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2007 DIGILAW 498 (GAU)

Tazel S. K. v. State of Assam

2007-08-01

AFTAB H.SAIKIA, T.NANDAKUMAR SINGH

body2007
JUDGMENT Aftab H. Saikia, J. 1. Heard Mrs. A. Devi, learned Counsel appointed amicus curiae appearing for the Appellant as well as Mr. D. Das, learned Public Prosecutor, Assam. 2. The Appellant from jail has moved this Court by filing the present Criminal Appeal No. 61(J)/03 challenging his conviction under Section 302, IPC and sentence to suffer Rigorous Imprisonment for life and a fine of Rs. 2000 in default to further Rigorous Imprisonment for one year so imposed upon him by the learned Sessions Judge, Dhubri by his judgment and order dated 30.6.2003 passed in Sessions Case No. 63/2001. 3. The fact in a short compass as projected by the prosecution is that, an ejahar was lodged by one Md. Feku Sk (since dead) with the Officer-in-charge, Golokganj Police Station on 21.4.1999 alleging therein that his younger daughter Late Turi Bibi alias Moina Bibi came to his house a long time back and since then she was living at his house with his son-in-law, Tazel Skand while staying at his house, she gave birth to a baby who was two months old at that time. Around 3.00 am on 21.4.1999 while his daughter was sleeping in the same house, his son-in-law Tazel Sk killed her by striking her with a sharp weapon in the neck and then fled the scene. 4. Charge sheet had been filed by the Police on completion of the investigation under Section 302, IPC against the Appellant. The trial was initiated against the Appellant before the learned Sessions Judge, Dhubri, who on proper examination of the material evidence on record including the depositions of as many as 7(seven) witnesses convicted and sentenced the Appellant as mentioned above. 5. The medical evidence of PW-7, Dr. Anukul Ch. Mondal, who examined to dead body of the late Turi Bibi alias Moina Bibi (wife of the Appellant) would clearly go to show that only one single blow was inflicted in the neck of the deceased as mentioned in the ejahar. In the opinion of Doctor, the dead was caused due to shock and haemorrhage as a result of cut throat wound sustained by the deceased. The following injuries found in the Doctor's evidence: A cut wound size 5 cm x 3 cm was present over the neck 2 cm below the thyroid cartilage directs obliquely from midline to right upwards. Margins are sharp and clean cut. Base is erythemotous. The following injuries found in the Doctor's evidence: A cut wound size 5 cm x 3 cm was present over the neck 2 cm below the thyroid cartilage directs obliquely from midline to right upwards. Margins are sharp and clean cut. Base is erythemotous. Oozing of blood present from the wound. On exploration of the would right carotic artery was seen cut. 6. The evidence of PW-1, Asiron Bewa would also clearly indicate that when she came out from her house in order to answer to the call of nature, her sister Turi Bibi (deceased) came running from the out side with bleeding injury in her neck and held her in her arms and when she asked her as to what happened, she could not speak anything due to her neck injury and at that moment, the Appellant Tazel SK was running away from his house. Seeing such injury condition of Turi Bibi she called her father Feku SK, (who already died before the commencement of the trial) and at her call, Feku SK came near them. PW-1 also deposed that she saw a dagger in the hands of the Appellant at the time of his running away from their house. Thereafter within a short while her sister Turi Bibi succumbed to her injuries near the door of their house. This incident was also narrated by PW-2 (Jabed Ali), who stated that at about 3.30 a.m. Feku SK called him by knocking the door of his house and when he came out, then Feku SK told him that his daughter Turi Bibi had been murdered by her husband Tazel and when he came with Feku to his house, he found that Turi was lying dead on the veranda of her house. 7. PW-3 (Babu SK alias Sahed Ali) also in his deposition clearly stated that when he went to the house of Feku on his information at night at about 2.30/3 a.m he found Turi Bibi was lying in injured condition in the courtyard of the house. Other witnesses, i.e., PW-4 (Dildar Ali) also testified the said occurrence in the same tune of the earlier witnesses mentioned above. 8. Other witnesses, i.e., PW-4 (Dildar Ali) also testified the said occurrence in the same tune of the earlier witnesses mentioned above. 8. Having meticulously examined the entire deposition of the witnesses, it is seen that admittedly Turi Bibi was killed by her husband Tazel SK by inflicting one single blow on her neck and from the careful scrutiny of the testimony of all the witnesses, we have no hesitation to hold that it was the Appellant Tazel SK who caused injury to his wife resulting in her death. 9. We have also analyzed the conduct of the Appellant. The Appellant was seen by PW-1 (Asiron Bewa) running with a dagger in his hands at the dead of night. There was no explanation as why at midnight he was running with the dagger while his wife was profusely bleeding with injury in her neck and fell down in the courtyard. It has also been noticed from the record that the Appellant was absconding at least for one month after the incident which occurred on 21.4.1999 and surrendered before the Police only on 20.5.1999. However, on 7.8.1999 he was granted bail and remained on bail till his conviction pronounced on 30.6.2003. 10. In view of above, going by the evidence of the witnesses adduced by the prosecution, we are not inclined to interfere with the finding of facts entertained by the learned Sessions Judge, Dhubri. 11. However, we find some force in the submission of Ms. A. Devi, learned amicus curiae to the effect that the alleged offence so committed by the Appellant may not com£ within the purview of Section 302, IPC. It is contended that since both husband and wife were of the habit of quarrelling frequently which has come on evidence, there might be certain provocation which resulted in taking such action by the Appellant to hit his wife with the dagger and that too by giving only one blow which has resulted the death of the deceased. According to Ms. A. Devi, the facts and circumstances of the case if taken into account in its entirety, would go to show that the offence committed by the Appellant would be of under Section 304, Part-I, IPC. According to Ms. A. Devi, the facts and circumstances of the case if taken into account in its entirety, would go to show that the offence committed by the Appellant would be of under Section 304, Part-I, IPC. It is convincingly proved that there was only one fatal injury on the neck of the deceased and in view of the same, we are of the firm opinion that by thrusting only one blow by the Appellant on the person of the deceased, the Appellant certainly would have the knowledge that such his action would result of the death of the deceased. 