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2015 DIGILAW 186 (GAU)

Rohit Rohidas v. State of Assam

2015-02-16

M.R.PATHAK, PRASANTA KUMAR SAIKIA

body2015
JUDGMENT Prasanta Kumar Saikia, J. 1. This appeal is directed against the judgment and order dated 9.2.2011, passed by the learned Sessions Judge, Jorhat in Sessions Case No. 31(JJ) of 2010 convicting the accused/appellant herein of offence under Section 302 IPC and sentencing him to suffer imprisonment for life and also to pay a fine of Rs. 5000/- (Rupees Five Thousand) i/d R.I. for another 3 (three) months for the offence aforesaid. Being aggrieved and dissatisfied with the aforesaid judgment, Sri Rohit Rohidas, the accused/appellant herein (who would be referred to as accused person) has preferred this appeal citing several infirmities in the judgment under challenge. 2. We have heard Mr. R. Islam, learned Amicus Curiae for the appellant and also heard Ms. S. Jahan, learned Addl. P.P., for the State. 3. The facts, projected by prosecution during trial and which are necessary for disposal of the present appeal, in brief, are that on 05.01.2010, at about 10 pm, the appellant herein assaulted his wife, namely, Smti Putuli Rohi Das inflicting grievous injuries on her person which occasioned her instantaneous death. In that connection, Bulen Rahidas, son of the deceased, lodged an FIR with I/C, Deberapar Police Outpost on 06.10.2010. 4. On the basis of such FIR, the I/C, Deberapar Police Outpost made a GD entry and forwarded the FIR to Mariani police station for registering a case and for doing further needful. On receipt of the FIR, O/C, Mariani P.S. registered a case, vide Mariani PS. Case No. 03 of 2010 u/s. 302 of the IPC and ordered investigation. The police officer who was entrusted with the investigation of the case, during the course of investigation visited the place of occurrence, conducted inquest on the dead body sent the same to hospital for post mortem examination. 5. As he proceeded with the investigation, I/O examined the witnesses, also arrested the accused person during the course of investigation, did other needful and on the conclusion of investigation, he submitted charge sheet u/s. 302 IPC against the accused person and forwarded him to the court to stand his trial. The learned Magistrate before whom charge-sheet was so laid, committed the case to the court of Sessions since the offence u/s. 302 IPC is exclusively triable by the court of Sessions. 6. The learned Magistrate before whom charge-sheet was so laid, committed the case to the court of Sessions since the offence u/s. 302 IPC is exclusively triable by the court of Sessions. 6. On the receipt of the case on commitment and on hearing the learned counsel for the parties, the learned Sessions Judge framed charge u/s. 302 IPC against the accused person and charge, so framed, on being read over and explained to the accused person he pleaded not guilty and claimed to be tried. During trial, prosecution has examined as many as 8 (eight) witnesses including the informant, I/O as well as the Medical Officer who conducted the postmortem examination on the dead body. 7. The Statement of the accused person u/s. 313 Cr. P.C. was also recorded, where the accused admitted that on the fateful night, he assaulted his wife, the deceased. His further case was that since his wife got involved in a quarrel with him on the eventful night, he got annoyed at the conduct of his wife so much so he was compelled to assault his wife, however, he did so only to discipline her without any intention to kill her and for such killing of his wife, it cannot be held that he intended to kill his wife on the night in question 8. But when he was called upon to enter his defence, the accused person declined to adduce any evidence of his own. On conclusion of trial and on hearing the arguments, advanced, by the learned counsel for the parties, the learned court below was pleased to convict the accused of offence u/s. 302 IPC and sentenced him to punishment as aforesaid. It is that judgment which has been assailed in the present appeal. 9. Opening up the arguments on behalf of the accused person, learned Amicus Curiae submits that though the case is basically based on circumstantial evidence and although it is a settled law that in a case, based on circumstantial evidence, the conviction of the accused cannot be recorded of the offence, he was charged with, unless the prosecution is successful in establishing a chain of events, unbreakable anywhere leading to sole and lone conclusion that accused, and none else, was the author of the crime in question. 10. 10. However, in the present case, the evidence on record does not establish such a chain of events completes in all respects leading to sole and lone conclusion that the accused, and none else, was the person responsible for causing the death of the deceased on the fateful night. Situation being such, the court below was not right in convicting the accused person of offence u/s. 302 IPC. 11. Learned Amicus Curiae further submits that at the time of incident, the accused was suffering from mental sickness and as such, on the date of incident, he was not in a position to know the nature of his act or that he was doing which is either wrong or is contrary to law. In such a scenario, in view of protection/prohibition of Section 84 of the IPC, the accused person cannot be convicted of any offence. Therefore, having convicted the accused person of offence u/s. 302 IPC, the trial court did something which is not permissible under the law. 12. It is also the case of learned Amicus Curiae that even if one believes for one reason or other that on the eventful night, the accused extinguished the life of his wife, yet then, there is no reliable material on record to conclude that the accused is guilty of offence u/s.302 IPC. Rather all the materials available on record shows that the accused ought not to have been convicted of offence u/s. 302 of the IPC although on such materials, perhaps, he could have been convicted u/s. 304-II of the IPC. Therefore, the learned Amicus Curiae submits this court at least to alter the conviction of the accused person from a conviction U/s. 302 IPC to conviction U/s. 304-IIof the IPC and punish him accordingly. 