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2014 DIGILAW 1027 (GAU)

Birsha Topno v. State of Assam

2014-12-01

C.R.SARMA, PRASANTA KUMAR SAIKIA

body2014
JUDGMENT C.R. Sarma, J. 1. Heard Ms. K. Phukan, learned Amicus Curiae, appearing for the appellant and Mr. K.A. Mazumdar, learned Addl. Public Prosecutor, Assam, appearing for the State respondent. This appeal is directed against the impugned judgment and order, dated 24.08.2011, passed by the learned Sessions Judge, Dibrugarh in Sessions Case No. 174/2008 (G.R. Case No. 1380/2008), whereby the learned Sessions Judge convicted the appellant under Section 302 of the Indian Penal Code (for short IPC) and sentenced him to suffer imprisonment for life and pay fine of Rs. 2,000/- (Rupees two thousand), in default suffer rigorous imprisonment for another period of 6 (six) months. It has also been ordered that the convicted person shall be entitled to set off, under Section 428 of the Code of Criminal Procedure (for short Cr. P.C.). The prosecution case, in brief, is that on 01.08.2008 at about 9.30 p.m. while the appellant, his wife (hereinafter called the deceased) and the appellant's brother were taking liquor, in the house of the appellant, a quarrel took place between the said persons and Mr. Faglu Topno @ Paglu (since deceased), who was the brother of the appellant, gave blows on the head of the deceased with a split firewood and the appellant also gave a blow, on the head of the deceased, with a bottle. On being so assaulted the deceased succumbed to the said injuries. Shri Abdan Horo (P.W. 1), coming to know about the occurrence, lodged an FIR (Ext. 1) with the police. Accordingly, police registered a case, being Nahorkotia P.S. Case No. 76/2008, under Sections 302/34 IPC and visited the place of occurrence. During investigation, police took the appellant and his said brother i.e. Faglue Topno @ Paglue into the custody, prepared the inquest report in respect of the dead body of the deceased, forwarded the dead body to hospital for post-mortem examination, seized a bottle and a piece of split firewood vide Ext. No. 3 i.e. seizure list. 2. At the close of investigation, police submitted charge sheet, under Sections 302/34 IPC, against the accused persons. The offence, being exclusively triable by the court of Sessions, the learned Judicial Magistrate, 1st Class, Dibrugarh committed the case to the court of Sessions. The learned Sessions Judge Dibrugarh, framed charge under Section 302 IPC and the charge was read over and explained to which the accused persons pleaded not guilty. The offence, being exclusively triable by the court of Sessions, the learned Judicial Magistrate, 1st Class, Dibrugarh committed the case to the court of Sessions. The learned Sessions Judge Dibrugarh, framed charge under Section 302 IPC and the charge was read over and explained to which the accused persons pleaded not guilty. They claimed to be tried. 3. In order to prove its case, prosecution examined as many as 8 (eight) witnesses, including the Medical Officer (PW-6), who performed the autopsy, in respect of the dead body of the deceased. The prosecution failed to examine the Investigating Officer. 4. During the course of the trial, one of the accused persons, namely Faglu Topno @ Paglu i.e. the brother of the present appellant, expired and the case got abetted (order dated 22.11.2010). 5. After examination of all the prosecution witnesses, the accused person was examined, under Section 313 Cr. P.C. Though the appellant denied the allegations, brought against him, he stated that during the quarrel that took place between himself and his wife (i.e. the deceased), his brother namely Faglu Topno @ Paglu assaulted his wife with a lathi/split firewood, causing her death. 6. Considering the evidence on record, the learned Sessions Judge convicted the accused, under Section 302 IPC and sentenced him as indicated above. Hence, the convicted person, as appellant, has come up with this appeal. 7. Ms. K. Phukan, learned Amicus Curiae, appearing for the appellant, taking us through the evidence, on record, has submitted that there is no substantive evidence, regarding the involvement of the present appellant with the death of the deceased and as such, the learned Sessions Judge, committed error by convicting and sentencing the accused-appellant under Section 302 IPC. 8. The leaned Amicus curiae has also submitted that at the relevant time, the appellant, the deceased and his said brother were taking liquor in his house and that due to sudden quarrel, his brother Sri. Faglu Topno @ Paglu assaulted the deceased with a piece of firewood, causing her death. It is also submitted that the head injury, sustained by the deceased, was the cause of the death of the deceased and as such the conviction and sentence recorded under Section 302 IPC is not maintainable inasmuch as the appellant did not assault the deceased with an intention to cause her death. 