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2009 DIGILAW 32 (GAU)

Biren Namasudra v. State of Assam

2009-01-16

H.BARUAH, I.A.ANSARI

body2009
I A. Ansari, J- 1. By judgment and order, dated 30.11.1996, passed, in Sessions Case No. 27(DH)/1996, by the learned Sessions Judge, Dhemaji, the appellant stands convicted under section 302, IPC and sentenced to suffer imprisonment for life and pay fine of Rs. 100 and, in default of payment of fine, suffer rigorous imprisonment for a further period of one month. 2. We have heard Mr. P.K. Talukdar, learned amicus curiae, and Mr. K.C. Mahanta, learned Additional Public Prosecutor, Assam. 3. The prosecution's case is, in brief, thus : On 29.7.1995, accused Biren Namasudra was seen chasing his wife, Jashoda, from his house towards the paddy field with an axe in his hand. While running for her life through the field, shouting for help to save her, Jashoda fell on the ground, because her clothes obstructed her running away. The accused came to the place, where Jashoda had fallen, and gave a blow with, his axe, on her head, causing her to die instantaneously. Several persons, who were present at their respective paddy fields, at that time, saw the occurrence of assault, on Jashoda, by her husband. One of such persons, Tilok Namasudra (PW1), went to Silapathar Police Station and lodged there a written Ejahar (PW1), which was treated as FIR. A case was accordingly registered against the accused and, on completion of investigation, police submitted charge sheet against the accused under section 302, IPC. 4. At the trial, the accused pleaded not guilty to the charge framed against him under section 302, IPC. 5. In support of its case, prosecution examined altogether eight witnesses. Having found the accused guilty of the offence charged with, learned trial court convicted him accordingly and passed sentence against him, as mentioned hereinabove. 6. While considering the present appeal, what may be pointed out, at the very outset, is that as many as four persons have been examined, by the prosecution, as eye witnesses to the alleged occurrence of assault on Jashoda by the accused with the axe, these witnesses being PW1, PW3, PW4 and PW5. 7. Let us, first, consider the evidence of the informant (PW1). 7. Let us, first, consider the evidence of the informant (PW1). According to his evidence, on the day of the occurrence, when he was ploughing his field, at a distance of about thirty nols (1 nol being 12 cubits) from the house of the accused, he, suddenly, noticed Jashoda, wife of the accused, who came running out of her house and the accused chasing her with an axe in his hand and, at that time, Jashoda was screaming, saying "Save me", "Save me". PW1 has deposed that while Jashoda was so running away, her wearing apparels obstructed her movements, she fell down on the ground, the accused came running there and killed her by giving a blow with an axe on her head and, at that time, PW3, PW4 and PW5 were ploughing their paddy fields nearby the place of occurrence. PW1 has also deposed that after killing his wife, the accused came to his paddy field and, while sitting there, he shouted saying that nobody should come near him and, hence, none approached the accused out of fear. PW1 has further deposed that he, then, went to the police station and lodged there Ejahar (Exhibit 1), whereupon the police came to the place of occurrence, apprehended the accused and seized the axe from the accused, the seizure list being Exhibit 2. 8. Though PW1 was put to cross-examination by the defence, nothing, in particular, could be elicited from the cross-examination of PW1 to show that what he had deposed was untrue. In fact, there is no material elicited from the cross-examination of PW1 to show that any part of his evidence is unbelievable or must be discarded. Situated thus, it is clear that the evidence of PW1 has remained entirely unshaken. 9. In fact, there is no material elicited from the cross-examination of PW1 to show that any part of his evidence is unbelievable or must be discarded. Situated thus, it is clear that the evidence of PW1 has remained entirely unshaken. 9. Close on the heels of the evidence of PW1 is the evidence of PW3, PW4 and PW5, who, too, broadly in tune with the evidence of PW1, have deposed that they had seen the accused chasing his wife from the direction of his house and, while running away, the wife of the accused fell on the ground, whereupon the accused gave, on the head of his wife, a blow with his axe, which he was carrying, and killed her on the spot and, thereafter, the accused sat near the place of occurrence with the axe still in his hand and, on being informed, police came to the place of occurrence. The evidence of these three witnesses also remained wholly unshaken inasmuch as the defence could not elicit, from examination of these witnesses, anything at all to show that what these witnesses had deposed was not safe to believe in. We, therefore, see no reason to disbelieve the evidence of PW3, PW4 and PW5. 10. What emerges from the above discussion of the evidence of PW1, PW3, PW4 and PW5, is that the accused was seen chasing his wife, Jashoda, with an axe in his hand and that Jashoda fell on the ground due to obstruction caused to her movements by her wearing apparels, the accused gave a blow on the head of his wife with an axe and killed her on the spot and, having killed her, the accused did not flee away; rather, he sat in his paddy field until the time police, on being informed about the occurrence by PW1, arrived on the place of occurrence, caught a hold of the accused and seized the axe by a seizure list, which is Exhibit 2. From the oral evidence, so adduced, there can be no escape from the conclusion that Jashoda died at the hands of the accused-appellant in the manner as described hereinabove. 11. When we turn to the evidence of the doctor (PW7), who has performed b post mortem examination, we find his evidence as follows : "A big crush injury of about 5" diameter extending left partial region of the skull to left cheek. 11. When we turn to the evidence of the doctor (PW7), who has performed b post mortem examination, we find his evidence as follows : "A big crush injury of about 5" diameter extending left partial region of the skull to left cheek. The skull and the skin on the cheek are lacerated, the skull bone underneath is broken into pieces and the brain matter is crushed with massive haemorrhage. There is sign of ante mortem haemorrhage throughout the injury. Rigor mortis is present all over the body. The body is not decomposed. Abdomen is suggestive of 6 months pregnancy. After opening thorax, all organs are found to be normal. After opening abdomen all organs are found to be normal, Vagina and cervix are normal. Uterus is enlarged up to umbilical region and it contains of female baby of about 6 months of age." 12. It is in the evidence of PW7 that the injuries were ante-mortem in nature and these injuries could have been caused by an axe, such as Exhibit 1. From the findings of PW7, which has not been disputed by the defence and which we do not see any reason to discard, it becomes clear that the medical evidence on record completely corroborates the ocular evidence on record inasmuch as even PW7 has found a crush injury on the left partial region of the scull of the said deceased, the injury being ante-mortem, and it was as a result of the said injury that the said deceased died. 13. What surfaces from the above discussions of the evidence on record is that the accused-appellant had chased and killed his wife, as described hereinabove, the killing being intentional, which was not followed by any incident, which had given, or could have given, rise to grave and/ or sudden provocation to do what the accused is proved to have done. Though an attempt appears to have been made, at the stage of trial, to show that the accused suffered from some kind of insanity, no specific material has been brought on record, either by way of cross.-examination or otherwise, to show that the accused was of unsound mind at the time, when he had, according to the evidence on record, assaulted and killed his wife by giving a blow on her head with an axe. The accused-appellant has, thus, been proved, beyond reasonable doubt, to have committed the offence of murder punishable under section 302, IPC. Consequently, the conviction of the accused-appellant under section 302 IPC cannot, therefore, be interfered with and the sentence passed against the accused-appellant is reasonable and warrants, therefore, no interference. 14. Because of what have been discussed and pointed out above, we see no reason to hold that the findings reached against the accused-appellant are not sustainable. Situated thus, it is clear that this appeal is wholly without merit and deserves to be dismissed. 15. In the result and for the reasons discussed above, this appeal fails and the same is accordingly dismissed. The judgment and order, impugned in this appeal, stands accordingly upheld. 16. Send back the LCRs.