12. In view of above discussions and also on consideration of the contentions made by the learned amicus curiae, we are convinced that the offence should under the purview of Section 304, Part-I, IPC, and we therefore, set aside the conviction of the Appellant under Section 302, IPC and hold him guilty of the offence under Section 304, Part-I, IPC. The custodial sentence of 8 (eight) years would meet the ends of justice. The appeal stands allowed partly to the extent of modification of sentence as indicated above. 13. In support of our above decision, we may refer to the decisions of the Apex Court in (1) Thangaiya v. State of Tamil Nadu AIR 2005 SC 1142 ; (2) V. Subramani v. State of Tamil Nadu AIR 2005 SC 1983 ; (3) Jeet Singh v. State of Haryana (2005) 11 SCC 597 and (4) Jasram v. State of M.P. (2005) 12 SCC 176. 14. In Thangaiya's case (supra) in Para 22 the Supreme Court has observed as under: 22. Keeping the aforesaid legal principles in view, the factual position is to be examined. It cannot be said as a rule of universal application that whenever one blow is given Section 302, IPC is ruled out. It would depend upon the facts of each case. The weapon used, size of the weapon, place where the assault took place, background acts leading to the assault, part of the body where the blow was given are some of the factors to be considered. In the instant case admittedly one blow was given with a small stick, and the place where the assault took place was dimly lit. Inevitable conclusion is that the case is covered by Section 304, Part-I, IPC and not Section 302, IPC. The conviction is accordingly altered. In the instant case admittedly one blow was given with a small stick, and the place where the assault took place was dimly lit. Inevitable conclusion is that the case is covered by Section 304, Part-I, IPC and not Section 302, IPC. The conviction is accordingly altered. Custodial sentence of 10 years would meet the ends of Justice. 15. The Supreme Court in V. Subramani's case (supra) in Para-19 ruled as under: 19. Considering the background facts as highlighted above when tested in the backdrop of the legal principles noted supra the inevitable conclusion is that the accused persons had not established that they were exercising right of private defence. The residual plea is that only a single blow was given by a wooden yoke of very light weight. Though it cannot be laid down as a rule of universal application that whenever death occurs on account of a single blow, Section 302, IPC is ruled out, the fact-situation has to be considered in each case. It appears from the records, as noted above, that a single blow was given on the head of the deceased by a small wooden yoke. Considering the background facts as noted above, it would be proper to alter the conviction from Section 302, IPC to Section 304, Part-I, IPC. Custodial sentence of 10 years would meet the ends of justice. 16. In Jeet Singh's case (supra) in Para-4 it was held as under: 4. Going by the evidence adduced by the prosecution, we are not inclined to interfere with the findings of fact entered by the Sessions Judge and the High Court. However, we find some force in the contention urged by the Appellant's counsel that the offence, if any, committed by the Appellant may not come within the purview of Section 302, IPC. It is pointed out that there was no previous quarrel or enmity between the Appellant and the deceased and the quarrel had suddenly taken place due to the fact that the deceased Bawa Singh drove the tractor through his field and the sudden quarrel ensured because of the conduct of the deceased. It is also pointed out that the Appellant was having a weapon with him and we gave only one blow which unfortunately had resulted in the death of the deceased. It is also pointed out that the Appellant was having a weapon with him and we gave only one blow which unfortunately had resulted in the death of the deceased. It is considered by the Appellant's counsel that the offence would come within the ambit of Section 304, Para-I, IPC. It is true that there is only one fatal injury on the head of the deceased. The Appellant must have inflicted a blow on the head of the deceased because of the quarrel between the two. The Appellant certainly would have knowledge that his act would result in the death of the deceased. Hence, the offence comes under the purview of Section 304, Part-I of the Indian Penal Code and hence we set aside the conviction of the appellant for the offence under Section 302, IPC and. Win him guilty of the offence under Section 304, Part-I, IPC and sentence him to undergo imprisonment for a period of 8 years. The appeal is disposed of as above. 17. In Jasram's case (supra) in Para, 3 the Supreme Court has observed as under: 3. The medical report shows that the deceased had injuries on her nose, chin and upper part of the face. Though there are multiple injuries, they could have been caused by a single blow and the doctor who conducted the post mortem does not dispute this fact. PW-1 child witness speaks about the quarrel between the Appellant and his wife. It is quite possible that there must have been a sudden quarrel and in the heat of passion the Appellant hit the deceased which resulted in her death. Therefore, offence in our view, would only come within the purview of Section 304, Part-I, IPC. 18. Before parting with the judgment and order, we would like to put on record the appreciation for the valuable assistance of Ms. A. Devi as learned amicus curiae rendered by her in deciding this appeal as indicated above. Accordingly, she is entitled to get Rs. 3,000 (Rupees three thousand) only her professional fees which is quantified at Rs. 3,000 (Rupees three thousand) only. 19. Send down the L.C.R. forthwith.