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2009 DIGILAW 428 (GAU)

Dipen Rajbongshi v. State of Assam

2009-06-23

I.A.ANSARI, J.CHELAMESWAR

body2009
JUDGMENT I.A. Ansari, J. 1. By judgment and order, dated 30.6.03, passed, in Sessions Case No. 108/2000, by the learned Addl. Sessions Judge, Cachar, Silchar, the Appellant stands convicted of an offence under Section 302IPC and sentenced to suffer imprisonment for life and pay a fine of Rs. 1000/ - and, in default, to undergo rigorous imprisonment for a period of six months. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be described thus: On 15.4.2000, accused Dipen Rajbongshi, who had been working as a chowkidar, at the construction site of PW 6, went to the house of PW 4, who was supervisor at the said construction site, and informed PW 4 that he (accused) had killed his wife by means of a dao and requested PW 4 to save him. After informing PW 4 that he had killed his wife, the accused left, PW 4, then, went to the house of PW 2, who had also been working at the said construction site, and informed PW 2 as to what he (PW 4) had been reported by the accused, whereupon both PW 4 and PW 2 went to the house of the contractor, (PW 6) and informed him that the accused had reported to PW 4 that the accused had killed his wife. PW 6, immediately, informed Silchar Police Station over telephone about the fact that the accused had reported to have killed his wife. Based on this information, GD Entry No. 224, dated 15.4.2000, was made. Police visited the room, where the accused used to live; but finding the room locked from outside, the police personnel came back. On being instructed by PW 6, PW 2 lodged, on the following day, a written information about what they had heard. Based on this written information, FIR was registered. The investigating officer (PW 8) came to the room of the accused, broke open the door of the room and found a female dead body lying on a chair with cut injury on the neck. Inquest was held over the said dead body and a dao was seized treating the same as the weapon of offence. The accused was taken into custody and, on completion of investigation, charge-sheet, under Section 302 IPC, was laid against the accused. 3. During trial, prosecution examined altogether eight witnesses including the investigating officer. Inquest was held over the said dead body and a dao was seized treating the same as the weapon of offence. The accused was taken into custody and, on completion of investigation, charge-sheet, under Section 302 IPC, was laid against the accused. 3. During trial, prosecution examined altogether eight witnesses including the investigating officer. The accused was, then, examined under Section 313 CrPC and, in his examination aforementioned, the accused denied that he had committed offence alleged to have been committed by him, his case being that his wife, Chandra Kumari (deceased), had assaulted him with a dao and out of rage, he snatched away the dao and gave her a blow with the dao, the blow fell on her neck and she died. The accused also asserted, in his statement, recorded under Section 313 CrPC, that he had not struck his wife with the dao with intention to kill her. No evidence was adduced by the defence. Having held the accused guilty of the charge, the learned trial Court convicted the accused accordingly and passed sentence against him, as mentioned above. The accused has, therefore, preferred this appeal. 4. We have heard Mr. A. Ojah, learned amicus curiae, and Mr. Z. Kamar, learned Public Prosecutor. 5. While considering this appeal, what needs to be pointed out, at the very outset, is that the case of the prosecution revolves around the evidence of PW 2 and PW 4 for the purpose of proving the extra-judicial confession, which is said to have been made by the accused-Appellant. Let us, therefore, consider the evidence of PW 4. According to his evidence, he had seen the wife of the accused at the site on the day, when the accused came in the evening and informed him that he had killed his wife by means of a dao and requested PW 4 to save him. It is in the evidence of PW 4 that after giving the said information, the accused left, whereupon, PW 4 went to the house of PW 2 and reported to PW 2 as to what he had been told by the accused. It is in the evidence of PW 4 that after giving the said information, the accused left, whereupon, PW 4 went to the house of PW 2 and reported to PW 2 as to what he had been told by the accused. In his evidence, PW 2 fully corroborates the evidence so given by PW 4 inasmuch as the evidence of PW 2 is to the effect that PW 4 came to the house of PW 2 and informed PW 2 that the accused had told PW 4 that he had killed his wife. It is in the evidence of PW 2 and 4 that both of them, then, went to the house of PW 6 and informed him as to what they had been told by the accused, whereupon PW 6 informed the police over phone. 