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2013 DIGILAW 347 (GAU)

Lakshman Rai v. State of Assam

2013-05-24

BROJENDRA PRASAD KATAKEY, M.R.PATHAK

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JUDGMENT Brojendra Prasad Katakey, J. 1. This appeal by the convict, who is in custody, is directed against the judgment of conviction dated 25.09.2008 passed by the learned Sessions Judge, Kamrup at Guwahati in Sessions Case No. 49(K)/2007, convicting the appellant under Section 302 IPC and sentencing him to under rigorous imprisonment for life and to pay a fine of Rs. 5,000/-, in default to undergo rigorous imprisonment for a further term of 6(six) months. The prosecution case, as it emerges from the first information report lodged on 04.06.2004 (Ext.-7) at 4 P.M., is that on 03.06.2004 at about 5 P.M. Shri Lakshman Rai (appellant) and his wife Babita Devi stabbed informant Smt. Kusuma Devi's (PW-3) husband Shri Kailash Rai with a dagger, who was declared dead when taken to the hospital. On receipt of the said F.I.R. Noonmati Police Station Case No. 158/2004 was registered under Section 302/34 IPC. During investigation the police recorded the statements, under Section 161 Cr.P.C., of the persons who are acquainted with the facts of the case and also arrested the appellant, who initially absconded. The dead body was also sent for post mortem examination. On completion of the investigation, charge-sheet under Section 302/34 against the appellant and his wife was submitted on 30.09.2005. The case being exclusively triable by the Court of Sessions, the learned Sub-Divisional Magistrate (S) No. 1, Guwahati on 14.02.2007 committed the same to the Court of Sessions and accordingly Sessions Case No. 49(K)/2007 has been registered. 2. On 17.03.2007 the learned Sessions Judge has framed charge under Section 302/34 IPC only against the present appellant, though the charge under Section 302 only ought to have been framed. The charge when read over and explained to the accused appellant, he denied the same and claimed to be tried. Hence the trial commenced. 3. The prosecution in order to bring home the charge, against the appellant, examined 8(eight) witnesses, namely, Shri Jitendra Rai (PW-1), brother of the accused; Dr. The charge when read over and explained to the accused appellant, he denied the same and claimed to be tried. Hence the trial commenced. 3. The prosecution in order to bring home the charge, against the appellant, examined 8(eight) witnesses, namely, Shri Jitendra Rai (PW-1), brother of the accused; Dr. Putul Mahanta (PW-2), who conducted the autopsy on the body of the deceased and submitted the post mortem report (Ext.-1); Smt. Kusum Devi (PW-3), mother of the accused and the wife of the deceased; Shri Bhabesh Kakati (PW-4), a resident of the locality, who saw the accused running away and chased by some people; Shri Abed Ali (PW-5), another resident of the locality; Shri Basistha Roy (PW-6), who is the witness to the inquest (Ext.-2); Shri Dilip Dutta (PW-7), the Officer-in-Charge of Satgaon Police Outpost, who submitted the charge-sheet and Shri Dhirendra Narayan Deb (PW-8), the investigating officer, who conducted the investigation, on the basis of which the PW-7 has submitted the charge-sheet. The defence though cross-examined the witnesses examined by the prosecution, no defence witness, however, has been examined. The statement of the accused appellant under Section 313 Cr.P.C. has also been recorded. 4. The learned Sessions Judge, upon appreciation of the evidence adduced, has passed the judgment of conviction as aforesaid. Hence the present appeal. 5. We have heard Mr. I.A. Hazarika, learned amicus curiae, who has been engaged to argue the appeal on behalf of the accused appellant, appeal having been filed from the custody and the accused appellant being not represented by any learned counsel. We have also heard Ms. B. Bhuyan, learned Addl. P.P., Assam. 6. Mr. Hazarika, learned amicus curiae, referring to the deposition of PW-3 submits that she being the lone witness claimed to have seen the occurrence, it is not safe to base the conviction on the sole testimony of the PW-3, without there being any corroborative evidence and examination of any independent witness. The learned counsel further submits that even assuming that the conviction can be based on the sole testimony of the PW-3, there being grave and sudden provocation by the deceased, which deprived the accused from the power of self-control and the offence having been committed without the premeditation, the accused in any case cannot be convicted under Section 302 IPC and ought to have been convicted under Section 304 IPC. 7. On the other hand, Ms. 7. On the other hand, Ms. Bhuyan, learned Addl. P.P., supporting the judgment of conviction passed by the learned Sessions Judge and referring to the evidence of PWs-1 and 3 submits that there is no evidence at all even to suggest the provocation by the deceased, not to speak of grave and sudden provocation, resulting in deprivation of the power of self-control by the accused, so as to convict the accused appellant under Section 304 IPC. It has also been submitted that the conviction can be based on the testimony of a sole eye witness, provided the witness is trustworthy and the evidence is reliable. In the instant case, according to the learned Addl. Public Prosecutor, there being no other person present at the place of occurrence other than the PW-3, mother of the accused and the wife of the deceased, who has seen the occurrence, conviction can be based on her sole testimony as her testimony is reliable and trustworthy. The learned Addl. P.P., therefore, submits that the appeal preferred by the appellant deserves to be dismissed. 8. We have considered the submissions advanced by the learned counsel for the parties and also perused the evidence on record. 