JUDGMENT:- (1). THIS appeal is directed against a conviction and sentence, passed, in Sessions Trial No.1 (Nov)/90 arising out of Sessions case No. 33/90, on 30th January, 2003 convicting Shaktipada Bayen, Kanu bayen and Dhanu Bayen for offences under sections 302 and 201 and acquitting sukumar Bayen and sentencing the aforesaid convicts to undergo rigorous imprisonment for life as also to pay a fine of Rs. 1,000/-, in default, to suffer simple imprisonment for further six months under section 302 and further rigorous imprisonment for two years together with a fine of Rs. 1,000/-, in default, to suffer simple imprisonment for six months for the offences under section 201. The convicts have come up in appeal. During the pendency of the appeal shaktipada Bayen the first appellant, died which was recorded by a Division bench of this Court in its order dated 16th January, 2004. Briefly stated the facts and circumstances of this case are as follows: on 23rd June, 1983 one Shri Bholanath Sana since deceased, working as dafadar, informed the Officer-in-Charge, Nanur Police Station, in writing, which has been marked exhibit "5" that Chhabidasi, wife of Shri Biswanath Bayen of village Aatgram, had committed suicide by hanging herself by a branch of a mango tree. An unnatural death case bearing No. 9/83 dated 23rd June, 1983 was started. ASI Chandi Char an Banerjee of Nanur Police Station held inquest on 23rd June, 1983 at 12.30 p.m. In his inquest report he recorded to have found "the marks of assault on her both the legs by a lathi and also found mark on injury on left hand. Her eyes are closed but one was in open condition. It is found that hair was on her uterus and blood was found in open front of the uterus". (2). THE inquest report has been marked exhibit 1 and the said Chandi Charan banerjee was examined as P.W. 12. On 24th June, 1983 post-mortem was held by Dr. S. Nath (P. W. 14 ). In the post-mortem report which has been marked exhibit 6 extensive injuries on the body of the deceased including broken ribs on either side of the chest and ruptured lungs were found. Viscera was sent for medical analysis. The doctor reserved his opinion as to the cause of death. (3). S. Nath (P. W. 14 ). In the post-mortem report which has been marked exhibit 6 extensive injuries on the body of the deceased including broken ribs on either side of the chest and ruptured lungs were found. Viscera was sent for medical analysis. The doctor reserved his opinion as to the cause of death. (3). ON 27th June, 1983 S.I. Abul Kasem, Inspector-in-Charge of the Nanur ps, after making, an enquiry, lodged an FIR against the aforesaid accused persons under section 302 read with section 34 and started a murder case. (4). AS many as 14 witnesses were examined. The only eye-witness is P.W. 8 namita Das. She is the daughter of the deceased Chhabidasi alias Bayen. She has in her evidence stated as follows: "my father was a neurotic patient (khepate dharaner) for which he was unable to do the usual work. My father has got no landed property. My father was maintaining a poor family. Due to family poverty, occasional quarrel took place between my parents. During quarrel, my mother used to abuse my father in filthy languages. " (5). P.W. 4 Dolan, a co-villager, deposed as follows: "quarrel took place between Biswanath and his wife over their family poverty. At the time of quarrel, the wife of Biswanath used to abuse her husband. Cause of their quarrel was that Biswanath was unable to do any work. " (6). THERE is thus dependable evidence on record to establish that quarrel between the couple was a regular affair. (7). IT appears from the evidence of P.W. 8 Namita that on the date of incident her parents were quarreling from the morning. In the evening the incident took place. She deposed as follows: "as my parents were quarrelling then Sakti my grand-father who was sitting by the side of the road came and held the hair of my mother and abused as to why my mother abusing my father. As my grandfather Sakti charged my mother then my two uncles Dhanu and Kanu also came there and joined their father in abusing my mother. While Dhanu was assaulting my mother with fists and blows Kanu brought out a piece of bamboo and started my mother recklessly. As my grandfather Sakti charged my mother then my two uncles Dhanu and Kanu also came there and joined their father in abusing my mother. While Dhanu was assaulting my mother with fists and blows Kanu brought out a piece of bamboo and started my mother recklessly. While grandfather and the uncles were assaulting my mother Chhabi then my grandmother whose