9. It is also submitted that the head injury, sustained by the deceased, was the cause of the death of the deceased and as such the conviction and sentence recorded under Section 302 IPC is not maintainable inasmuch as the appellant did not assault the deceased with an intention to cause her death. 9. Controverting the said arguments, advanced by the learned Amicus Curiae, appearing for the appellant, Mr. K.A. Mazumdar, teamed Addl. Public Prosecutor, Assam, has submitted that the evidence of PW 7, i.e. the daughter of the deceased, who was an eye witness to the occurrence, is sufficient to hold that appellant and his brother had assaulted the deceased with an intention to cause her death and, as such, the learned Sessions Judge committed no error by recording the conviction and sentence aforesaid. 10. In order to appreciate the argument, advanced by the learned counsel, appearing for both the parties and to examine the correctness of the impugned judgment and order, we have carefully perused the evidence, on record. 11. As revealed from the evidence, adduced by the prosecution witnesses, more particularly, PW 7 and the Medical Officer (PW 6), who performed the autopsy, there is no dispute that the deceased died due to head injury, sustained by her on the fateful night. Except PW 7, the other non-official witnesses had no personal knowledge about the incident. 12. PW 7 i.e. the daughter of the deceased stated that her father and uncle (since deceased) were taking liquor in the house and due to quarrel, which took place between them, the appellant's brother and the appellant had given blows on the head of the deceased with split firewood and a bottle. She stated that her mother had instantly fallen down and succumbed to her injuries. Though this witness was cross-examined by the defence, no contradiction could be elicited to render her evidence disbelievable. In fact, her evidence, regarding involvement of the appellant with the death of the deceased, remained undemolished. 13. Supporting the evidence of PW 7, the informant (Sri Abdan Horo), deposing as P.W. 1, stated that coming to know about the incident, he rushed to the place of occurrence and found that the dead body of the deceased was already shifted to the police station. He was a witness to the inquest report (Ext. 2). 14. 13. Supporting the evidence of PW 7, the informant (Sri Abdan Horo), deposing as P.W. 1, stated that coming to know about the incident, he rushed to the place of occurrence and found that the dead body of the deceased was already shifted to the police station. He was a witness to the inquest report (Ext. 2). 14. Sri Lakshi Lal Tanti, who deposed as PW 2, stated that, he also coming to know about the incident, rushed to the police station and saw the accused persons in the police station. According to this witness, he came to know that the appellant had caused the death of the deceased. 15. Sri Sunni Bhumiz (PW 3) stated that he came to know from the night chowkidar, Sri Suresh Tasa that the appellant had picked up a fight with his wife and accordingly he informed the matter to police, over telephone. According to this witness, he rushed to the place of occurrence, where the police had already arrived. He further stated that the dead body of the deceased was found lying, inside the house, with bleeding injury on the head. He also stated that the public, before handing over the appellant and his brother to the police, had apprehended them and tied them up in the courtyard. He further stated that he came to know from the daughter of the deceased (PW 7) that the appellant and his brother had caused the death of the deceased by assaulting her with split firewood and bottle. He was also a witness to the inquest report (Ext. 2), prepared by the police. Though this witness was cross-examined by the defence, no contradiction could be elicited to demolish his said evidence. 16. From the evidence of this witness, it is clearly found that he was reported by the daughter (PW 7) of the deceased, regarding the involvement of the appellant with the death of the deceased. Hence, we find sufficient corroboration in the evidence of PW 7 to believe that the appellant and his brother (since deceased) caused the death of the deceased by giving fatal blows on her head. 17. The medical Officer, who performed the autopsy of the dead body of the deceased, found the following injuries:- "(1) Lacerated injury of size 4 cm X 2 cm present over the left temporo parietal region bone deep. 17. The medical Officer, who performed the autopsy of the dead body of the deceased, found the following injuries:- "(1) Lacerated injury of size 4 cm X 2 cm present over the left temporo parietal region bone deep. (2) Abrasion of size 2 cm X 1 cm X 1/2 cm present upper back of the chest and neck at places. (3) Abrasion and contusions of size 3 cm X 2 cm to 1.5 cm X 1 cm present both sides of the face and frontal region at places." The Medical Officer opined that the death was caused due to head injury i.e. injury No. 1, sustained by the deceased. He also stated that the said injury was caused by blunt force impact and the said injury No. 1 was individually sufficient to cause death of a person, in the ordinary course of nature. The Medical Officer also stated that the time of death of the deceased was 12 to 24 hours prior to the post-mortem examination. The said evidence suggests that the deceased died due to injury, on her person, on the fateful night of 01.08.2008 at about 9.30 p.m. From the said Medical Officer (PW 6) it is clearly found that the deceased died due to head injury, sustained by her and that the said injury was caused by blunt object. 