6. Before proceeding further, we may also note that even PW 6 has deposed that PW 2 and PW 4 came to PW 6 and informed PW 6 that the accused had killed his wife. The fact that PW 6 informed the police as to what PW 6 had learnt from PW 4 and PW 2 has been corroborated by the investigating officer (PW 8) inasmuch as the evidence of PW 8 is also to the effect that on 15.04.2000, at 9.30 P.M., the Officer-in-Charge of the said police station received a telephonic message from PW 6 that his chowkidar, Dipen Rajbongshi (accused), engaged at his construction site, had killed his wife and GD Entry No. 224, dated 15.4.2000, was accordingly made; but, on visiting the room of the accused, he (investigating officer) found the room locked from outside and came back. 7. We have minutely scrutinized the cross-examination of PW 2 and PW 4 at the hands of the defence, but we find that the evidence given by PW 4 to the effect that the accused had reported to him that he had killed his wife by means of a dao could not be shaken by the defence. This apart, when the evidence of PW 2 and PW 4 is considered, in the light of the evidence of PW 6 and PW 8, whose evidence too, has remained unshaken, what clearly transpires is that the accused went to the house of PW 4 and informed PW 4 that he had killed his wife by means of a dao. This apart, when the evidence of PW 2 and PW 4 is considered, in the light of the evidence of PW 6 and PW 8, whose evidence too, has remained unshaken, what clearly transpires is that the accused went to the house of PW 4 and informed PW 4 that he had killed his wife by means of a dao. It is also noteworthy that the accused, responding to a question put to him, at the stage of his examination, under Section313 CrPC (1)(b), admitted that he had informed PW 4 that he had killed his wife. 8. Though conviction of an accused cannot be based solely on the basis of his statement, recorded under Section 313 CrPC, the fact remains that the statement of an accused, recorded under Section313 CrPC, can be taken into consideration, along with other evidence on record, for the purpose of determining the question as to whether the accused is or is not involved in the crime, which he stands charged with. 9. In the backdrop of the unshaken evidence of PW 4 that the accused had informed him that he had killed his wife by means of a dao, when we notice the admission made by the accused as aforesaid, we see no reason not to place reliance on the evidence of PW 4. This apart, there is really no reason for PW 4 to falsely implicate the accused, particularly, when even the accused admits that he had, indeed, given the information as PW 4 has attributed to the accused. 10. Coupled with the above, the evidence of the doctor (PW 1), who had conducted post mortem examination, on 17.4.2000, on the said dead body inter alia, reveals as under: Two transverse incised wound (adjacent to each other) in the middle of neck which separated the head from rest of the body except a piece of skin and muscles in the left side of neck. 11. It is also in the evidence of PW 1 that vertebrae, trachea, spinal cord, oesophagus, muscles, vessels and nerve were completely despatched. 12. In the question of the doctor (PW 1), the death, in the instant case, was caused due to shock and haemorrhage resulting from the injuries sustained, which were homicidal in nature. 13. 11. It is also in the evidence of PW 1 that vertebrae, trachea, spinal cord, oesophagus, muscles, vessels and nerve were completely despatched. 12. In the question of the doctor (PW 1), the death, in the instant case, was caused due to shock and haemorrhage resulting from the injuries sustained, which were homicidal in nature. 13. Thus, the post mortem examination also supports the statement, which the accused has made, for, the said deceased met with her death due to injuries sustained on her neck. Though the identity of the dead body, which was sent for post mortem examination, is not in dispute, we may point out that the evidence of the doctor is to the effect that the said dead body was identified by a relative of the deceased and this fact has not been disputed by the defence. We may also point out that though a controversy, with regard to the seizure of the alleged weapon of the offence, has been raised in this appeal, we do not attribute importance with this discrepancy, because of the fact that the evidence, as regard the circumstances, leading to the alleged seizure of the dao, had not been put to the accused at the time, when he was examined under Section 313 CrPC. When the incriminating circumstances, relating to the alleged seizure of the dao, had not been put to the accused, such circumstances could not have been considered against the accused by learned trial Court nor can these circumstances be considered by this Court as the appellate Court. 14. What emerges from the above discussion is that according to the evidence on record, coupled with the statement made by the accused-Appellant under Section 313 CrPC (1)(b), the death of the said deceased was due to blows given by the accused by a dao and that the injuries caused to her were sufficient to cause death in ordinary course of nature. 