name I cannot say also appeared and took my younger brother from her lap and put him inside a room. Myself along with my father were similarly put inside the room and we three were kept in that room while the door bolt was put from outside. Then all those people while assaulting my mother brought her out from the compound of the house to outside. We were hearing the cries of my mother who was shouting saying that she should not be assaulted and further cried out that she should be saved from further assault. After that the door which was kept bolted was made open we came out but did not find my mother. " (8). P.W. 8 had earlier made a statement under section 164 Cr. PC which has been marked Exhibit 3. The statement was recorded on 27th June, 1983 by shri T. K. Bhattacharyay, Judicial Magistrate (P.W. 7). At that time Namita was 5/6 years old. The relevant portion of her statement recorded under section 164 Cr. PC reads as fouows: "chhabidasi is my mother. I do not know the date but it was last Wednesday, quarrel took place between my parents in the night after taking dinner. My parents were living separately from my grandfather and uncle. At that time my grandfather was seated beside the road. On hearing quarrel between my parents, my grandfather called my two uncles. Both the uncles and grandfather came to our outer door. Grandfather told my mother being angry why have you talked nuisance to my son? On saying so, my grandfather sakti Bayen caught hold the hair of my mother. My mother began to cry then. At very moment my younger uncle brought bamboo from the fencing wall and my younger uncle Kanu began to beat my mother severely by the bamboo. And the 2nd uncle Dhanu began to call bad names much saying why should you call bad names to my elder brother? Saying so, he began to blow severely on ribs, back and abdomen. At very moment my younger uncle brought bamboo from the fencing wall and my younger uncle Kanu began to beat my mother severely by the bamboo. And the 2nd uncle Dhanu began to call bad names much saying why should you call bad names to my elder brother? Saying so, he began to blow severely on ribs, back and abdomen. Then my 2nd uncle was saying that he will kill my mother. My younger brother aged 4 years was then on the lap of my mother. Beating of lathi has been fallen on his hand. Mother and my brother then crying and raising hue and cry loudly, Grand-mother then snatching my brother from the lap of my mother and forcefully pushed me, my father and my younger brother in the room. Because I was crying loudly standing before him, My father was to some extent abnormal in nature and was physically weak. By pushing us the three persons in a room he closed the door with chain. We were crying loudly inside the room. We could heard from inside of the room that they were beating my mother till then. My mother was saying will they kill me? they are killing me. " (9). THE learned Magistrate (P.W. 7), who recorded the statement under section 164 Cr. PC, in his cross-examination deposed as follows: "there is no note in the statement as to how much time I allowed the witness to reflect her mind. I examined the witness earlier before she made her statement to find out her voluntariliness but there is no note which question was put to her. Then says there are some nothings in the statement. I did not divulge my status as a Magistrate. I recorded the statement in my language but after I was satisfied what she meant to say. Though it is not noted but I recollect that the witness wept while she made the statement as she recounted the fact of her mothers death. " (10). IN her cross-examination the P.W. 8 Namita Das has admitted that on the fateful day during quarrel her deceased mother was abusing her father in filthy language which had angered her grandfather Saktipada the deceased appellant. " (10). IN her cross-examination the P.W. 8 Namita Das has admitted that on the fateful day during quarrel her deceased mother was abusing her father in filthy language which had angered her grandfather Saktipada the deceased appellant. In her statement recorded under section 164 she had admitted that her grand-father and uncles had intervened in the quarrel between the husband and wife because the father of the P.W. 8 was being abused in filthy language. (11). THE autopsy surgeon (P.W. 14) after consulting the viscera report gave his final report as to the cause of death which has been marked exhibit 6/1. According to him the death was ante mortem and homicidal in nature. The viscera report which the P. W. 14 deposed to have taken into account at the time of giving