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Gauhati High Court · body

2010 DIGILAW 82 (GAU)

Sriram Mura v. State of Assam

2010-02-05

AMITAVA ROY, C.R.SARMA

body2010
JUDGMENT Amitava Roy, J. 1. Under assailment is the judgment and order dated 30.6.2004 passed by the 1st Addl. Sessions Judge (Ad hoc), Sibsagar in Sessions Case No. 19 (S-C/2004 convicting accused-Appellant under Section 302 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for Life and also to pay a fine of Rs. 5,000, in default, to suffer R/I for further 6 (six) months. 2. We have heard Mr. U. Das, learned amicus curiae for the accused-Appellant and Mr. D. Das, learned Public Prosecutor for the State. 3. The prosecution case is traceable to an FIR lodged on 5.10.2003 by one Sri Bidya Majhi with the Officer-in-Charge, Sapekhati Police Station alleging that on the previous day at about 3 P.M. his son-in-law Shri Sriram Mura (accused-Appellant) had hacked his (accused-Appellant) wife Smt. Beena Mura with a dao in the courtyard of one Heera Mura, following which, the injured had succumbed to her injuries. On the FIR, Sapekhati Police Station registered Sapekhati P.S. Case No. 45/2003 under Section 302 of the Indian Penal Code and on the completion of the investigation, charge sheet was laid against the accused-Appellant under the above provision of law. He having denied the charge framed against him under the said section of the Indian Penal Code by the learned court, the prosecution examined its witnesses in support of its case. In course of the investigation, the confessional statement of the accused-Appellant was also recorded under Section164 of the Code of Criminal Procedure. On the completion of the recording of the evidence of the prosecution witnesses, the statement of the accused-Appellant under Section 313, Code of Criminal Procedure was recorded. The learned trial court on a consideration of the materials on record, convicted and sentenced the accused-Appellant thereafter by the judgment and order impugned herein. 4. The learned amicus curiae while conceding that the confessional statement of the accused-Appellant recorded under Section 164, Code of Criminal Procedure, is in compliance of the requirements of the said provision of the Code, has argued that the omission on the part of the prosecution to examine any independent witness, vis-a-vis the incident has rendered it's case untrustworthy and, therefore, the impugned judgment and order ought to be interfered with in the interest of justice. He further urged, without prejudice to the above, that as the circumstances in which the incident had occurred, indicate that at the relevant point of time the accused-Appellant had been sufficiently provoked by the deceased, even if he is proved to be the assailant, his conviction under Section 302 of the Indian Penal Code for murder is wholly unsustainable. 5. The learned Public Prosecutor, in reply has argued that a bare reading of the confessional statement, Ext.3, the evidence of PW9 which demonstrates an extra-judicial confession by the accused-Appellant and his (accused-Appellant) statements under Section 313, Code of Criminal Procedure decisively prove the charge against him and, therefore, his conviction and sentence being unassailable in law, the appeal ought to be dismissed. 6. A brief reference to the evidence on record is unavoidable. PW1 Smt. Rina Hazarika who at the relevant time had been posted as the Sub-Divisional Judicial Magistrate at Charaideo, Sonari in her testimony stated in categorical terms to have recorded the confessional statement of the accused-Appellant. She has recited in details the steps taken by her as legally prescribed for cautioning the accused-Appellant and explaining to him the consequence of his making the confession. This witness has also stated about the time accorded to the accused-Appellant for reflection of more than one occasion. According to this witness, the confessional statement was recorded by her after being fully satisfied that the accused-Appellant was willing to make the confessional statement voluntarily. She proved the confessional statement, Ext.3 with the L.T.I. of the accused-Appellant thereon. She also proved her signature on Ext.3 and in particular under the certificate in the form prescribed. 