15. The question, which, now, arises is as to what offence, if any, the accused has committed. While determining the question as to what offence the acts of the accused constitute, it is necessary, once again, to take note of the statement of the accused recorded under Section 313(1)(b) CrPC. The accused, in his examination under Section 313(1)(b) CrPC, stated as under: What Babul Laskar said to Pratap Deb was true. While determining the question as to what offence the acts of the accused constitute, it is necessary, once again, to take note of the statement of the accused recorded under Section 313(1)(b) CrPC. The accused, in his examination under Section 313(1)(b) CrPC, stated as under: What Babul Laskar said to Pratap Deb was true. As she had beaten me, I, out of rage, killed my wife Chandra Kumari by cutting her in my house at the work place. Calling my wife Chandra Kumari, her father kept her confined. Coming home on the day of occurrence, my wife told me that she had come to kill me. When my wife attempted to hit me with a dao used in the house, I snatched the dao and gave her a strock. It hit her neck and cut the same. My wife died. I did not hit her with the dao with the intention to kill her. 16. From the statements extracted above, it is seen that the accused stated that his wife had beaten him with a dao and, out of anger, he snatched away the dao and struck her with the dao, which fell on her neck, cut her neck and she died. The accused asserts that he did not hit his wife with the dao with intention to kill her. 17. Keeping in mind as to what the accused has stated, when we turn to the evidence of the doctor (PW 1), what we notice is that the said deceased had sustained two transverse incised wounds, adjacent to each other, at the middle of her neck and the same were so severe that it separated the head from the rest of the body. The findings of the doctor are not in dispute. If the findings, so given, are considered, in the light of the statement made by the accused, in his examination under Section313(1)(b) CrPC, it clearly transpires that notwithstanding the fact that the accused has stated to have given only one stroke and that too, without intention to kill his wife, the evidence on record speak, loud and clear, that the accused gave not only one, but two blows on the neck of his wife and the blows were so severe that it separated the head from the rest of the body. Considering the vital part of the body on which the blows were given, the number of blows dealt with, the nature of weapon used, the severity and force with which the blows were dealt with, we can have no escape from the conclusion and we entertain no doubt in our mind that the accused did not intend to kill his wife. 18. The question, however, still remains as to whether such act of the accused constitutes offence of murder or the offence of culpable homicide not amounting to murder. While considering this aspect of the case, it is noteworthy that when the admission of the accused, made under Section313(1)(b) CrPC, that he had killed his wife, is being taken into account, the remaining part of his statement that his wife had beaten him and dealt a blow on him, cannot be ignored unless the same is belied or contradicted by other evidence on record. In the present case, it is the assertion of the accused that it was his wife, who had beaten him and when she tried to kill him with the dao, he snatched the dao and struck a blow on his wife with dao, which killed his wife. In the context of the facts and circumstances of the present case, we are of the view that the probabilities of the accused telling the truth that he happened to kill his wife in anger and it was his wife, who had, first, beaten him and attempted to kill him with the dao, cannot be boldly excluded. Situated thus, we are of the considered opinion that the accused had given the blows, on his wife, with the dao with intention to kill her, but the blows were given without any premeditation, at the spur of the moment, arising out of a sudden quarrel. Such being the case, the acts of the accused fall, to our mind, within Exception 4 to the offence of murder as defined in Section 300 IPC. In consequence of the conclusion, which we have so reached, it can be safely held that the offence, committed by the accused-Appellant, was culpable homicide not amounting to murder and falls under Section 304 (Part-I IPC), for, an offence, under Section 304 (Part-I IPC), is complete, when the offence of culpable homicide, not amounting to murder is committed with intention to cause death. Such an offence is punishable with imprisonment for life or imprisonment of either description for a term, which may extend to ten years. 19. What follows from the above discussion is that though the learned trial Court has convicted the accused under Section 302 IPC, the evidence on record, when considered in the light of the statement of the accused, made under Section 313(1)(b) CrPC, does not make out a case of murder; rather, his acts constitute commission of an offence punishable under Section 304 (Pt. I) IPC. 20. We, therefore, allow this appeal partly. We set aside the conviction of the accused-Appellant under Section 302 IPC and also the resultant sentence passed against him. We hold the accused-Appellant guilty of offence under Section 304 (Pt. I) IPC and convict him accordingly. 21. Coming to the question as to what sentence shall be passed against the accused-Appellant, we notice that the accused has been in custody for a little over 8 years. In the attending circumstances of the present case, we are of the view that interest of justice would be well served if the accused-Appellant is sentenced to imprisonment for the period of imprisonment, which he has already undergone. 22. In the result and for the reasons stated above, the accused-Appellant is hereby sentenced to imprisonment for the period, which he has already undergone. The accused shall accordingly be set a liberty if he is not required to be detained in connection with any other case. 23. With the above observations and directions, the appeal shall stand disposed of. 24. Send down the Lower Court records.