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2013 DIGILAW 871 (GAU)

Inchan Ali v. State of Assam

2013-12-16

K.SREEDHAR RAO, M.R.PATHAK

body2013
K. Sreedhar Rao, J. Heard Ms. RD Mazumdar, learned Amicus Curiae, and Ms. S. Jahan, learned Addl. Public Prosecutor, Assam. The prosecution case discloses that one Rameja Bibi is the sister-in-law of the accused in the sense, wife of his younger brother, who is PW5, incidentally the complainant. The accused and his brothers were living separately in different houses in the same compound with a common courtyard. There used to be family quarrel between the accused family and the deceased family. On 23.07.2009, at 7.00 a.m., there is a quarrel. The accused was making a statement in a fit of anger that he will tear apart the deceased. The accused with mattock (called siprang in Assamese language), assaulted the deceased on his head and other parts. 2. PW7 is another younger brother, who was in his house and saw the entire incident. He came to rescue, but he was threatened by the accused, hence, he ran away. The husband of the accused was not in the house at the time. The husband of the accused (PW5) came back and lodged a complaint to police. The deceased was admitted to Civil Hospital at Mirza, later on, for better treatment, she was referred to Gauhati Medical College and Hospital. The deceased succumbed to the injuries on 31.07.2009. The police conducted inquest, the dead body is subjected to post mortem examination. The post mortem report discloses that the death was due to shock and hemorrhage due to coma as a result of head injuries. The injuries were ante mortem and death is homicidal. The police, after completion of investigation, filed a Final Report against the accused. The accused is charged for committing offence under Section 302 IPC. 3. In the evidence before the trial Court, PW7 has testified to the fact that at the time of incident, he was in his house and he has been able to see the entire quarrel from his house. The accused took the mattock, violently went towards the deceased and caused the injuries. PW7 went to rescue, he was threatened by the accused, therefore, he ran away. 4. PW5 is the husband of the deceased, he is not an eye witness to the occurrence. Prosecution mainly bases conviction on the evidence of PW7, PW3 and the post mortem report to prove the guilt of the accused. 5. PW7 went to rescue, he was threatened by the accused, therefore, he ran away. 4. PW5 is the husband of the deceased, he is not an eye witness to the occurrence. Prosecution mainly bases conviction on the evidence of PW7, PW3 and the post mortem report to prove the guilt of the accused. 5. PW3 is another witness to the incident, is a neighbor, who upon hearing quarrel came to the scene. His evidence is that he came to the street hearing alarm and saw the accused holding the weapon and the deceased was lying. The trial Court, on the basis of evidence of PW7 and PW3 coupled with the post mortem report, convicted the accused for offence punishable under Section 302 IPC, hence, this appeal. 6. Smt. RD Mazumdar, as Amicus Curiae for the accused-appellant submitted the following circumstances to assail the order of conviction: (i) The deceased survived for nearly 4/5 days after the injuries, therefore, it cannot be said that the accused caused the injury with intention to cause death. (ii) The prosecution case discloses that there was quarrel between the deceased and the accused and in a state of quarrel and in provocative circumstances, if the accused has caused the injuries, it would not amount to offence under Section302 IPC but an offence under Section 304 (Part-I) IPC. (iii) There is delay in lodging the FIR. The incident took place on 23.07.2009, but the complaint is lodged by PW5 on 26.07.2009 and deceased succumbed to the injuries on 31.07.2009. The delay in lodging the FIR suggests that there is element of manipulation to falsely implicate the accused. 7. In the light of the said submission, it is argued that the order of conviction under Section 302 IPC is bad in law, at best, the conviction ought to have been under Section 304 (Part-I or II) IPC. After considering the submissions made at the Bar and the facts and evidence, we find that the contention of the counsel for the appellant that there was no intention to kill, therefore, he is not guilty of an offence under Section 302 IPC, is untenable. The contention that in the state of quarrel, the injury is caused, therefore, Section 302 IPC is untenable and Section 304 (Part-I) IPC also appears to be untenable. 8. The evidence of PW7 nowhere suggests that the deceased provoked the accused. The contention that in the state of quarrel, the injury is caused, therefore, Section 302 IPC is untenable and Section 304 (Part-I) IPC also appears to be untenable. 8. The evidence of PW7 nowhere suggests that the deceased provoked the accused. From the material on record, it could be gathered that the son of the accused was assaulted by the deceased and that led to the family quarrel and in that connection, the accused got enraged and caused injuries to the deceased with mattock. The said context of circumstances does not suggest that there was any state of quarrel or a provocative circumstances to justify and find it prompted act of killing to make a case under Section 304 (Part-I) IPC. The evidence of PW7 is categorical. He says that accused, by his overt act and violently proclaiming that the deceased is to be seen he attacked her with mattock and caused injury. 9. The evidence of PW3 also supports the res jesta circumstances of accused with weapon and seen the deceased lying. Therefore, the evidence of PW7 and PW3 when read carefully coupled with the medical evidence, it disclose that the accused is guilty under Section 302 IPC and not under Section 304 (Part-I) IPC. PW5 in the complaint has stated that PW7 is a witness to the incident. 10. With regard to the delay in lodging the FIR, on careful perusal of the record, we find that the deceased was first admitted in the Government Hospital at Mirza and the history of the injury is said to be as a result of the assault, therefore, the injury sustained by the deceased was necessary caused during the course of assault. In the cross-examination of PW7 nothing is elicited to disbelieve the veracity, so also the cross-examination of PW3 nothing was elicited to disbelieve the veracity. 11. The evidence of PW2 disclose that the deceased with injuries was taken to the police station at the earliest, the police directed her to get admitted at the Civil Hospital at Mirza. The matter is earliest reported to the police, but there is some negligence on the part of the police in not recording the FIR at the earliest. Therefore, the lapses on the part of the investigation cannot be a ground to disbelieve the veracity the testimony of PW7 and PW3. The matter is earliest reported to the police, but there is some negligence on the part of the police in not recording the FIR at the earliest. Therefore, the lapses on the part of the investigation cannot be a ground to disbelieve the veracity the testimony of PW7 and PW3. In that view of the matter, we do not find that there is any element of dishonesty in submitting the complaint to the police. 12. In that view of the matter, we find that the order of conviction recorded is sound and proper and does not call for interference. Accordingly, the appeal is dismissed. 13. The fees of Amicus Curiae is fixed at Rs. 7,000/-. The fee shall be paid by the State. Send back the LCR. _