7. PW2 Shri Benu Paul, PW3 Shri Raju Rajbangshi, PW4 Shri Daud Munda @ Mura have stated, in substance to be present at the police station when the accused-Appellant had surrendered himself thereat with the weapon of assault, i.e., the dao in his hand and had confessed about cutting his wife therewith. These witnesses have proved the seizure list, Ext.4 with their respective signatures thereon. They have also identified the seized Dao as M. Ext.1. PW4 in his cross-examination, however, had stated that the deceased, consuming liquor sometime picked up quarrel with the accused-Appellant. 8. PW5 Shri Bidya Majhi proved the FIR, Ext.5 with the signature. He also proved the Inquest report, Ext.6. He also corroborated the factum of surrender of the accused-Appellant at the police station. PW4 in his cross-examination, however, had stated that the deceased, consuming liquor sometime picked up quarrel with the accused-Appellant. 8. PW5 Shri Bidya Majhi proved the FIR, Ext.5 with the signature. He also proved the Inquest report, Ext.6. He also corroborated the factum of surrender of the accused-Appellant at the police station. In cross-examination, this witness, as well stated about frequent quarrels between the accused-Appellant and his wife following intake of liquor by them PW6 Shri Dwipen Bora who is the writer of the FIR proved the said document with his signature. He also proved the Inquest report, Ext.6. PW7, Smt. Debari Mura is a reported witness of the incident and, therefore, her testimony does not deserve to be dealt in details. PW8 Dr. Babul Ch. Saikia who had performed the post mortem examination found the following injuries on the dead body: (a) One incised would on the back of her neck in right side. Size 10cm x 1.5cm x deep into the vertebra. The vertebra is partially cut. (b) One incised would in the deltoid region of right arm. Size 5 cm x 5cm x muscle deep. (c) One incised would below the wound No. 6 in the arm. Size 3cm x 5cm x muscle deep. (2) Cranium and spinal canal. The spinal cord is partially incised in the neck. He opined that death had occurred due to shock and haemorrhage as a result of the injuries sustained. He proved the post mortem examination, Ext.7. He confirmed that the injuries found on the dead body had been caused by weapon which could be identical to M. Ext.1. In his cross-examination this witness stated that with the injuries sustained there was no chance of survival of the deceased, even if proper medical treatment would have provided to her. 9. PW9 Shri Basanta Kr. Handique testified that one day at about 3 p.m. during, the Durga Puja the accused-Appellant had disclosed to him that he had cut his wife, following which, the witness advised him to surrender before the police. This witness is the owner of the tea estate in which the accused-Appellant and the deceased used to work. PW10 Shri Reba Kanta Deka is the investigating officer who amongst others has proved the G.D. Entry, Ext.8 that was made following the surrender of the accused-Appellant with the weapon of assault. This witness is the owner of the tea estate in which the accused-Appellant and the deceased used to work. PW10 Shri Reba Kanta Deka is the investigating officer who amongst others has proved the G.D. Entry, Ext.8 that was made following the surrender of the accused-Appellant with the weapon of assault. According to him, the accused-Appellant also disclosed to have killed his wife after a quarrel. This witness stated to have seized the dao by the Ext.4. 10. As would be noted from the deposition of the investigating officer, PW10, the G.D. Entry, Ext.8 had been made on the basis of the information lodged about the incident by the accused-Appellant himself admitting to have assaulted his wife by a dao following a quarrel. A bare reading of this document (Ext.8) bears out the correctness of the testimony of PW10. Noticeably, the FIR dated 5.10.2003 lodged on the next day is also in. conformity with the contents of the G.D. Entry and, therefore, complements the same. The consistency in the versions of the FIR and the G.D. Entry, in our opinion lends credibility to the prosecution case to start with. 11. On a reading of the evidence of PW1 as a whole, we do not see any reason to doubt the inherent worth thereof. According to us, the learned Magistrate had fully complied with the requirements prescribed by law as the prerequisites for recording the confessional statement under Section 164 of the Code of Criminal Procedure. The accused-Appellant in his confessional statement had stated as hereunder: "My name is Sriram Mura. On last Saturday I was at home because of the illness of the eyes. It was the day of the Durga Puja. At about 3.30 p.m. my wife came after enjoying puja and consuming liquor to my house. She quarreled