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2008 DIGILAW 659 (GAU)

Shishir Kumar Ray v. State of Assam

2008-09-08

AFTAB H.SAIKIA, ANIMA HAZARIKA

body2008
JUDGMENT Aftab H. Saikia, J. 1. The conviction of the Appellant under Section 302, IPC and his sentence to undergo Life Imprisonment with a fine of Rs.500/- so imposed by the learned Additional Sessions Judge, Dhubri by his judgment and order dated 26.4.2002 in Sessions Case No. 41 of 2001 have been challenged in this Criminal Appeal from jail. 2. The prosecution case in brief is that one Shri Baneswar Ray (PW 7) lodged an FIR on 25.12.2000 with the Officer-in-charge, Paglahat police under Golakganj PS alleging that around 3.00 p.m. on that day the Appellant killed his wife Fulti Bala Roy (hereinafter referred to as, 'the deceased'), who was his sister by cutting her in the neck with a sharp weapon at the courtyard of the Appellant's residence at Jaldoba village. 3. On the basis of the allegation, police registered a case under Section 302, IPC. 4. On completion of investigation, police submitted charge-sheet against the Appellant under Section302, IPC. 5. In course of the trial, the prosecution examined 9 witnesses including 3 official witnesses namely PW-7 Dr. Durga Prasad Sarma who conducted autopsy on the dead body of the deceased, PW-6 Shri Sanjay Hazaria, Judicial. Magistrate 1st Class Dhubri who recorded the confessional statement of the accused-Appellant and PW-8, Sri Dilip Bharali, the Investigating Officer, for short, 'the IO'. 6. The learned Sessions Judge, having meticulously appreciated the testimony of all those witnesses and also taking into account the confessional statement made by the accused before the learned Judicial Magistrate, PW-6, found the Appellant guilty of committing the offence of murder and consequently, by his judgment and order dated 26.4.02 convicted and sentenced the Appellant as indicated above. 7. Admittedly, there was no eye witness to prove the prosecution case. 8. The learned Session Judge convicted the Appellant primarily on the basis of the confessional statement made by the accused-Appellant before the PW-6 Shri Sanjay Hazarika, Judicial Magistrate 1st Class, Dhubri. 9. We have thoroughly scrutinized and analyzed the testimony of all the witnesses including Dr. Durga Prasad Sarmah, PW-7, who conducted the autopsy on the dead body of the deceased and the confessional statement made by the accused-Appellant Exhibit-3. 10. The Appellant in his confessional statement stated as under: The statement of Sishir Kr. Roy aged about 65 years made in the Assamese language. My name is Sisir Kr. Roy My father name is Lt. Durga Prasad Sarmah, PW-7, who conducted the autopsy on the dead body of the deceased and the confessional statement made by the accused-Appellant Exhibit-3. 10. The Appellant in his confessional statement stated as under: The statement of Sishir Kr. Roy aged about 65 years made in the Assamese language. My name is Sisir Kr. Roy My father name is Lt. Jageswar Rai I am by caste Hindu and by occupation Labour My home is at Mouza Jaldoba Police Station Golakganj Dist Dhubri, I reside at Jaldoba village. For the last two years I have had arguments with my wife Fulti Bala Roy over household affairs. My wife used to abuse me in filthi language. She used to consume her meals even before serving the same to me. She did not obey me. On the day of occurrence, I had been sitting at home, reading a religious book. My wife started abusing me, accusing me of not doing any work. Being unable to tolerate her abuses any more, I went to the courtyard outside and cut her abuses any more, I went to the courtyard outside and cur her with the dao that was in my hand. I cut her in the neck with the dao. A number of people gathered even as I was waiting in the courtyard. They manhandled me. I begged excuse from them and went to the police station. This is all that I have got to say a Sd/- Sisir Roy Ext 3 (8) Sd/illegible Addl. Sessions Judge, Dhubri 11. From perusal of the record, it also appears that the Appellant had made his confessional statement before the learned Judicial Magistrate PW-6 on 29.12.2000. However, it also transpires that he retracted such confession on 12.4.2002 while he was examined under Section 313, Code of Criminal Procedure after a gap of sixteen months. 12. Having carefully gone through the statement made by the Appellant under Section 313, Code of Criminal Procedure on 12.4.2002, we do not find any cogent or plausible reason given by the Appellant denying his confessional statement made on 29.12.2000. 12. Having carefully gone through the statement made by the Appellant under Section 313, Code of Criminal Procedure on 12.4.2002, we do not find any cogent or plausible reason given by the Appellant denying his confessional statement made on 29.12.2000. It is established that where the confession was not retracted at earliest opportunity but after lapse of several months and when prosecution evidence was closed and during examination of the accused under Section 313, Code of Criminal Procedure, the circumstance reinforces the conclusion that confession was voluntary see Shankaria v. State of Rajasthan AIR 1978 SC 1245. 13. That apart, according to us, the confessional statement made by the Appellant, appears to be perfectly voluntary and true, PW-6 also in recording such confessional statement followed the procedure as prescribed by the law. 14. Under the premises abovementioned, we have no hesitation to hold that the Appellant was involved in committing the offence of murder of his wife-the deceased. 15. Having considered the entire facts and circumstances as unfolded by the prosecution and also taking into account the confessional statement so made by the Appellant before the learned Judicial Magistrate 1st Class, Dhubri on 29.12.2000, we are of the considered opinion that the incident happened due to consistent abusing by the deceased towards the Appellant and on sudden provocation, the Appellant assaulted his wife with a dao on her neck resulting in death. 16. However, taking into consideration the mitigating circumstances as reflected in the confessional statement, and also considering the age of the Appellant who was aged about 65 years at the time of commission of offence and presently about 73 years, we are of the opinion that ends of justice would be satisfied, if his conviction, is converted to Section 304, Part-I, IPC and sentenced him to undergo 8 years rigorous imprisonment. It is ordered accordingly. 17. The impugned conviction under Section 302, IPC and sentence to undergo life imprisonment stand set aside and quashed. 18. In the result, this appeal stands party allowed to the extent of modification of conviction and sentence as indicated above. 19. Send down the LCR immediately. 20. Before parting with the judgment, we would like to put on our appreciation to Mrs. A. Devi, learned Amicus Curiae for her valuable assistance rendered to arrive at a conclusion in the abovementioned appeal. 19. Send down the LCR immediately. 20. Before parting with the judgment, we would like to put on our appreciation to Mrs. A. Devi, learned Amicus Curiae for her valuable assistance rendered to arrive at a conclusion in the abovementioned appeal. Accordingly, we order that she is entitled to get her professional fee which is quantified at Rs.5000/-. Appeal allowed.