1 to Section 300 IPC. 18. Per contra, Mr. Gogoi, learned P.P, Assam has submitted that the prosecution successfully established the case against the appellant under Section 302 IPC and considering the heinous crime for killing his wife in a cold blood as emerged from the prosecution evidence, the appellant deserves no leniency in punishment and the learned Sessions Judge was wholly justified in sentencing him to undergo rigorous imprisonment for life under Section 302 IPC. 19. Now let us discuss as to whether in the facts and circumstances of the case, as emerged from the above discussion, it is case for conviction under Section 302 IPC or 304(II) IPC. It is admitted that the appellant acted to commit the offence due to anger and sudden provocation when his wife threw the "Bhagawat Gita" when the same was placed on her in order to prove her chastity while his wife confessed with a recalcitrant attitude that she enjoyed sleeping with Pradeep. It is also noticed that save and except such reason, there was no evidence to show the cause to kill his wife by the appellant and such act, according to us, was committed due to grave and sudden provocation. It has came from the medical evidence that the injury inflicted upon the deceased was by blunt weapon as the Doctor categorically opined that blunt side of the axe was used for inflicting such injury. Such medical evidence would clearly go to show that there was no intention of the appellant to kill his wife. It has came from the medical evidence that the injury inflicted upon the deceased was by blunt weapon as the Doctor categorically opined that blunt side of the axe was used for inflicting such injury. Such medical evidence would clearly go to show that there was no intention of the appellant to kill his wife. Had there been any ill motive to kill his wife, easily he could have used the sharp side of the axe instead of blunt side. 20. For the sake of convenience, the provision of Section 300 IPC with its Exception I may be noticed as tinder: Section 300 Except in the cases hereinafter excepted culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- 2ndly-- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or- 3rdly-- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary Course of nature to cause death, or- 4thly.-- If the person committing the act knows that if it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception: 1-- Culpable homicide is not murder if the offender, whilst deprived of the power of self- control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other persons by mistake or accident. 21. In the case at hand, from meticulous analysis of the facts premises as evidenced by the prosecution case, there is no second opinion that the act of killing of his wife was committed by the appellant having been deprived of self control by grave and sudden provocation and as such the same is attracted by Exception 1 to Section 300 IPC. 22. 22. In view of what has been discussed, observed and stated above, we are of the considered opinion that the conviction of the appellant under Section 320 IPC cannot be sustained and it ought to have been under Section 304 part-II IPC. 23. Accordingly, we do order that the conviction of the appellant be reduced to under Section 304part-II and sentence him to the period already undergone. It is stated at the Bar that the appellant was arrested on 04.05.99 and since then he has been in confinement till date. 24. The appellant be set free forthwith if not wanted in any other case. 25. In the result, appeal stands allowed to the extent as indicated above. Send down the L.C.R. 26. Before parting with the judgment, we would like to put on record the appreciation for Mr. Sarma for his valuable help and assistance as Amicus Curiae in deciding this appeal which has been filed by the appellant from the jail. Accordingly, Mr. Sarma shall be entitled for his professional fee of Rs.2,500/-. Appeal allowed.