18. PW 7, who was the eye-witness to the occurrence stated that the brother of the appellant i.e. her uncle had given a blow on the head of the deceased with a piece of firewood, while her father i.e. the present appellant had given a blow with bottle on the head of the deceased. Hence, the said Medical evidence supports the ocular evidence regarding the use of the said weapons of assault by the assailant. From the seizure list, which has been exhibited as Ext. No. 3 also indicates that a piece of fire wood and a bottle were seized by the Investigating Officer. 19. In view of the above, we have no hesitation in holding that the appellant had caused the death of the deceased by inflicting blow on her head with a piece of firewood and a bottle. In the FIR, which has been exhibited, as Ext. 1, clearly stated that an altercation had taken place between the appellant, his wife i.e. the deceased and the brother of the appellant (since deceased). In the FIR, which has been exhibited, as Ext. 1, clearly stated that an altercation had taken place between the appellant, his wife i.e. the deceased and the brother of the appellant (since deceased). The FIR also discloses that the appellant and his deceased-brother i.e. Faglu Topno @ Paglu had assaulted the deceased, causing her death. 20. PW 1, who lodged the FIR, was the brother of the deceased. He stated that both the appellant and his brother had picked up a quarrel with his sister i.e. the deceased and assaulted her causing her death. P.W. 7 i.e. the daughter of the deceased, who was present at the time of occurrence, stated that her father and uncle (since deceased) were taking liquor in their house and that both of them, after consuming liquor, started assaulting her mother. 21. From the above evidence, we find no difficulty in understanding that the incident took place between the said persons due to taking of liquor, which was followed by a quarrel. The entire facts and circumstances of this case as well as the evidence surfaced from the prosecution witnesses does not lead to the conclusion that the appellant had premeditation or intention to cause the death of the deceased. 22. In our considered opinion, the occurrence took place due to sudden fight in the hit of passion upon sudden quarrel. As indicated by PW 7 i.e. the eye-witness, both the appellant and his brother had given only one blow each, that too with a piece of firewood and a bottle. Most probably, the assailant i.e. the brother of the present appellant due to the quarrel with the deceased had assaulted her with firewood, which was available in the house, where they were taking liquor, prior to the occurrence. There is also material to find that the bottle used by the present appellant was most probably the bottle of liquor, inasmuch as the appellant and his deceased-brother Faglue Topno @ Paglu had taken liquor, sitting in the house of the appellant. 23. There is no evidence to find that they had taken undue advantage or acted in a cruel or unusual manner. 24. In view of above, we find that the offence committed by the appellant does not fall under the purview of Section 302 IPC and as such the conviction and sentence, recorded under section 302 IPC, is not maintainable. 23. There is no evidence to find that they had taken undue advantage or acted in a cruel or unusual manner. 24. In view of above, we find that the offence committed by the appellant does not fall under the purview of Section 302 IPC and as such the conviction and sentence, recorded under section 302 IPC, is not maintainable. However, considering the entire aspect of the matter, we are inclined to hold that the offence committed by the appellant will fall under the provision of Section 302 Part-I IPC. Accordingly, we set aside the conviction and sentence under Section 302 IPC and modify the same to one under Section 304 part I and sentenced him to suffer rigorous imprisonment for 7 (seven) years, instead of life imprisonment. We are not inclined to interfere with the sentence regarding the fine amount. 25. With the above modification, this appeal is partly allowed. 26. Before we part with this appeal, we record, with appreciation, the service rendered by Ms. K. Phukan, as the Amicus Curiae. We direct that an amount of Rs. 7,000/- (Rupees seven thousand) be paid to the learned Amicus Curiae, by the State, as her remuneration. Send back the LCR. Appeal Partly Allowed.