his final opinion was however not on record. (12). THE inquest report, the post-mortem report, doctors opinion and the evidence of Namita (P.W. 8) go to establish beyond any reasonable doubt that the deceased was brutally assaulted by second and third appellants namely dhanu and Kanu. The first one to intervene no doubt was the grandfather of the P.W. 8 but his role appears to have been restricted to catching the deceased by her hair. On the basis of the evidence discussed above homicidal death of the deceased Chhabidasi @ Bayen is firmly established. (13). HOWEVER there is some evidence on the record to suggest that the death could have been suicidal. The appellant Nos. 2 and 3 in their examination under section 313 Cr. PC stated that the deceased committed suicide. We shall now examine the evidence in this regard. (14). P.W. 2 Biren Das, a Co-villager, deposed that he found the body of the deceased hanging by the branch of a mango tree. He however deposed that he did not know the reason of Chhabis death. P.W. 6 Gouri Sankar Pal deposed that while he was going to respond to the natures call in the morning he saw the dead body of Chhabi hanging. P. W. 10 Rampada also claims to have been seen the body hanging by the branch of a mango tree. P.W. 10 further deposed that the accused Dhanu untied the knot of the noose. As a result thereof the dead body fell from a height of 8/10 feet on the mud made by the white ants. P. W. 10 Rampada also claims to have been seen the body hanging by the branch of a mango tree. P.W. 10 further deposed that the accused Dhanu untied the knot of the noose. As a result thereof the dead body fell from a height of 8/10 feet on the mud made by the white ants. The body, according to him, fell by the chest. P.W. 5 Haru deposed that in his presence Dhanu brought down the body from the tree. He deposed that when the knot was undone the body fell by its side and not by its chest. The Dafadar bhola who had informed the Nanur PS in writing that the deceased had committed suicide could not be examined because he had died by the time the trial was held. (15). ON behalf of the defence the autopsy surgeon (P.W. 14) was suggested that the injury found on the body of the deceased could have been occasioned due to falling of the dead body from the height of 8/10 feet to which he replied as follows: "there are injuries of both sides and such type of injuries of both sides are unusual if the body falls on hard substance on her mouth from a certain height. In a very rare case there may be fracture on left or right cornea if a hanging body falls on the ground. " (16). HE deposed that he did not find any ligature mark on the body. He also deposed that it cannot be said that the death was due to hanging. He however admitted that since the body was highly decomposed ligature mark may not have been or was not detected. He however was firmly of the view that the death was homicidal in nature. He also deposed that "the injuries mentioned above may be caused by assault with bamboo lathis, hard and blunt weapons, kicks and blows". The injuries according to him were as follows: "1) Slight abrasion over right ankle joint and over left knee joint 2) Fracture cornea off hyoid bone. 3) Fracture 4th, 5th, 6th and 7th ribs right side both lungs ruptured. " (17). HOWEVER the post-mortem report goes to show that the 4th, 5th and 6th ribs of the left side were also fractured. 3) Fracture 4th, 5th, 6th and 7th ribs right side both lungs ruptured. " (17). HOWEVER the post-mortem report goes to show that the 4th, 5th and 6th ribs of the left side were also fractured. On the top of that the dead body did not fall on any hard substance, as suggested, which had actually fallen on mud created by white ants as deposed by the P. W. 10. (18). CONSIDERING the evidence on the record we are unable to accept the suggestions that the death was suicidal. Some of the reasons for our aforesaid view are as follows: a) There is no significant cross-examination which may lead the Court to disbelieve the evidence of P.W. 8. The contemporaneous statement made by P.W. 8 under section 164 Cr. PC corroborates the evidence given in court. b) That the deceased was brutally assaulted has been firmly established, as indicated above which we need not reiterate. c) It is difficult to believe that the hapless woman with broken ribs and fractured lung and injured limbs could or did have the physical ability to walk a distance and thereafter hang herself. d) The opinion expressed by P. W. 14 the autopsy surgeon that the death was homicidal is corroborated by the evidence of the eyewitness