Research › Search › Judgment

Gauhati High Court · body

2008 DIGILAW 644 (GAU)

Chimai Bhuyan v. State of Assam

2008-09-02

AFTAB H.SAIKIA, P.K.MUSAHARY

body2008
JUDGMENT Aftab H. Sakia, J. 1. The conviction of the Appellant under Section 302, IPC and sentence to undergo rigorous imprisonment (for short, 'RI') for life and to pay fine of Rs.500/-, in default further RI for 3 months, so handed down by the learned Additional Sessions Judge (Ad hoc), Jorhat in Sessions Case No. 90 (J-J)/01 vide his judgment and order dated 25.1.02 have been assailed in this jail appeal. 2. Heard Mr. T.J. Mahanta, learned Amicus Curiae representing the Appellant from jail as well as Mr. K.C. Mahanta, learned Public Prosecutor, Assam. 3. The prosecution case in brief is that one Kuladhar Dutta (PW-6), the Gaonburah of Namchungi village lodged an 'ejahar' with Jalukonibari police out post under Titabor Police Station on 12.4.01 alleging that around 9.00 p.m. on 11.4.01, the Appellant, a resident of Dhali Line of Barchapari under Kuhum Tea Estate hacked his wife Rina Bhuyan (hereinafter referred as 'the deceased') to death with a 'dao'. After completion of investigation, police submitted charge-sheet against the Appellant under Section 302, IPC for the offence of killing the deceased. 4. During trial, the prosecution examined as many as eight witnesses including two official witnesses namely, Dr. Probin Bora (PW 7), who conducted autopsy on the dead body of the deceased and Man Mohan Dutta (PW 8), the Investigating Officer (for short, 'the IO'). 5. The learned Judge, on appreciation of the evidence on record of all the witnesses so examined by the prosecution as well as upon hearing learned Counsel for the parties, found that 'extra judicial confession' made by the Appellant before PW 1 (Kamal Bhuyan), PW 2 (Putul Bhuyan), PW 3 (Lakheswar Saikia), PW 4 (Anil Bhuyan) and PW 5 (Joydhan Bhuyan) being corroborative one another and accordingly convicted the Appellant under Section 302, IPC and sentenced him as mentioned above on the sole basis of such 'extra judicial confession'. 6. We have carefully and meticulously appreciated the testimonies of all those witnesses basically, PW 1, PW 2, PW 3, PW 4, PW 5 and also PW 7, the Doctor. 7. The doctor (Dr. Probin Bora), PW 7, who conducted autopsy on the dead body of the deceased found the following injuries: On examination a large incised wound on the upper part of the left side of the neck was seen. 7. The doctor (Dr. Probin Bora), PW 7, who conducted autopsy on the dead body of the deceased found the following injuries: On examination a large incised wound on the upper part of the left side of the neck was seen. Size-5" in length breadth ½", depth ½", starting 1" below the left mandible placed obliquely, down ward just above the left clavide. Bleeding present. Other organs are found normal. 8. The Doctor (PW 7) in his opinion stated that the cause of death was due to shock and hemorrhage as a result of extensive hemorrhage. 9. Having closely gone through the medical evidence, it appears that the deceased died on the spot due to one fatal injury inflicted upon her neck. We also have meticulously scanned the statement made by the Appellant on his examination under Section 313, Code of Criminal Procedure as well as the statement made under Section 161, Code of Criminal Procedure before the police at the time of investigation. 10. Upon consideration of the projected facts and circumstances of the case in details including the deposition of those witnesses, it appears that there was a quarrel took place between the husband and wife i.e., the Appellant and the deceased respectively as regards deposit of husband's daily income/earnings with his wife on the relevant day. Since the Appellant did not handover the entire earning which he got on the relevant day, his wife/the deceased quarreled with her husband. Out of such quarrel, the husband/Appellant was suddenly provoked by his wife/the deceased as a result of which he struck the fatal 'dao' blow upon the neck of his wife/the deceased. 11. Having considered the above factual situation in its totality and also taking note of the mitigating circumstances of the case reflected from the testimony of the prosecution witnesses, we are of the view that such fatal single 'dao' blow was inflicted by the Appellant upon his wife on sudden provocation arising out of the quarrel that took place between them as regards the deposit of entire daily earning of the Appellant with the wife and that he would have the knowledge that such blow would result in the death of his wife. Accordingly, we are of the considered opinion that the Appellant has committed a culpable homicide but it is not a commission of murder and rather it is a case which falls under Section 304, Part-I, IPC, but not under Section 302, IPC. 12. That being so, we have no hesitation to set aside the conviction of the Appellant under Section 302, IPC. It is ordered accordingly. We convert the conviction of the Appellant from under Section 302, IPC to Section 304, Part-I, IPC. 13. At this stage, as regards the sentence of the Appellant, Mr. Mahanta, learned Amicus Curiae has submitted that the Appellant has all along been in jail during the date of his arrest after the commission of offence i.e., w.e.f. 13.4.01 and by this time, he has already spent incarceration for more than 7 year 4 months and he may, accordingly, be sentenced to the period already undergone. We have found sufficient force in such submission. 14. In view of what has been discussed, stated and observed above as well as upon consideration of the submission made by the learned Amicus Curiae on behalf of the Appellant, we convict the Appellant under Section 304, Part-I, IPC and sentence him to the period already undergone in custody. 15. The Appellant be set at liberty forthwith, if he is not required in any other case. 16. In the result, this appeal stands partly allowed to the extent of modification of sentence as indicated above. Send back the LCR. 17. Before parting with the case, we would like to put on record our appreciation to Mr. T.J. Mahanta for rendering his valuable assistance in arriving at a decision above-recorded in this case as Amicus Curiae. Accordingly, Mr. Mahanta is entitled to his profession fees which is quantified at Rs.5,000/-. But, at this, Mr. Mahanta has, in his usual fairness, expressed his unwillingness to accept any such professional fees for rendering assistance as Amicus Curiae in this case. Appeal allowed.