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2013 DIGILAW 857 (GAU)

Nabin Kachari @ Hazarika v. State of Assam

2013-12-10

K.SREEDHAR RAO, P.K.SAIKIA

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1. Heard Mr. B. Gogoi, learned amicus curiae, and Ms. S. Jahan, learned Addl. Public Prosecutor, Assam. 2. The material facts of the prosecution case disclose that one Smt. Tulumoni Kachari is the deceased. Accused is the husband of the deceased. There used to be frequent quarrels between, the husband and the deceased. On 30.10.2007, at 4.30 p.m., there was a quarrel and the accused assaulted the deceased with a machete (dao). The son of the accused (PW1) was outside the house and on hearing the cries, he came to the house and found his mother lying dead with injuries and his father running away from the house with the weapon. 3. The complaint is lodged by PW1 before the police. Inquest is held on the dead body and the dead body is subjected to post mortem examination. The autopsy report discloses that death is due to shock and hemorrhage as a result of the injury caused to the neck. The accused is arrested and the accused made a judicial confession before the Judicial Magistrate under section 164, Cr.PC. 4. Accused is charged for committing offence under section 302, IPC-. 5. PW1 in the evidence has supported the case of the prosecution and testifies to the effect that on hearing cries, he came home, saw his mother lying dead with injuries and his father running away with the weapon. The Magistrate, who recorded the judicial confession, is examined as PW14 and his evidence disclose that the accused has made judicial confession and he has recorded the same as per the provisions of section 164(1), Cr.PC. 6. The doctor, who conducted the post mortem examination, has given evidence that the death is due to shock and hemorrhage as a result of the neck injury. The doctor has also stated that the injury to the neck can be caused by any sharp cutting weapon. 7. The learned trial court, upon considering the evidence, has convicted the accused under section 302, IPC and the accused person is sentenced for life. The accused person, being aggrieved, has filed this appeal from jail. 8. Mr. Bibekananda Gogoi, learned amicus curiae, for the accused-appellant, submits that in his statement under section 313, Cr.PC, the accused has stated that the deceased hit him on his leg. He, therefore, got provoked and caused the injuries. The accused person, being aggrieved, has filed this appeal from jail. 8. Mr. Bibekananda Gogoi, learned amicus curiae, for the accused-appellant, submits that in his statement under section 313, Cr.PC, the accused has stated that the deceased hit him on his leg. He, therefore, got provoked and caused the injuries. The circumstances under which the offence has been committed, does not constitute an offence under section 302, IPC, but it would be an offence under section 304 (Part-I), IPC. Hence, the conviction of the accused under section 302, IPC is bad in law. 9. On overall consideration of the facts and the evidence, we find that the version given by the accused in his statement under section 313, Cr.PC that he was provoked by his wife as a result of the injury caused to his leg and, theorefore, he hit her with a machete (dao) is not substantiated by any evidence. The accused does not speak to this fact in his confessional statement. Therefore, keeping in view the evidence of PW1, the confessional statement and the post mortem report, we find that the order of conviction under section 302, IPC is sound and proper. 10. Accordingly, this appeal is dismissed. 11. the State shall pay to the learned amicus curiae a sum of Rs.7,000. 12. Send back the LCR.