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2011 DIGILAW 144 (GAU)

Madhab Deori v. State of Assam

2011-02-23

A.K.GOSWAMI, MADAN B.LOKUR

body2011
JUDGMENT Madan B. Lokur, C.J. 1. This is an appeal against the judgment and order dated 5.2.2005 passed by the Sessions Judge, Morigaon in Sessions Case No. 63/2004 whereby the appellant was convicted for having murdered his elder widowed sister Suala Dekaraja by assaulting her with a dao. The appellant is convicted and sentenced to life imprisonment and to pay a fine of Rs. 5,000 and in default to undergo rigorous imprisonment for another two months. 2. The case of the prosecution is that the victim was the elder widowed sister of the appellant and she was staying with him in his house. On the day of occurrence that is on 10.3.2004, when the appellant came back from fishing and was apparently hungry, he asked his sister whether there was any rice available. She picked up her dao and went outside the house to cut firewood. Apparently, at this point, the appellant snatched the dao from her hand and hit her on the head, wounding her grievously. 3. On receiving the injury, the victim ran out of the house and fell down near the school in front of the gate of PW6, Kolia Konwar. While running away from the house, she was screaming and was heard by some witnesses that her younger brother that is the appellant, had cut her. 4. After she fell down in front of the gate of PW6, Kolia Konwar, she was unable to speak. She was then taken to a private hospital and then shifted to a larger hospital in Nagaon where she succumbed to her injuries. 5. The injuries suffered by the victim given in the post mortem report are as follows : A dead body of a female person of about 26 years, rigor mortis present. Eyes closed. Injury No. 1 : There is an incised wound in the palmer aspect of index and middle fingers of right hand in first phalanges. Injury No. 2 : The ring finger of left hand is detached except by a flap of skin in the dorsal aspect at the first interphalangeal joint. Injury No. 3 : two wounds both stitched one from middle of the occipital bone up to 2" above the left car, 5 nos of stitches are present. The other extends from the middle of the occipital bone on left side of the head up to left ear. 4 nos of stitches present. Injury No. 3 : two wounds both stitched one from middle of the occipital bone up to 2" above the left car, 5 nos of stitches are present. The other extends from the middle of the occipital bone on left side of the head up to left ear. 4 nos of stitches present. On opening the wounds, there is linear fracture in the occipital bone. The membrane and brain tissues in the occipital region are lacerated. Ante-mortem blood clots are found firmly adherent to the tissues in and around the sides of injuries. In my opinion, death is due to shock and haemorrhage as a result of injuries. 6. The prosecution examined as many as 12 witnesses in support of its case. 7. PW1, Purna Kanta Dekaraja is a resident of the same village and he came out of his house when he heard hulla. At that time, he saw the victim coming out her house crying that the appellant had cut her. She then sat near the school with her hand no her head. She then fell down near the school and could not speak. Some persons gathered in the locality and took her to a hospital and on the same day, she passed away. 8. PW2, Smt. Honma Phukan is the niece of the victim. She confirmed that the victim and the appellant used to live together in the same house. She stated in her testimony that the appellant had returned from fishing and the victim came out of the house with a dao in her hand to cut firewood and reached the door. At that time, the appellant laid her down and snatched the dao from her and hit her on the head. While the victim was trying to protect herself, two fingers of her left hand were cut. Thereafter the victim ran out of the house and fell down near the school. 9. PW4, Rongman Bordoloi is also a resident of the same village and he too heard some hulla and when he came out, he heard the victim crying that the appellant had assaulted her. Thereafter, she fell down in front of the gate of PW6, Kolia Konwar. This witness saw injuries on the head and left hand of the victim and he also saw the appellant fleeing from his house with a dao in his hand. 10. Thereafter, she fell down in front of the gate of PW6, Kolia Konwar. This witness saw injuries on the head and left hand of the victim and he also saw the appellant fleeing from his house with a dao in his hand. 10. PW6, Kolia Konwar saw the victim falling at the gate of his house. He saw severe bleeding coming from her head. This witness did not directly implicate the appellant saying that he heard that the appellant had attacked the victim. 11. PW7, Biju Gaonkhowa also supported the case of the prosecution but the Trial Judge did not believe him and has not relied on his testimony. 