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2015 DIGILAW 1212 (GAU)

Binu Gogoi v. State of Assam

2015-09-19

P.K.SAIKIA, RUMI KUMARI PHUKAN

body2015
ORDER : 1. This appeal is directed against the judgment and order dated 26.09.2011 passed by the learned Addl. Sessions Judge, (FTC), Sivasagar in Sessions Case No. 132(S-S)/2008 convicting one Smti. Binu Gogoi (herein after referred to as the ‘accused person’) of offence u/s 302/34 IPC and sentencing her to imprisonment for life with a fine of Rs. 2000/- (Rupees Two Thousand) i.d., S.I for another 2 months for the offence aforesaid. 2. Being aggrieved by and dissatisfied with the aforesaid judgment the accused person has preferred this appeal citing several infirmities in the judgment under challenge. 3. We have heard Mr. S. Borgohain, learned counsel appearing for the appellant and also heard Mr. K.A. Mazumdar, learned Addl. P.P., appearing for the State. 4. The facts, projected by prosecution during investigation and trial which is are necessary for disposal of the present appeal, in short, are that on the morning of 02.04.2006, one Nirup Gogoi was found lying dead in his room with a cut injury on his neck. One Sri Druna Gogoi, the informant, who is also the brother of the deceased, came to know that his brother was killed by his own wife who is appellant herein. In that connection, Sri Druna Gogoi, lodged an FIR with the I/C, Joysagar Police Out Post on 02.04.2006 stating as above. 5. On receipt of the same, I/C, Joysagar Police Out Post made a GD entry vide GD entry No. 17 dated 02.05.2006 and forwarded the same to the O/C, Sivasagar Police Station for registering a case and for doing further needful. On receipt of the FIR, Shri Dutta O/C, Sivasagar PS registered a case vide Sivasagar PS Case No. 154 of 2006 u/s 302/34 and O/C, himself took up the investigation. 6. During the course of investigation, O/C visited the place of occurrence, conducted inquest on the dead body, sent the same to hospital for post mortem examination, examined the witnesses, arrested the accused person, did other thing needful and on the conclusion of investigation, he submitted charge sheet against accused Ambeswar Gogoi and present appellant u/s 302/34 IPC and forwarded them to the court to stand their trial. 7. The learned Magistrate before whom charge-sheet was so laid, committed the case to the court of Session since the offence u/s 302 IPC is exclusively triable by the court of Session, Sivasagar. 7. The learned Magistrate before whom charge-sheet was so laid, committed the case to the court of Session since the offence u/s 302 IPC is exclusively triable by the court of Session, Sivasagar. The learned Sessions Judge on receipt of case on commitment transferred the same to the file of learned Addl. Sessions Judge, FTC, Sivasagar for disposal in accordance with law. 8. The learned Addl. Sessions Judge, on receipt of the case on transfer and on hearing the learned counsel for the parties was pleased to frame charge u/s 302/34 IPC against accused persons and charges, so framed, on being read over explained to accused persons they pleaded not guilty and claimed to be tried. 9. During trial, accused Ambeswar Gogoi died and as such, the case stands abetted against him. As the trial progressed , the prosecution examined as many as 18 (eighteen) witnesses including the informant of the case, the IO and the MO who conducted autopsy on the dead body. The statement of the accused person u/s 313 Cr PC was also recorded. Her plea was of total denial. 10. On conclusion of trial and on hearing the learned counsel for the parties, learned court below was pleased to convict the accused person herein of offence u/s 302/34 IPC and sentenced her punishment as aforesaid. It is that judgment which has been assailed in the present appeal. 11. Mr. Borgohain, learned counsel for the appellant submits that the judgment under challenge cannot be sustained for reasons more than one. In that connection, it has been stated that the prosecution has projected before the court during trial two separate stories, first story supports the claim of prosecution that the author of the crime in question is the present appellant. On the other hand, other set of evidence on record shows that Ambeswar Gogoi, since deceased, was the author of the crime in question. 12. Since the evidence on record projected two theories, one theory supports the prosecution case while other theory supports the innocence of the appellant herein, in view of well established cardinals principle of criminal jurisprudence, the accused could not have been convicted of offence u/s 302 IPC. 13. He further submits that there are some other technical infirmities which come down heavily on the judgment in question. 