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2013 DIGILAW 74 (GAU)

Majanu Kalia v. State of Assam

2013-02-04

I.A.ANSARI, P.K.MUSAHARY

body2013
JUDGMENT Iqbal Ahmed Ansari, J. 1. This appeal is directed against the judgment and order, dated 6.2.2008, passed, in Sessions Case No. 27(T) of 2005, by the learned Sessions Judge, Tinsukia, convicting the accused-appellant under Section 302 IPC and sentencing him to suffer imprisonment for life and pay Fine of Rs. 1,000/- and, in default of payment of fine, suffer imprisonment for a period of two months. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under:- Deceased, Begula Choudhury, was the second wife of accused Majanu Kalia. The first wife of the accused died. On 07.02.2004, the dead body of Begula was found lying at her residential quarter, which was provided to her by the management of Hansura T.E. On finding the dead body, the younger brother of the deceased, namely, Krishna Choudhury (PW-1), lodged an Ejahar, in writing, at Doomdooma Police Station, alleging to effect, interalia, that the accused, Majanu Kalia, had assaulted Bagula Choudhury by a dao on different parts of her body and caused her dead. Treating the said Ejahar as First Information Report (in short, FIR), Doomdooma Police Station Case No. 27/2004, under Section 302 IPC, was registered against the accused During investigation, the police visited the place of occurrence, held inquest over the said dead body and prepared inquest report. During the course of investigation, the accused also made judicial confession. On completion of the investigation, police laid charge sheet, under Section 302 IPC, against the accused. 2. In support of their case, prosecution examined altogether 10 witnesses. The accused was, then examined under Section 313 Cr.P.C. and, in his examination aforementioned, he denied that he had committed the offence, which was alleged to have been committed, the case of the defence is that of total denial. In his statement, under Section 313 Cr.P.C., the accused also retracted his confession by contending that he had made confession, because of the fact that police had threatened to entangle his daughter if he declined to confess. The defence did not adduce any evidence. 3. Having found the accused guilty of the offence, which he stood charged with, learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence, which has been passed against him, the accused has preferred this appeal. 4. We have heard Mr. The defence did not adduce any evidence. 3. Having found the accused guilty of the offence, which he stood charged with, learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence, which has been passed against him, the accused has preferred this appeal. 4. We have heard Mr. S.K. Ghosh, learned Amicus Curiae, and Mr. D. Das, learned Addl. P.P., Assam. 5. While considering the present appeal, it may be noted that PW 8 is the doctor, who had, admittedly, conducted post mortem examination, on 9.2.2004, on the dead body of Begula Choudhury and found as follows: EXTERNAL INJURIES:- i) One incised wound measuring 4 x 1 cm x muscle deep present on the middle part of the left side of the neck. ii) One incised wound measuring 7 x 1 cm x scalp deep present on left temporal area of the scalp, directed downwards and forwards. iii) One incised wound measuring 6 x 1 cm x scalp deep present on left parietal area. iv) One incised wound measuring 10 x 2cm present on back of the right hand leaving only a tag of skin on palmer surface. CRANIUM AND SPINALCANAL:- The scalp as described. Thorax: Organs were found healthy. Abdomen: No abnormality noticed. 6. The doctor (PW 8) has opined the cause of death was to shock and haemorrhage, which had resulted from the injuries sustained by the said deceased, the injuries being ante mortem in nature. The doctor (PW 8) has also opined that the injuries were caused by heavy sharp weapon, such as, dao. 7. Apart from the fact that the findings of the doctor and his opinion, with regard to the nature of injuries sustained by the said deceased, the cause of death and the possible nature of the weapon used in the offence, were not disputed at the trial, we, too, do not find anything inherently incorrect or improper in the evidence given by the doctor. 8. Situated thus, we find that the said deceased had sustained as many as four incised wounds, one of these injuries being on neck and three on head. These injuries do not leave any room for doubt that Begula Choudhury's death was homicidal in nature inasmuch the assailant intended to cause death of the said deceased. 9. 8. Situated thus, we find that the said deceased had sustained as many as four incised wounds, one of these injuries being on neck and three on head. These injuries do not leave any room for doubt that Begula Choudhury's death was homicidal in nature inasmuch the assailant intended to cause death of the said deceased. 9. Bearing in mind what have been indicated above, when we come to the evidence of PW1, who is brother of the said deceased and also informant of the case, we find according to his evidence, given in the examination-in-chief, the accused and his sister Begula(since deceased) used to live together in the same quarter. In his cross-examination, PW 1 has, however, stated that the accused used to live separately from Beguli for more than 6 months prior to the incident meaning thereby that the accused had not been living jointly with the said deceased at the time of occurrence. 10. As far as PW 2 and PW 3 are concerned, they have given no incriminating evidence against the accused and when we consider the evidence of PW 4, we find that according to this witness's evidence the accused used to visit his wife and also used to stay with her occasionally and that he had heard from the garden labourers that the accused had killed his wife. The evidence given by PW 4 to the effect that he had heard from garden labourers that the accused had killed his wife is nothing, but hearsay inasmuch as no one has been examined by the prosecution to show that he or she had witnessed the accused assaulting his wife to death. 11. What is important to note, now, is that in his cross-examination, PW 4 has stated that the accused had not been staying with his said wife for about a year, but before the death of the deceased, the accused had started visiting the deceased. 12. Thus, even the evidence of PW 4 shows that the accused occasionally visited the house of the deceased and did not stay with her. There is also no evidence to show that the accused had been staying at the house of the deceased on the night of the occurrence. 13. PW 6, too, has deposed that the said deceased used to live separately from the accused in the same labour line of the tea estate. There is also no evidence to show that the accused had been staying at the house of the deceased on the night of the occurrence. 