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2007 DIGILAW 400 (GAU)

Maheswar Majhi v. State of Assam

2007-06-05

AFTAB H.SAIKIA, R.B.MISRA

body2007
Aftab H. Saikia, J 1. Heard Mr. T.J. Mahanta, learned counsel who has been appointed as amicus curiae in place of Mrs. Nandita Moral, as the said appointed amicus curie is found to be absent when the matter is called upon for hearing. 2. Also heard Mr. K.C. Mahanta, learned P.P, Assam representing the State. 3. The appellant faced the trial for commission of an offence under section 302, IPC pertaining to the killing of his father Harua Majhi. 4. The trial court, having appreciated the material evidence of as many as 7 witnesses so produced by the prosecution, found the appellant guilty of the offence under section 302, IPC and accordingly sentenced him to undergo Rigorous Imprisonment ('the R.I.') for life with a fine of Rs. 1,000 in default to further R.I. for another 6 months by passing its judgment and order dated 19.3.2002 in Sessions Case No. 88(S-C) 2001. 5. The prosecution case in brief may be noticed. On 12.9.1997 in the night, the appellant murdered his father Harua Majhi ('the deceased') by assaulting him with an Axe. The deceased's other son and brother of the appellant Bishnu Majhi P.W-1 lodged the ejahar with the concerned Police station having been written by one Rupeswar Gogoi, P.W-2, Goan Burah on 13.9.1997. 6. On the basis of such FIR, the investigation ensued and the dead body of the deceased was sent to post mortem examination to be conducted by P.W-4 Dr. Anil Sarma. 7. On 13.9.1997 the appellant himself surrendered before the concerned Police Station and he was arrested on 14.9.1997 and sent to custodial detention. 8. It has come on record that the appellant-petitioner was released on bail on 16.12.1997 after completion of three months of statutory period of detention. During the trial before the learned Sessions Judge, the appellant was while on bail, found to be absent for which non bailable warrant of arrest was issued against the appellant on 18.4.2001 and the same was executed on 23.5.2001 and thereafter he was sent to custodial detention and meanwhile the abovementioned conviction and sentence was handed down to him by the impugned judgment on 19.3.2002.Consequently he has been put in incarceration till date. 9. We have meticulously scrutinized the testimony of all the 7 witnesses including the P.W-4, the Doctor, Anil Sarma who conducted autopsy of the deceased and P.W-7 the Investigating Officer ('the I.O.'). 10. 9. We have meticulously scrutinized the testimony of all the 7 witnesses including the P.W-4, the Doctor, Anil Sarma who conducted autopsy of the deceased and P.W-7 the Investigating Officer ('the I.O.'). 10. P.W-1, Bishnu Majhi, the informant, in his deposition stated that the accused Maheswar Majhi was his brother and deceased was his father and one day at about 4 years back, the appellant along with his wife went to his house and told him that he killed his father-the deceased and then the appellant went to the Police station. Then this witness informed the Goan Burahs, i.e., P.W-2 and P.W-3 as according to him, there were two Goan Burahs-one was P.W-2, Shri Rupeswar Gogoi and other was P.W-3 Shri Chandra Kanta Gogoi. He lodged an Ejahar written by P.W-2, Shri Rupeswar Gogoi. In cross-examination this witness claimed that they were not in good term with their father. Even the deceased used to quarrel with him and the accused. Their father was addicted to smoking and drinking. This witness deposed that he had separated from his father since last five years. He stated that they had regular quarrel with their father. He also deposed in his cross-examination that the deceased*used to abuse to the wife of the appellant. Around 4 a.m. on that day the accused and his wife informed him about the occurrence by coming to his house. 11. P.W-2, Shri Rupeswar Gogoi, the Scribe of the Ejahar, told that at about 6 a.m on 13.9.1997 the accused's elder brother Bishnu P.W-1 went to his house and told him that the accused killed his father-the deceased. Having had his bath and tea, he went to the house of the accused accompanied by another Goan Burah Chandra Kt. Gogoi, P.W-3 and found the-door of the accused-appellant under lock. The wife of the appellant unlocked the door and from the doorstep he along with P.W-3 saw that the deceased was lying on a bamboo mat. According to this witness it was Chandra Kanta Gogoi who wrote the ejahar. They found an axe lying at about 2/3 cubits away from the dead body. The police seized the axe in presence of him. In cross-examination this witness testified that the deceased asked Bishnu P.W-1 and the appellant to give 2 bighas of land to his nepTiew but they had no intention to give such land to him. They found an axe lying at about 2/3 cubits away from the dead body. The police seized the axe in presence of him. In cross-examination this witness testified that the deceased asked Bishnu P.W-1 and the appellant to give 2 bighas of land to his nepTiew but they had no intention to give such land to him. He also claimed that he was not sure whether the material Exhibit-1 was seized or not as it was seized long back. 12. P.W-3, SVvri Chandra Nattv Gogoi also narrated the same story so placed on record by P.W-2. He did not mention about the writing of the FIR at the instance of Bishnu Majhi P.W-1 as asserted by P.W-2. 13. P.W-5, Mrs. Lakhimani Majhi, was the wife of the appellant. Her story is that at the time of occurrence at night she went to the house of Gana Gogoi for enjoying a movie in the television but when she returned she found the door of her house was locked for which she went to the house of her "Borjona" (elder brother of her husband) and spent the night there and around 4 a.m. the appellant went to the house of the Bishnu P.W-1 and told him that he killed the old man. They came home and found the dead body of the deceased. 