the p. W. 8 and the injuries found at the time of inquest and at the time of postmortem. e) P. W. 10 deposed that while the knot was undone the body fell by its chest whereas P. W. 5 Haru deposed that the body fell by its side. Howsoever the body may have fallen the injuries on the limbs remain wholly unexplained. The rupture of the lungs and blood in the vagina found during the inquest, which has incorrectly been described as uterus in the inquest report, go to show that the theory of suicidal death was resorted to in order to get rid of the punishment consequent to the offence. Another thing which remains unexplained is "fractured cornea off hyoid bone". (19). WE are in the circumstances of the view that the death was not suicidal. The death was rather homicidal as opined by the autopsy surgeon (P.W. 14). (20). MR. Subir Ganguly, learned Advocate appearing in support of the appeal submitted that there was no enmity between the accused persons and the deceased. They, as a matter of fact, were members of the family. The death was rather homicidal as opined by the autopsy surgeon (P.W. 14). (20). MR. Subir Ganguly, learned Advocate appearing in support of the appeal submitted that there was no enmity between the accused persons and the deceased. They, as a matter of fact, were members of the family. The appellants according to him, were provoked which has amply been proved by the evidence of P.W. 8 where she stated that her mother "was abusing her father in filthy language". Her statement under section 164 also goes to show that her grandfather and her uncles were infuriated because her father was being abused in filthy language for quite some time on the date of incident. He accordingly submitted that the accused persons could not have been held guilty of murder. At the highest they could have been held for culpable homicide not amounting to murder under section 304 of the Indian Penal Code. (21). MR. Dutta Gupta, learned Advocate appearing for the State did not, seriously dispute this submission of Mr. Ganguly. (22). THE convicts are all in-laws of the deceased Chhabi. The deceased appellant was her father-in-law and the surviving appellants are the brothers-in-law. It is an admitted fact that the deceased was abusing her husband in filthy language. In other words, the son and the brother of the accused persons was the target of abuse. It is also in evidence that such abuse was continuing from the daytime. By the time the incident took place it was already evening. The possibility of the accused persons having had been provoked in the facts of this case cannot be ruled out. (23). WE are inclined to accept the submission of Mr. Ganguly that by reason of the provocation offered by the deceased, the accused persons lost their power of self-control and caused the death of Chhabi by beating her both by fists and blows and by bamboo stick. We however are not satisfied that the deceased appellant Saktipada Bayen was instrumental in causing death of Chhabi. The only evidence against him is that he caught the victim by her hair. In the circumstances we hold that it was a case of culpable homicide not amounting to murder. The judgment under challenge is to that extent, modified. (24). IN the result the appeal partly succeeds. The only evidence against him is that he caught the victim by her hair. In the circumstances we hold that it was a case of culpable homicide not amounting to murder. The judgment under challenge is to that extent, modified. (24). IN the result the appeal partly succeeds. The conviction under section 302 is substituted by conviction under Part-I of section 304 of the Indian Penal code. The conviction under section 201 is upheld. The appeal insofar as the first appellant Saktipada Bayen is concerned, has already abated. The sentence of life imprisonment awarded by the learned Trial Court is substituted by a sentence of rigorous imprisonment for a term of 10 years. The sentence awarded by the learned Trial Court under section 201 shall run concurrently. The appellant Nos. 2 and 3 are directed to surrender forthwith before the learned trial Court i.e. Additional Sessions Judge, 1st Court, Suri for the purpose of serving our rest of the sentences. Bail granted to them by the order dated 16th January, 2004 is cancelled. (25). LOWER Court Records with a copy of this judgment be transmitted forthwith to the learned Trial Court for information and necessary action. (26). URGENT xerox certified copy of this judgment, if applied for, be delivered to the learned Advocate for the parties, upon compliance of all formalities. Appeal partly succeeds.