with me. She went to tell about it to her parents house. I asked her not to do so but she turned a deaf ear. Then out of anger, I dealt a blow in her neck with a dao. She fell down. I went to the P.S. on a bicycle. Later, keeping the Bicycle in the residence of the manager. I stated about the occurrence to him. Manager advised me to go to the P.S. I went to the P.S. I stated in the P.S. that I had come after killing my wife. She fell down. I went to the P.S. on a bicycle. Later, keeping the Bicycle in the residence of the manager. I stated about the occurrence to him. Manager advised me to go to the P.S. I went to the P.S. I stated in the P.S. that I had come after killing my wife. I have given this confession on my own." 12. The above extract demonstrates an unqualified confession by the accused-Appellant of his guilt. Having regard to the fact that the same was recorded in full compliance of the prescriptions of law and that it does hot admit of any doubt of its truthfulness or voluntariness, we are of the unhesitant opinion, that the same per se can form the sole basis of conviction of the accused-Appellant. 13. Further, it is significant to notice that in course of his statement under Section 313 of the Code of Criminal Procedure the accused-Appellant had affirmed that his confession made before the learned Magistrate had been voluntary and without any reservation being fully aware of the consequences thereof. This coupled with the contents of the G.D. Entry, Ext.8 and the evidence of the PW9 as quoted hereinabove, we are of the view that the prosecution has been able to prove beyond all reasonable doubt that the accused-Appellant had been the assailant of his wife and that he hacked her with a dao following which the injured died of the injuries sustained by her. 14. The above, notwithstanding, in the face of the evidence disclosing the genesis of the actual incident, we have heard the learned Counsel for the parties on the provision of law under which the accused-Appellant in the facts and circumstances of the case ought to be convicted. On an assessment of the evidence on record, which in clear terms reveal that the deceased was in the habit of getting drunk very often and pick up quarrel with the accused-Appellant now and then and that on the date of the occurrence she had gone out of the house early in the morning and had returned inebriated and that the incident had occurred following a quarrel with the accused-Appellant, we are inclined to take a view that his conviction ought to be under Section 304, Part-I of the IPC. This we decide, as we have noticed that the accused-Appellant in spite of being sufficiently provoked by the disagreeable conduct of his intoxicated wife had resorted to multiple assaults with a sharp cutting weapon, which demonstrates his intention of doing away with her forever. The opinion of the medical witness to the effect that the injuries sustained by the deceased were such that the injured could not have been saved even with the best of the medical treatment endorses our above view. 15. On a totality of the considerations, as above, we are, thus, of the opinion that it is a fit case where having regard to the attending facts and circumstances, the conviction of the accused-Appellant ought to be converted into one under Section 304, Part-I of the Indian Penal Code. Ordered accordingly. 16. Though, we have held that the accused-Appellant was provoked by the abominable behaviour and conduct of the wife to the extent of being deprived of his power of self-control, he had visibly acted in excess in dealing multiple blows on her with the clear intention of killing her. In that view of the matter, according to us, it would meet the ends of Justice if the sentence of corporal punishment is reduced to that of 10 years. We, however, sustain the sentence of fine. 17. In the result, the accused-Appellant is convicted under Section 304, Part-I of the Indian Penal Code and is ordered to suffer in all 10 (ten) years rigorous imprisonment and also to pay a fine of Rs. 5,000 (five thousand), in default, to undergo rigorous imprisonment for another 1 (one) month. 18. The impugned judgment and order stands modified to the above extent. The appeal is, thus, partially allowed. 19. We hereby place on record our appreciation for the assistance rendered by the learned amicus curiae and order payment of his fee therefore which we assess at Rs. 3,500.00. 20. A copy of the judgment be furnished to Mr. Utpal Das, learned amicus curiae. The Registry would do the needful.