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2013 DIGILAW 575 (GAU)

Petuka Kharia v. State of Assam

2013-08-16

B.D.AGARWAL, M.R.PATHAK

body2013
JUDGMENT B.D. Agarwal, J. 1. The judgment dated 13.10.2010 passed by the learned Sessions Judge, Jorhat in Sessions Case No. 48 (J-J) of 2009 is under challenge in this appeal. By this impugned judgment the appellant has been convicted under Section 302 of the Indian Penal Code and he has been sentenced to undergo Imprisonment for Life and also to pay fine of Rs. 5,000/- with default stipulation further RI for two months. Being aggrieved by the conviction and sentence, the appellant has preferred this appeal from jail. Heard M. J. Islam, learned Amicus Curiae for the appellant and Mr. NJ Dutta, learned Addl. PP, Assam. We have also gone through the impugned judgment and the prosecution evidence on record. 2. The prosecution case in brief is that on the relevant night both the accused and the appellant were staying together in the same house, having two rooms. The deceased was found dead in the morning and the accused insisted the villagers for the cremation of the deceased. It may be mentioned herein that both the deceased and the accused were brothers. However, the villagers noticed cut wounds on the dead body and, as such, villagers informed the police and did not allow the accused to complete the cremation of the deceased. Subsequently, a written FIR was lodged by a co-villager and on the basis of this FIR post-mortem examination of the dead body was conducted and charge-sheet was filed. 3. The defence case was that on the relevant day the deceased had a quarrel and marpit with one Takala and the offence of murder might have been committed by the said Takala. However, the accused did not give any evidence in defence by way of examining Takala or any other witness to prove the fact of altercation, quarrel or marpit in between the deceased and Takala. On the other hand, the prosecution examined seven witnesses to prove the offence. 4. PW 6 is the doctor, who conducted autopsy on the dead body. During post-mortem examination the doctor found one cut wound on the right ear, two cut wounds on the frontal bone and one cut wound on parietal bone. In the opinion of doctor all the wounds were ante-mortem in nature and might have been caused by sharp weapon. Doctor has further opined that the person might have died instantaneously. During post-mortem examination the doctor found one cut wound on the right ear, two cut wounds on the frontal bone and one cut wound on parietal bone. In the opinion of doctor all the wounds were ante-mortem in nature and might have been caused by sharp weapon. Doctor has further opined that the person might have died instantaneously. In view of this medical opinion it is a clear case of culpable homicide with an intention to cause death of the victim. 5. PW 3 is the immediate neighbour. This witness has deposed that on one morning the appellant came to his house and reported that his brother had died due to epilepsy. When the PW 3 visited the house of the accused he saw the deceased with cut injuries. Hence, he prevented the accused from cremating the dead body. 6. In view of the testimony of PW 3 it is clear that the incident took place in part one of the residential house of the accused. In our considered opinion, if a third person had committed the offence the accused and his wife should have heard the outcry of the deceased since they were sleeping in the adjacent room. However, the accused gave a different story to PW 3 and also to the co-villagers and was also interested for cremating the dead body quickly. These circumstances lead to the conclusion that the offence was committed by the accused and none else. 7. PW 2 is the wife of the accused and she has been declared hostile since she gave a different story in the court than what was stated before the police and before the learned Judicial Magistrate under Section 164 of the Criminal Procedure Code. In those statements PW 2 had stated that on the relevant night the deceased was sleeping in their house, albeit, in another room and a quarrel had taken place in between the deceased and her husband. Thereafter she came out of the house to inform the neighbours and when PW 2 returned home she found that her husband was not at home. In this way the accused absconded from the scene after committing the crime. PW 2 has admitted in the re-examination about giving a statement before the learned Judicial Magistrate. Though PW 2 was declared hostile by the prosecution still the statements given before the learned Judicial Magistrate cannot be totally overlooked. 8. In this way the accused absconded from the scene after committing the crime. PW 2 has admitted in the re-examination about giving a statement before the learned Judicial Magistrate. Though PW 2 was declared hostile by the prosecution still the statements given before the learned Judicial Magistrate cannot be totally overlooked. 8. We have already narrated earlier that the deceased was found in an injured condition in the house of the accused and no evidence in defence was given by the accused to support his defence that the incident might have been committed by one Takala or any other person. 9. From the evidence of the prosecution witnesses it is clear that the Investigating Officer failed to ascertain the actual motive for committing the crime. However, in her statement before the I.O. and before the learned Judicial Magistrate the wife of the accused has stated that there was a quarrel in between two brothers. In our considered opinion the incident must have been committed in the midst of quarrel. Hence, Exception 4 to Section 300 of the IPC is attracted. 10. Resultantly, the conviction of the appellant is converted from Section 302 IPC to 304 Part-I IPC. Hence, the sentence is also reduced to 10 (ten) year RI. However, the fine amount and the default sentence shall remain as awarded by the trial court. 11. With the aforesaid modification in the conviction and sentence the appeal stands dismissed. 12. Since the record does not reveal that the deceased is survived by any dependant we refrain from awarding compensation under Section 357A of the Criminal Procedure Code. In our considered opinion if the compensation amount is awarded it will be taken by the appellant or his wife. Before parting with the record it is ordered that the learned Amicus Curiae shall be entitled to one day's hearing fee. Appeal dismissed.