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2012 DIGILAW 432 (GAU)

Ashok Patra @ Tanti v. State of Assam

2012-04-03

A.C.UPADHYAY, ADARSH KUMAR GOEL

body2012
JUDGMENT A.C. Upadhyay, J. 1. This appeal is directed against the judgment and order dated 20.7.2006 passed by the learned Addl. Sessions Judge, Jorhat, in Sessions Case No. 18(J-J)/06, whereby the accused appellant was convicted under Section 302 IPC, sentenced to undergo imprisonment for life and to pay a fine of Rs. 2000/- in default to undergo rigorous imprisonment for another 6 months. An FIR relating to killing of Smt. Labonya Tanti by the accused/husband, resident of Natun line of Gotouja tea estate, was lodged by one Kishore Boruah, the then Factory Asstt. Manager of the garden. On the basis of the FIR, a case was registered and investigation was launched. 2. On completion of the investigation, the I/O submitted chargesheet under Section 302 IPC against the accused/appellant. The prosecution case is death of the deceased as a result of ante mortem injuries sustained. The fact of homicidal death of the deceased has not been challenged in this appeal. 3. Dr. Amal Kr. Phookan, PW.5 who carried out the post mortem examination on the dead body of the deceased found the following injuries : 1) Bruise 3 cm x 3 cm lateral to right eyebrow. 2) Transverse linear mark in the middle of the neck about 6 cm x 2 cm. On dissection the subcutaneous tissues shows parchmentisation (slightly rubber like in nature). Rigor mortis present. Injuries were ante mortem. Other organs were found healthy. 4. In the opinion of the Doctor, the death was due to asphyxia as a result of strangulation. 5. PW.1, Shiva Tanti, the father of the deceased, deposed that the accused and his daughter, deceased Labanya, got married 2 1/2 years before the occurrence. After the marriage, they were living in the house of PW. 1 happily as husband and wife. On the date of occurrence, PW. 1 had gone to the garden to attend his duty as labourer in the garden. On returning from work, he found his daughter lying dead in the bedroom having injuries beneath one eye and he also saw an iron wire besides the dead body. He did not find his son in law in the house. Seeing the gruesome scene, PW.1 raised alarm. The accused did not return home on that evening. Next morning, accused was apprehended by the police, while he was trying to hide in a room of a local LP school. He did not find his son in law in the house. Seeing the gruesome scene, PW.1 raised alarm. The accused did not return home on that evening. Next morning, accused was apprehended by the police, while he was trying to hide in a room of a local LP school. According to PW.1, the accused was also handed over a lathi and a wire which seized by the police. 6. PW.4, a neighbour of the deceased and the accused, who after coming from her garden duty, having seen the dead body of the deceased lying inside the house, informed PW.2, the then factory Manager of the tea garden. 7. PW.3, deposed that the accused handed over a lathi and a wire which was seized by the police vide seizure list, Exht. 1. 8. PW.6, the I/O deposed that on receiving the FIR in the police outpost, he made a GD entry and visited the place of occurrence. He found that after committing the murder the accused had fled away. The 10, PW6 further deposed that the accused was apprehended with the help of the local public from the place of hiding in the nearby LP school. 9. However, on conclusion of the evidence of the prosecution witnesses, the statement of accused was recorded under Section 313 CrPC and the accused/appellant in his statement accused categorically stated that before the incident he was not present in his house. After a little while, when he returned home, he saw one Babulal, a Bihari boy, who had a shop little distance away from their house, was having sex with his wife. When the accused charged the boy, his wife helped the boy to run away from the place of occurrence. According to the accused, he out of anger, hit his wife with a lathi and strangulated her with a wire. After that, he ran away from the place of occurrence. He admitted to have been apprehended by public on the next day. 10. Learned Amicus Curiae appearing for the appellant submits that if the statement of the accused recorded under Section 313 CrPC is believed, then it is apparent that the appellant acted on deep and sudden provocation, when he saw his wife in a compromising position with another man, which infuriated the appellant, thus compelling him to act on emotional outburst, to kill his wife. 11. 11. Adverting to the statement of the accused as recorded under Section 313 CrPC, and after going through the materials available on record and the evidence of the witnesses, we find that the sexual intercourse of the deceased with one Babulal, as stated by the appellant, is believable. Admittedly, the accused and the deceased were living very peacefully. Accordingly, we are of the considered opinion that the incident provoked the accused/appellant to deprive him from his self control. 12. The question that arises for consideration in this situation is that whether the provocation caused to the appellant can be said to be grave and sudden? The learned counsel for the appellant submitted that the element of suddenness, is to be determined with reference to the time of death as well as knowledge of the mischief done. Exception 1 to Section 300 IPC deals with grave and sudden provocation, In AIR 1962 Supreme Court 605 : K.M. Nanavati Vs. State of Maharashtra, the Supreme Court has laid down the test of grave and sudden provocation in the following words :- the test of "grave and sudden" provocation is whether reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. 13. The decisive factor in ascertainment of suddenness of provocation in the instant case would be whether irresistible impulse of the appellant undergoing emotional shock of having seen his wife sleeping with another gentleman. The provocation was deep and sudden, as frankly admitted by the appellant in his statement recorded under Section 313 of the code of Criminal Procedure. In absence of any evidence to the contrary available on record, it can be said that the appellant acted under grave and sudden provocation. The line of reasoning adopted by the trial Court in this behalf cannot be subscribed to. 14. In the facts and circumstances of the case, we are of the considered view that the accused had committed the offence on a deep and sudden provocation. Therefore, the conviction of the appellant under Section 302 of the Indian Penal Code cannot be sustained. It is liable to be modified. Accordingly, we modify the conviction of the appellant from Section 302 IPC to Section 304 Part-II IPC and sentence him to undergo imprisonment for a period of 7 years. Therefore, the conviction of the appellant under Section 302 of the Indian Penal Code cannot be sustained. It is liable to be modified. Accordingly, we modify the conviction of the appellant from Section 302 IPC to Section 304 Part-II IPC and sentence him to undergo imprisonment for a period of 7 years. However, the sentence of fine with default stipulation, imposed on the accused would remain as ordered earlier. 15. The appeal is partly allowed with the above modification of the conviction and sentence of the appellant. 16. Before parting with the judgment, we would like to appreciate the valuable assistance rendered by Mr. M.H. Choudhury, learned counsel as Amicus Curiae in arriving at the aforesaid decision. Accordingly, we direct the Legal Services Authority of the State to pay him a remuneration of Rs. 3,500/- as professional fees. Send down the records forthwith.