12. Having regard to the evidence on record, we are required to decide the offence committed by the appellant. At this stage, it would be worth noticing that in his statement recorded under section 313 of the Cr.PC, the appellant was told that he was charged with the culpable homicide of his elder sister Suala Dekaraja. The appellant stated that he did cause injuries on his elder sister with a dao but he did not know about her death. 13. From the nature of the injuries sustained by the victim, the relationship of the victim with the appellant as well as the testimony of the witnesses, it appears to us that the appellant cannot be found guilty of culpable homicide as defined under section 299 of the IPC. The relevant portion of this section reads as follows : Culpable homicide. - Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. The appellant certainly did not intend to cause the death of his elder sister, nor did he intend to cause such bodily injury as was likely to cause her death. He had no knowledge, while hitting her head with a dao that perhaps she would succumb to the injuries. The blow administered by him was not very severe as can be seen from the fact that it was not intense enough to even sever the fingers of the victim when she tried to save herself. 14. He had no knowledge, while hitting her head with a dao that perhaps she would succumb to the injuries. The blow administered by him was not very severe as can be seen from the fact that it was not intense enough to even sever the fingers of the victim when she tried to save herself. 14. So far as the relationship between the victim and the appellant is concerned, it has come on record that the victim was the widowed elder sister of the appellant and was living with him since she had no other shelter. It has come on record that the victim had another brother who was living independently but nevertheless the victim lived with the appellant. There is no evidence that the relationship between the victim and the appellant was not cordial. Taking these factors into consideration, we are of the opinion that this is not a case of culpable homicide, let alone that of culpable homicide amounting to murder, as contended by the learned Public Prosecutor. 15. The question that now confronts is whether this is a case that fall within the provisions of section 304A of the IPC or within the provisions of section 320 read with section 326 of the IPC. 16. From the evidence on record, it is clear that the weapon of assault used by the appellant was a dao and it was used for cutting firewood. In fact the victim came out of the house to cut firewood. The appellant so used the weapon as to cause an injury to the victim which would not, ordinarily, result in the death of the victim. It is true that the dao blow was inflicted on the head of the victim as mentioned above, but the fingers of the left hand of the victim intervened, as it were. The blow was not strong enough to sever her fingers. The fact that the victim succumbed to the injury cannot lead to the conclusion that the appellant had the intention or knowledge that his action would kill his sister. 17. There can be no doubt that the appellant voluntarily caused a grievous injury to the victim, Suala Dekarajan, by hitting her with a dangerous weapon such as a dao. The victim was taken to a hospital where she unfortunately passed away. 17. There can be no doubt that the appellant voluntarily caused a grievous injury to the victim, Suala Dekarajan, by hitting her with a dangerous weapon such as a dao. The victim was taken to a hospital where she unfortunately passed away. It seems that the injuries were not treated to be rather serious and only a few stitches were given on the wounds inflicted on the victim, both on her head and hand. The injury on the head was about two inches long and required only five stitches and another injury on the hand required four stitches. It is true that there was fracture in the bone as pointed out by the learned Public Prosecutor but this was only a linear fracture. 18. Accordingly, we are of the opinion that the appellant does not deserve conviction under section 302 of the IPC but deserves to be convicted under section 320 read with section 326 of the IPC for causing grievous hurt to Suala Dekarajan. We hold accordingly. 19. We are told that the appellant has been in custody since 11.3.2004 and he has, therefore, put in almost seven years in custody. In our opinion, this is adequate punishment for the appellant for the crime committed by him and we, therefore, sentence him to imprisonment for the period already undergone, the appeal is allowed in terms of the above. Trial Court records be sent back forthwith. 20. The learned amicus curiae will be entitled to a remuneration of Rs. 5,000 from the Assam State Legal Service Authority.