13. He further submits that there are some other technical infirmities which come down heavily on the judgment in question. In that connection, it has been pointed out that while examining under Section 313 Cr PC, all the incriminating circumstances were not notified to the appellant seeking her explanation thereto. Equally important, the accused/ appellant was not asked whether she desires to adduce any evidence in her defence. He, therefore, urges this court to set aside the judgment under challenge and to acquit the accused person of the offence she was charged with. 14. On the other hand, Mr. K. A. Mazumdar, learned Addl. PP, submits that there is a set of evidence which firmly demonstrates that the appellant herein had extinguished the life of her own husband, and that too, by plating a dao blow on his neck on the night in question. Admitting that there is a set of evidence which supports that one Ambeswar Gogoi had killed the victim on the night in question, such evidence cannot be accepted as truthful one. 15. In that connection, it has been submitted that the witnesses who implicated said Ambeswar Gogoi as being the person responsible for killing the victim did not utter a single word before the police officer during investigation about victim being killed by such a person. They implicated such a person with the crime in question only during trial, and that too, after the death of such a person. 16. Being so, no reliance could be placed on the testimonies of those persons who implicated Ambeswar Gogoi as being the killer of the victim during the trial for the first time. Therefore there is no infirmity in the judgment under challenge as far as the finding of the court below that the accused was the person who killed her own husband on the night intervening 1st and 2nd April, 2006. 17. However, he also submits that there is indisputable evidence on record to show that it is the victim who kept on torturing his wife, the accused, all the time. 17. However, he also submits that there is indisputable evidence on record to show that it is the victim who kept on torturing his wife, the accused, all the time. Even on the night in question, materials on record reveals, the victim tried to kill his wife having involved in a quarrel with her for which, the accused had to attack her own husband killing him at the spot in exercise of right of private defence but she had exceeded the limit fixed by law while exercising such right of private defence. 18. Since the accused had to attack, injured and killed the victim in exercise of right of private defence and since she exceeded the limit fixed by law in that regard, the trial court ought to have convicted the accused person not u/s 302 IPC but u/s 304-II IPC, more particularly, when record reveals that the deceased died sustaining one injury which was inflicted on his body. He, therefore, urges this court to alter the conviction and to subject her to punishment accordingly. 19. We have considered the rival submissions having regard to the judgment under challenge and the evidence on record. We have perused the evidence of all the witnesses, more particularly, the evidence of PW 2, PW 3, PW 6 and PW 7. On considering the evidence of all those witnesses, we have found that there are materials on record to conclude that on the night in question, the accused had killed her own husband in her own house. The evidence of PW 1, PW 3, PW 5 and PW 7 makes such a position more than clear. 20. In that connection, we have gone through the evidence of the IO and found that while in custody the accused had confessed her guilt and made a statement that she would be able to show the dao, the instrument, which she used in killing her husband from the place where it was concealed and in pursuance to such information, police recovered the dao from a place where it was concealed on being shown by accused person. 21. We have also found that on the basis of statement ( Exbt. 7), so rendered by the accused person, police seized the dao from the place where it was concealed. 21. We have also found that on the basis of statement ( Exbt. 7), so rendered by the accused person, police seized the dao from the place where it was concealed. That being the position, there cannot be any doubt that on the eventful night, the accused had killed her husband at her own house and she did so with the dao which police seized during the course of investigation. Medical report also supports such a conclusion arrived at by us. 22. There is also evidence on record to show that the deceased is a drunkard and engaged in the business of selling liquor which annoyed almost all the people including his own family members. There is also unquestionable evidence on record to show that the deceased used to torture and trouble his wife almost all the time. Even on the night in question, she was troubled by the victim beyond limit. 23. When all those revelations are considered in their totality, one would find that on the night in question, the deceased provoked the accused so much so that she was forced to attack and injured her husband which caused his instantaneous death. But then, the materials on record also show that in that process, the accused had exceeded the limit of using force in exercise of right of private defence. 24. That being so, in our opinion, the trial court should not have convicted the accused person of offence u/s 302 IPC. Rather, the learned trial court ought to have convicted her of offence u/s 304-II IPC. Accordingly, the conviction of the accused person stands modified from a conviction u/s 302 IPC to a conviction u/s 304-II IPC. 25. Having regard to the facts and circumstances, narrated herein before, we are of the opinion that the accused needs to be treated little leniently. We have also found that the accused has been in jail for last 4 years. 26. In view of above, the accused is sentenced to suffer imprisonment for a period which she had already undergone in jail. 27. Resultantly, the appeal is partly allowed as indicated above. 28. Return the LCR forthwith.