9. PW-2 Dr. Putul Mahanta, who conducted the autopsy and submitted the post mortem report (Ext.-1), in his deposition, has narrated the injuries found on the person of the deceased. He has deposed, on the basis of the Ext.-1, that he found the following three injuries on the person of the deceased: 1) Stab would (4X2.5) cm X abdominal cavity deep over left side of the abdomen 10 cm from midline 14 cm below the left nipple. Stomach and part of the anterior is perforated. 2) Stab would of (4X2.5) cm X abdominal cavity deep over front of the abdomen 3 cm right from midline 7 cm from right nipple liver lacerated. 3) Stab would (3X2) cm thoracic cavity deep 5 cm right from midline 2 cm from right nipple (below). Right lung upper lobe is lacerated. The pleural cavity is full of liquid and clotted blood. Blood stain found at the wound margins resist water washing. The direction of injury was right to left and above downwards. 3) Stab would (3X2) cm thoracic cavity deep 5 cm right from midline 2 cm from right nipple (below). Right lung upper lobe is lacerated. The pleural cavity is full of liquid and clotted blood. Blood stain found at the wound margins resist water washing. The direction of injury was right to left and above downwards. This witness has also opined that the death was due to shock and hemorrhage resulting from the injuries sustained, which are ante mortem and caused by sharp and pointed weapon and homicidal in nature. PW-2 has also opined that the injuries described in the post mortem report are sufficient to cause death in the ordinary course of nature. The defence did not cross-examine this witness at all. Hence the defence has not disputed the injuries found on the person of the deceased as well as the cause of death. 10. It is now required to be scrutinized, on the basis of the evidence adduced, whether the accused appellant is the perpetrator of the crime or whether he ought to have been convicted under Section 304 IPC, instead of Section 302 IPC. PW-3 Smt. Kusum Devi, mother of the accused and the wife of the deceased, in clear term has stated that she saw the occurrence while she came out of her room on hearing the cry of her husband. She has further stated that she saw the accused inflicting 2/3 blows on the chest as well as on the stomach of her husband. This witness during examination-in-chief has also stated that the accused has inflicted the blows as her husband had asked her daughter-in-law (wife of the accused) not to scold her daughter. The defence though cross-examined this witness no contradiction could be brought out so as to disbelieve the testimony of this witness. During cross-examination this witness has even denied the suggestion that it was Babita (wife of the accused), who inflicted the injuries and not her son (accused). There is no reason as to why the mother will falsely implicate her son. No previous enmity or strain relationship except that the accused wanted to be separated (statement of the PW-1), could be proved by the defence either during cross-examination of the prosecution witnesses or by adducing any defence evidence. There is no reason as to why the mother will falsely implicate her son. No previous enmity or strain relationship except that the accused wanted to be separated (statement of the PW-1), could be proved by the defence either during cross-examination of the prosecution witnesses or by adducing any defence evidence. The evidence of PW-3 being reliable and trustworthy, the conviction can be based on the sole testimony of the PW-3, more so when there is no evidence on record even to suggest the presence of any other person at the time of occurrence. 11. The contention of the learned amicus curiae, that, having regard to the evidence of PWs-1 and 3, the accused appellant ought to have been convicted under Section 304 IPC instead of 302 IPC, also cannot be accepted, for the simple reason that the conviction under Section 304 IPC can be recorded only when culpable homicide is not murder. Culpable homicide is not murder provided it comes within any of the four exceptions to Section 300 IPC. To come within the 1st exception to Section 300 IPC it must be proved that there was grave and sudden provocation of the accused which deprived the accused of his power of self-control. Similarly, to come within the 4th exception, it is required to be proved that the offence has been committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. 12. In the instant case, except the evidence of PW-1, Shri Jitendra Rai, that the accused wanted separation from the family and the evidence of PW-3 Smt. Kusum Devi that the accused inflicted the dagger blows as the deceased had asked the wife of the accused not to scold her daughter, there is no evidence even to suggest provocation, not to speak of grave and sudden provocation, or a sudden fight or the sudden quarrel, to bring the case of the accused either within Exception-1 or Exception-4 to Section 300 IPC. Exceptions-2 and 3, on the facts of this case is not at all applicable. 13. In view of the aforesaid discussion, we do not find any merit in the appeal either to set aside the conviction or to alter the conviction from 302 IPC to 304 IPC. Hence the appeal stands dismissed. 14. Exceptions-2 and 3, on the facts of this case is not at all applicable. 13. In view of the aforesaid discussion, we do not find any merit in the appeal either to set aside the conviction or to alter the conviction from 302 IPC to 304 IPC. Hence the appeal stands dismissed. 14. Before parting, we place on record our appreciation to the service rendered by Mr. I.A. Hazarika, learned amicus curiae, who shall be entitled to the fee of Rs. 5,000/-, payable by the Govt. of Assam. Registry is directed to send down the records. Appeal dismissed