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2013 DIGILAW 872 (GAU)

Elesovaanthoni v. State of Assam

2013-12-16

K.SREEDHAR RAO, M.R.PATHAK

body2013
K. Sreedhar Rao, J. Heard Mr. SK Ghosh, learned Amicus Curiae, and Mr. D. Das, learned Additional Public Prosecutor, Assam. The prosecution case discloses that one Soma Mahabir is the deceased. Accused is the wife of the deceased. The deceased is said to have by force brought the accused and was living with her along with the children born to him in the wedlock with his first wife, who are PW7 and another son, who is not examined. 2. On 13.11.2007, in the night after the meals, the accused and the deceased were sleeping in one room. PW7 and another son of the deceased were sleeping in the adjoining room. The accused caused death of her husband by Kalam Katari (long sharp implement used for cutting leafs). 3. At 10.00 p.m.., the younger son of the deceased wanted to attend the first call of nature. PW7 being the elder sister, she woke up to take him to nature's call. PW7 looked for the accused, but she was not there and their father was lying dead on the bed. Thereafter, she informed the neighbours, people gathered there. A complaint was given by PW2 on the next day at 10 a.m.. The contents of the Ext. 1 disclose that the accused, after committing the murder, at about 9.30 p.m.. went to the house of PW2 with the weapon and also told him about the causing death of her husband. On that basis, PW2 lodged a complaint on the next day. 4. PW7 is a witness to the last seen circumstance of the accused and the deceased being together and sleeping together in the adjacent room of the house. The police conducted inquest, the dead body is subjected to post mortem examination. The post mortem report discloses that the death is on account of cut injury of cervical bone on the neck. The injuries were ante mortem and death is homicidal. 5. The accused is charged for committing offence under Section 302 IPC. The trial Court on the basis of evidence of PW7, PW2 and the post mortem report, has convicted the accused. Hence, the convicted accused is in appeal. 6. Sri SK Ghosh, as Amicus Curiae for the accused-appellant submitted the following circumstances to assail the order of conviction: (i) The FIR does not disclose explicitly that the accused made extra-judicial confession to PW2. (ii) The evidence of PW2 is concocted. Hence, the convicted accused is in appeal. 6. Sri SK Ghosh, as Amicus Curiae for the accused-appellant submitted the following circumstances to assail the order of conviction: (i) The FIR does not disclose explicitly that the accused made extra-judicial confession to PW2. (ii) The evidence of PW2 is concocted. If the evidence of PW2 is eliminated, there is absolutely no evidence to incriminate the accused. (iii) The prosecution failed to examined the another son of the accused, who is a material witness to the incident. 7. The prosecution case discloses that the deceased had brought the accused forcibly and was living with her. The cohabitation of the deceased with the accused was under forceful circumstances. The accused had simmering discontent and anger against the deceased, therefore, the accused had caused the murder on account of sustained provocation, hence, the offence is not punished under Section 302 but ought to have been punished under Section 304 Part-I IPC. 8. The counsel for the defence submitted that there is evidence to suggest that the accused was suffering from mental illness and, therefore, in a state of lunatic condition, the murder is caused. Therefore, the accused is entitled to the benefit under Section 84 of the IPC and the accused is to be acquitted. 9. Upon thorough consideration of the facts and evidence, in the first place, we find that there does not appear to be any substantial material to suggest that the accused was forcibly made to cohabit with the deceased. 10. In the evidence of PW5, there is only a casual statement that after the demise of the first wife, the deceased had kidnapped the accused and they were living together. The said statement does not suggest that by force and on compulsion, the deceased was cohabiting with the accused. 11. The evidence of PW7 discloses that on the night, both the accused and deceased had taken liquor and PW7 and her brother were sleeping in another room. She woke up by her brother. She did not find her mother in the bed and found her father dead. This evidence would suggests that the accused and deceased being last seen together in their bed room and thereafter the accused was not found and the deceased was found dead is also incriminating circumstances against the accused. 12. She woke up by her brother. She did not find her mother in the bed and found her father dead. This evidence would suggests that the accused and deceased being last seen together in their bed room and thereafter the accused was not found and the deceased was found dead is also incriminating circumstances against the accused. 12. The evidence of PW2 discloses that the accused came to him and confessed the guilt and she was carrying the weapon. The weapon was kept in the courtyard of PW2. 13. The accused in 313 statements admits to the fact that she went to the house of PW2 with the weapon, but denies by making an extra-judicial confession that she killed the deceased. The weapon is recovered from the courtyard of PW2 at the voluntary instance of the accused. The contents of FIR impliedly suggest that the accused had made extra-judicial confession to PW2 and secretly kept the weapon in the courtyard, which ultimately came to be recovered at the voluntary instance of the accused. The prosecution examined PW4, to testify the extra-judicial confession, who turned hostile. 14. The trial Court on the basis of the evidence of PW7 and PW2 coupled with the post mortem report, has convicted the accused under Section 302IPC. 15. On careful consideration, we find that the order of conviction is sound and proper and does not call for interference. Accordingly, the appeal is dismissed. 16. The fees of Amicus Curiae is fixed at Rs. 7,000/-. The fee shall be paid by the State. Send back the LCR.