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2008 DIGILAW 154 (GAU)

Arun Seal v. State of Assam

2008-02-25

AFTAB H.SAIKIA, H.BARUAH

body2008
Aftab H. Saikia, J 1. Heard Mr. G.M. Paul, learned counsel for the appellant as well as Mr. K.A. Mazumdar, learned Public Prosecutor, Assam. 2. The conviction of the appellant under section 302, IPC and resultant sentence to undergo rigorous imprisonment for life and to pay fine of Rs. 2,000 in default of payment of fine to undergo further rigorous imprisonment for another one month so imposed by learned Adhoc Additional Sessions Judge in Sessions case No. 6 (BGN) of 2001 by his Judgment and order dated 28.6.2004 has been assailed in this Criminal appeal. 3. Prosecution case in brief is that on the night of 18.7.1999 at about 11 P.M. accused Arun Seal assaulted his wife Bina Seal in his house and also set fire to her body by pouring kerosene oil. Deceased Bina Seal and her children raised cries and hearing their cries, neighbors of the deceased came and hospitalized her in the Bongaigaon 30 bedded rural hospital for her treatment. Sri Ganga Prosad Gogoi one of the neighbors informed the Officer-in-charge of Bongaigaon Police Station about the occurrence orally on the same night at about 12.30 A.M. The Officer-in-charge of Bongaigaon P.S. on receipt of the said oral information, recorded it in the general diary of his police station vide G.D. Entry No. 768, dated 19.7.1999 and endorsed it to T.S.I. Surojit Choudhury for investigation. T.S.I. Surojit Choudhury accordingly launched investigation. On 20.7.1999 the deceased Bina Seal also lodged a written ejahar with the Officer-in-charge of Bongaigaon P.S. and the Officer-in-charge, Bongaigaon P.S. on receipt of the said ejahar, registered Bongaigaon P.S. Case No. 97/99 under section 498 (A)/302 of the IPC and endorsed it to T.S.I. Surojit Choudhury for completing the investigation. T.S.I. Surojit Choudhury accordingly investigated the case and after completion of investigation submitted charge sheet against accused Arun Seal under section 498 (A)/302 of the IPC. 4. During trial prosecution examined as many as 8 witnesses including P.W.5 Doctor N.R. Borbhuiya who conducted the autopsy on the dead body of Bina Seal the deceased and P.W.8 the Investigating Officer (I/O). 5. The learned Sessions Judge having heard the learned counsel for the parties and on appreciation of the material evidence on record, found the appellant guilty of the offence of murder of his wife, the deceased under section 302, IPC and convicted and sentenced him as mentioned above. 5. The learned Sessions Judge having heard the learned counsel for the parties and on appreciation of the material evidence on record, found the appellant guilty of the offence of murder of his wife, the deceased under section 302, IPC and convicted and sentenced him as mentioned above. In convicting and sentencing the appellant, learned Sessions Judge basically relied on the evidence of P.W.3 Smti Ganga Seal, daughter of the deceased who was examined by the prosecution as only eye witness. 6. We have carefully appreciated the entire evidence on record including P.W.3 the eye witness, the daughter of the appellant as well as of the deceased. 7. We have given our anxious consideration to the arguments so placed on record on behalf of the appellant as well as learned P.P., Assam 8. Having scrupulously evaluated the testimony of P.W.3, who in her examination-in-chief as well as in cross, she emphatically and categorically deposed that she saw herself in her own eyes that her father had beaten her mother and set her on fire by pouring kerosene at about 11-00 P.M. which circumstances were also duly corroborated by the deceased herself who made the allegations exactly similar at the time of filing of the FIR on 20.7.1999, we are disinclined to interfere with the findings of the facts so entertained by the learned Sessions Judge and further we find enough force in the submissions and contentions so made by the learned counsel representing the appellant to the effect that the offence so committed by the appellant, in the facts and circumstances, cannot come within the purview of section 302, IPC. It is also pointed out by the learned counsel Mr. Paul that it was on record that on that fateful night there was a quarrel in between the husband and wife as usually happened between husband and wife and the accused/appellant due to sudden provocation might have caused such action against his wife. It is also contended by the learned counsel that though Doctor opined that she suffered 90% burn injuries, it is doubtful how with such burn injuries she would appear and go to the concerned Police Station for filing the FIR after 2 days that is on 20.7.1999 when the occurrence took place on 18.7.1999. 9. It is also contended by the learned counsel that though Doctor opined that she suffered 90% burn injuries, it is doubtful how with such burn injuries she would appear and go to the concerned Police Station for filing the FIR after 2 days that is on 20.7.1999 when the occurrence took place on 18.7.1999. 9. We have also considered the evidence of P.W.5 the Doctor who in his opinion deposed that the death was due to shock and haemorrhage as a result of burn injuries sustained by the deceased. 10. In view of such submissions and contentions and taking note of the attending facts and circumstances of the case in its entirety, we are of the considered view that the appellant certainly would have knowledge that his such act would result in the death of the deceased-wife and as such the offence so committed by the accused appellant, according to us, would come under the purview of Section 304, Part-I, IPC instead of section 302, IPC. Hence we set aside the conviction and sentence so passed by the learned Adhoc Additional Sessions Judge, Bongaigaon and the appellant is convicted under section 304, Part-I, IPC and sentenced him to undergo imprisonment for a period of 10 years. 11. The appeal is disposed accordingly to the extent of modification of the conviction and sentence as indicated above. 12. Send down the LCR.