14. There is nothing to be noticed in the evidence of P.W-6, Sri Mongia Tanti so examined by the prosecution. This witness simply stated that on the day of occurrence in the morning after the incident he could know that the deceased died and on coming to the deceased house he saw the deceased was lying dead in the front room. 15. From the critical analysis of the above deposition, we find that the same does not inspire the confidence to believe that the evidence of these witnesses was reliable and trustworthy to convict the appellant for killing of his father-the deceased. Admittedly, there was no eye witness to the occurrence, save and except the extra judicial confession claimed to have been made to P.W-1 by the appellant which was not corroborated by any of the witnesses. Even the evidence of the wife of P.W-5 found to be not trustworthy and believable. Admittedly, there was no eye witness to the occurrence, save and except the extra judicial confession claimed to have been made to P.W-1 by the appellant which was not corroborated by any of the witnesses. Even the evidence of the wife of P.W-5 found to be not trustworthy and believable. Her conduct to the fact as per her own deposition, that when she returned to her house after enjoying movie she found her house under lock and without making any attempt to enquire about of locking of the door of her house, simply she went to the house of "Barjona" and stayed there for night and it was only at about 4 a.m. the appellant went to the house of P.W-1 to tell about the killing of the old man, smacks doubt as regards the credibility and genuineness of this witness. 16. Now let us have a close scrutiny of the evidence of Dr. P.W-4. According to him, he found the following injuries on the dead body" of the deceased : "External injuries: - 1. Defused swelling over left tempo-paraital region. 2. Defused swelling over left cheek. 3 Defused swelling over back of chest scapular region. Cranium and Spinal Canal. Sclap : As described in external injury No. 1. Skull : Crack fracture of left temporal and parital bone. Membrance congested and lacerated over left tempor-parital region. There is effusion of blood in between biamatter and brain substances which compressed the brain.". 17. Doctor opined that that the death was due to coma, as a result of head injury sustained by the deceased. 18. The I.O., P.W-7 deposed that on 13.9.1997 the accused himself appeared before the Police station stating that he killed his father the deceased by striking with an axe. 19. It is seen from the evidence on record, that all the witnesses deposed that an axe was used for killing the deceased as claimed by the deceased himself in making extra judicial confession particulary to P.W-1. Contrary to such evidence, medical evidence did not disclose any such injury to be caused by any sharp weapon like an axe. 20. 19. It is seen from the evidence on record, that all the witnesses deposed that an axe was used for killing the deceased as claimed by the deceased himself in making extra judicial confession particulary to P.W-1. Contrary to such evidence, medical evidence did not disclose any such injury to be caused by any sharp weapon like an axe. 20. Having gone through the Medical evidence so reflected in the medical evidence it is found that there were 3 injuries which were declared to be defused swelling but if the story of killing of the deceased by an axe is to be believed, there were no incised injuries found over the person of the dead body. Even the Doctor did not opine regarding the use of any sharp weapon to cause such injuries. 21. Besides the accused in his statement recorded under section 313, Cr.PC against the question No. 10 made the statement that on the day of occurrence the deceased raised an uproar in the house after getting drunk. Being a father/when he tried to beat the appellant by taking a lathi, the accused came outside and upon finding an axe, he hit the deceased on his cheek and head. According to him, he hit his father only once. Thereafter the deceased asked for water and he gave water. He also poured a little water to the head of the deceased. Drinking a little water again he died at 6 a.m. He pleaded that he did not strike his father to kill him. 22. Keeping in mind this statement made by the appellant under section 313, Cr.PC as well as having gone through the Medical evidence including the testimony of the other witnesses, it appears that that the appellant might have struck the blow due to sudden provocation as his father intended to hit, by lathi, being under the influence of liquor. It has also come on the evidence that the deceased had a habit of drinking and smoking. 23. Insofar as the making of extra judicial confession by the appellant to P.W-1 is concerned, the same has failed to pursuade us to approve that the appellant had ever stated such fact of killing of his father to Bishnu, P.W-1. Such extra judicial confession did not find a support from any other witnesses. 24. 23. Insofar as the making of extra judicial confession by the appellant to P.W-1 is concerned, the same has failed to pursuade us to approve that the appellant had ever stated such fact of killing of his father to Bishnu, P.W-1. Such extra judicial confession did not find a support from any other witnesses. 24. It is established that extra judicial confession is a very weak piece of evidence and is hardly of any consequence. In the instant case, the manner in which extra judicial confession was alleged to have been made rendered it unsafe to rely upon such statement. Even such extra judicial confession was not supported by medical evidence and other evidence was also inconclusive in this regard. 25. In view of the above, having considered such fact situation, we are of the considered view that the conviction under section 302, IPC cannot be sustained. Contrary the appellant as it appears, was protected by Exception No. 1 of section 300, IPC as he appeared to have deprived of his power of self control by sudden provocation and caused the death of his father without any intention. 26. Accordingly we have no hesitation to convert his conviction to one under section 304, Part II, IPC. It is ordered accordingly. The appellant is sentenced to the period already undergone as indicated herein above. 27. Appellant be set at liberty forthwith, if he is no way connected with any other criminal case. 28. Before parting with the judgment, we would like to put on record our appreciation to Mr. T.J. Mahanta, the learned appointed amicus curiae for his valuable help and assistance rendered to arrive at a decision in this jail appeal and accordingly, it is ordered that he is entitled to get his professional fee which is quantified at Rs. 3,000. 29. At this stage Mr. Mahanta, in his usual fairness, has submitted that the amount abovementioned be deposited to the High Court Legal Aid Fund. We ordered accordingly. 30. In the result, this appeal stands allowed. 31. LCR be sent down immediately.