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2008 DIGILAW 400 (GAU)

Jagdish Nayak v. State of Assam

2008-06-02

AFTAB H.SAIKIA, HRISHIKESH ROY

body2008
JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. Amit Goyal, learned Amicus Curiae who has been appointed in place of Ms. N. Hawalia, the earlier appointed Amicus Curiae as she is found to be absent when this jail appeal has been taken up for hearing which has been pending since 2002. Also heard Mr. B. Section Sinha, learned Public Prosecutor, Assam, on behalf of the respondent. 2. The conviction of the appellant under Section 302 IPC for killing his wife, Smt. Basanti Nayak (hereinafter referred to as 'the deceased') and subsequent sentence to undergo life imprisonment and to pay a fine of Rs. 500/-, in default, further rigorous imprisonment for another 3 months, so handed down by the learned Additional Sessions Judge (Adhoc), Jorhat, in Session Case No. 79 (J-J)/2000 vide his Judgment and Order dated 24.4.2002, has been assailed in this appeal by the appellant from jail. 3. The facts of the case in short as unfolded by the prosecution are that an FIR lodged by one Sri Munshi Nayak, PW1 on 29.8.99 with the Officer-in-Charge, Madhapur Outpost within the jurisdiction of Titabor Police Station stating that at about 9:00 PM of the last night they heard their neighbour Smt. Basanti Nayak and her husband picked up a quarrel which provoked the later to assault his wife. In the morning, when they had not get any response by calling the deceased, they entered her house and found her inside being dead. When they informed the matter to the Garden Manager, the accused/appellant confessed before the Manager and other public that he killed his wife. 4. During trial of the appellant under charge of Section 302 EPC, the prosecution examined as many as 9 witnesses including two official witnesses, namely, PW 8 (Dr. Kumud Nath) who held autopsy on the person of the deceased and PW 9 (Sri Chandra Kt. Sarma Baruah), the Investigating Officer as well as two defence witnesses. 5. The learned Sessions Judge upon appreciation and evaluation of the material witnesses so projected by the prosecution as well as the defence witnesses and also having heard learned Counsel for the parties, found the appellant guilty of the offence under Section 302 IPC and sentenced him as indicated above. 6. 5. The learned Sessions Judge upon appreciation and evaluation of the material witnesses so projected by the prosecution as well as the defence witnesses and also having heard learned Counsel for the parties, found the appellant guilty of the offence under Section 302 IPC and sentenced him as indicated above. 6. We have meticulously scanned the entire evidence on record including the medical evidence so adduced by PW 8 and other witnesses, namely, PW 1, P W 2, PW 3, P W 4, PW 5 and PW 6. On careful appreciation of the testimony of those witnesses, it transpires that all the witnesses testified the fact that on the eventful night there was a quarrel between the appellant and deceased who was his wife and out of such quarrel, the appellant assaulted his wife with legs and hands which resulted in her death. 7. Injuries so described by PW 8 in his evidence would clearly evidence that the deceased suffered some injuries by use of blunt weapon which could be legs and hands, as evident from the testimony of the witnesses. It could be prudent to look into the injuries so inflicted on the person of the deceased as examined by PW 8, the Doctor. The same are quoted below : 1) deep bruise over public region and right hypochondriac region. 2) lacerated wound over the right eye. Internal injuries : 1) 2nd, 3rd and 4th rib on the right side was broken. 2) Right lobe of the liver was found ruptured. The Doctor in his opinion stated that death was due to syncope as a result of injuries sustained by the deceased and internal wounds were caused by blunt object. 8. On proper scrutiny of the evidence of other witnesses, it is apparently revealed that there was a quarrel on the night of occurrence and the appellant assaulted his wife by legs and hands. It was also projected in the evidence that the deceased/wife of the appellant was suffering from illness, as stated by her neighbour, PW 3. That apart, the appellant had made extra judicial confession to the Manager of the Tea Garden and such extra judicial confession appears to be voluntary and has been duly corroborated by the witnesses namely, PW 1, PW 2 and PW 3. 9. That apart, the appellant had made extra judicial confession to the Manager of the Tea Garden and such extra judicial confession appears to be voluntary and has been duly corroborated by the witnesses namely, PW 1, PW 2 and PW 3. 9. Admittedly, there was no eyewitness of the occurrence and the conviction of the appellant is wholly based on circumstantial evidence including the extra judicial confession. 10. Having carefully gone through the en tire evidence so adduced by the prosecution and also upon hearing learned Counsel for the parties, we are of the firm view that the appellant was involved in causing death to his wife. However, taking into consideration the mitigating circumstances that there was a quarrel between the appellant and the de ceased being husband and wife on that unfortunate night and on sudden provocation the appellant killed his wife. More particularly, it has come on evidence that such assault was caused by fist blows and kicks which was duly supported by the medical evidence. Given facts and circumstances, we are of the view that there was no intention to kill his wife by the appellant. Accordingly, we are inclined to alter the conviction of the appellant under Section 302 IPC to Section 304 Part-H IPC. 11. At this stage, it is stated at the Bar that the appellant has already served a sentence of more than 6 years and he also served 6 months imprisonment before the impugned conviction as under trial prisoner and accordingly a request has been made to sentence the appellant for the period already under gone. 12. In view of the above facts and circumstances as stated above, we find enough force in such submission and accordingly we sentence the appellant to the period already undergone. 13. The appellant be set at liberty forthwith, if he is not required in any other case. 14. In the result, this appeal stands partly allowed to the extent of modification of conviction and sentence of the appellant as indicated above. 15. Send down the LCR forthwith. 16. Before parting with the case, we would like to put on record our appreciation to Mr. Amit Goyal for his valuable assistance rendered in arriving at a decision above-recorded in this case as Amicus Curiae. 17. Accordingly, it is ordered that he is entitled to professional fees which is quantified at Rs. 5000/-.