13. PW 6, too, has deposed that the said deceased used to live separately from the accused in the same labour line of the tea estate. What is of immense importance to note, in the evidence of PW 6, is that he has deposed that he saw one adult person visiting the quarter of the said deceased and that the said person used to stay, for a few days, at a stretch in the house of the said deceased. The evidence, so given, by PW 6 shows that there was another person, other than the accused-appellant, who was not only a visitor to the house of the said deceased, but, at times, lived with her. Even PW 7 has conceded, in cross-examination, that one unknown person used to visit the deceased and also used to stay with her. 14. As far as PW 5 is concerned, his evidence is that he is a line Chowkidar and after the occurrence, when the police came to the garden, they reached his house and took him to the house of the accused, the accused brought out a dao and handed over the same to police and that the dao was found kept on the top of an Almirah. 15. We may pause here to point out that the said dao could not be proved by the prosecution to be the weapon of offence inasmuch as neither the said dao was put to serological test nor is there any evidence indicating that it was the seized dao, which was the weapon of offence. 16. When we turn to the evidence of PW 10, who was, at the relevant point of time, a Judicial Magistrate, 2nd Class, we find that he has deposed that on 10.2.2004, while he was working as Judicial Magistrate, Tinsukia, the accused was produced before him at 1 P.M. for recording his confessional statement and, having given him time for reflection till 4 PM, he recorded the confession of the accused. It is in the evidence of PW 10 that while giving the accused time for reflection, he cautioned the accused about the consequence of making confession and that during the period of reflection, the accused was kept in his chamber. It is in the evidence of PW 10 that while giving the accused time for reflection, he cautioned the accused about the consequence of making confession and that during the period of reflection, the accused was kept in his chamber. PW 10 has deposed that at 4.05 PM, he, once again cautioned the accused about the consequences of making confession and, having made certain queries from the accused, when he found that the accused was going to make confessional statement voluntarily, he recorded the confessional statement. 17. We find from the record, which has been maintained by the PW 10, that PW 10 had clearly told the accused-appellant that he would not be handed over to the police even if he opted not to make confession. This apart, we also notice that PW 10 had questioned the accused-appellant to find out as to why he had come forward to confess and the accused responded by saying that he was in drunken condition and he committed the offence in anger. To the question put by PW 10 to the accused if he (accused-appellant) had been asked by any one to make confession, the accused appellant replied in negative. 18. In the backdrop of the above, evidence of PW 10, we are satisfied that the confession, which had been made in the present case by the accused-appellant, was voluntarily. The question is: whether the confession, so made, was truthful and trustworthy? 19. The question, so posed, brings us to the confessional statement of the accused-appellant and we find that in his confessional statement, the accused appellant had stated that on 8.2.2004, at about 7-30 P.M., he went to the house of the deceased and found her involved in sexual act with a stranger and, on his (accused-appellant) arrival there, the stranger fled away and when he (accused-appellant) questioned the said deceased as to who was the person, who had fled away, she remained mum and, out of anger, he hacked her by a dao. 20. When the confessional statement of the accused is considered in the light of the evidence on record, we find that the evidence on record clearly shows that there was an unknown man, who used to visit the house of the deceased and, at times, even lived with her. 20. When the confessional statement of the accused is considered in the light of the evidence on record, we find that the evidence on record clearly shows that there was an unknown man, who used to visit the house of the deceased and, at times, even lived with her. Thus, the evidence, adduced by prosecution witnesses, which we have discussed above, lend credence to the confessional statement of the accused. We have, therefore, no hesitation in holding that the confessional statement, in question, was not only voluntarily but true too. 21. The question, now is, as to what offence the accused-appellant had committed in the light of his confessional statement, corroborated by the other evidences on record. While considering this question, we find that the accused, as husband of the said deceased, was deprived of his power of self control by the grave and sudden provocation, which had been provided to him by the act of the said deceased, when she was, despite being wife of the accused-appellant, found involved in the sexual act with a stranger and, on being so deprived of his power of self-control, the accused-appellant caused the death of his wife. 22. In the light of the nature of injuries sustained by the said deceased, it can be clearly gathered that the death, in the present case, was caused intentionally. The act of the accused, thus, fell squarely within the ambit of Section 304 (Part I) IPC. 23. In the face of the facts, which we have discussed above, we hold that the accused, in the face of evidence on record, cannot be said to have committed the offence of murder, but he did commit the offence of culpable homicide not amounting to murder, his act being punishable under Section 304 (Part I) IPC. 24. Because of what has been discussed and pointed out above, we hold the accused-appellant was not guilty of offence of murder and set aside, accordingly, his conviction and sentence by the impugned judgment and order for murder. We, however, hold the accused-appellant guilty of the offence under 304 Part I IPC and convict him accordingly. 25. When we consider the sentence, which needs to be passed against the accused-appellant, we find the present one is a case, where a sentence of imprisonment for a period of 5 years would be adequate and serve the ends of justice. 26. 25. When we consider the sentence, which needs to be passed against the accused-appellant, we find the present one is a case, where a sentence of imprisonment for a period of 5 years would be adequate and serve the ends of justice. 26. In the result and for what has been held above, we sentence the accused appellant to undergo rigorous imprisonment for a period of five years subject to the provisions of set off as embodied in Section 428 Cr. P. C. 27. If the accused-appellant has already undergone the sentence, which has been passed against him, he shall be set at liberty forthwith unless he is required to be detained in connection with any other case. 28. Send back the LCR. 29. Let the Amicus Curiae be paid a sum of Rs. 5,000/- for his valuable contribution to the Court. With the above observations and directions, this appeal stands disposed of.