13. On the other hand, learned Addl. P.P., vehemently argues that there are indisputable evidence on record to show that the accused, and none else, had caused the death of the deceased on 05.01.2010 at about 10 p.m. In that connection, he relied on the testimony of P.W. 1 and P.W. 5 before whom the accused had made an extra judicial confession admitting his guilt constituting the offence U/s. 302 of the IPC. According to learned Addl. According to learned Addl. P.P., the extrajudicial confessions, rendered before the P.W. 1 and P.W. 5, are found to be voluntary and truthful and as such, the court can safely relies on the same. 14. Even otherwise the accused is liable to be convicted of offence U/s. 302 of the IPC since in his statement u/s. 313 Cr. P.C., the accused had clearly admitted assaulting his wife on the night in question which caused her death same night. Although he claimed that he had to kill his wife under enormous provocation, pestering and annoyance but without any intention of killing her, yet, he failed to substantiate such a claim. She therefore, urges this court to dismiss this appeal on affirming the judgment of the trial court. 15. We have heard the arguments, advanced by the parties having regard to the judgment under challenge and the evidence on record. But before we proceed further, we find it necessary to have a look at the evidence on record, more particularly, the evidence of Doctor who conducted the post mortem examination on the dead body on 06.01.2010. He was Dr. Prafulla Kumar Nath and was examined as P.W. 7. His evidence runs follows:-- "External appearance A female dead body of about 45 years old of average built with whitish complexion lying in the P.M. hall. Rigor mortis present all over the body. There are multiple linear haematoma on right and left upper limb, right and left lower limb on the front and back of the chest. There is a lacerated injuries over the forehead on right side, one haematoma of 2" x 2" found on frontal area of the scalp. No ligature mark around the neck detected. Cranium and Spinal Canal-- There is a lacerated injury on right side of forehead about 1" x 2". There is also a Hamatoma of 2" x 2" of frontal area of scalp. Brain and Spinal canal: A hematoma of about 2" x 2" found on right frontal lobe. Spleen: Rupture found with fall of blood in paritomal cavity. MORE DETAILED DESCRIPTION OF INJURY OR DISEASE There is multiple limian hematoma over the body as described. There is also lacerated injuries over right forehead and there is a intracranial hematoma on right frontal lobe. Rupture of spleen pressed with bleeding to the peritoneal cavity. The injuries ante mortem in nature and is caused by blunt object. MORE DETAILED DESCRIPTION OF INJURY OR DISEASE There is multiple limian hematoma over the body as described. There is also lacerated injuries over right forehead and there is a intracranial hematoma on right frontal lobe. Rupture of spleen pressed with bleeding to the peritoneal cavity. The injuries ante mortem in nature and is caused by blunt object. OPINION: In his opinion the cause of death is shock and coma following haemorrhage due to splenic rupture and cerebral haemorrhage following the injuries sustained by the deceased. Exbt. 4 is the postmortem report and Exbt. 4(1) is his signature. Rupture of the spleen was sufficient to cause instantaneous death. For rupture of the spleen, there may not be external injury. It may be caused by external pressure." 16. A careful perusal of the evidence of Doctor reveals that the death of the deceased was homicidal in nature and it occurred on or about 05.01.2010. According to Doctor, lacerated (cut) injuries on forehead and rupture of spleen had caused the death of the deceased on the night aforesaid. 17. So situated, let us consider the evidence of PW 1, Sri Rajan Suri and P.W. 5, Smt. Rupeswari Karmakar. In his evidence, P.W. 1 states that he came to know about the incident on the morning of 06.01.2010 and then he came to the house of the accused person. On his arrival at the house of the accused person, he noticed that deceased lying dead in her house. P.W. 1, saw several cut injuries on the body of the deceased. When he asked the accused as to how his wife met her death, he replied: "I always tried to kill her but was unsuccessful; she died today when I stabbed her with a hot sickle." 18. In that context, one needs to consider the evidence of P.W. 5 as well. According to her, the accused and the deceased used to quarrel quite frequently. One day in the morning, she found so many people gathered in front of the house of accused person and as such, she went there and found wife of the accused lying deed with so many injuries on her body. The accused person was also present there. When she asked the accused as to how his wife met her death, the accused replied that "inevitable had happened". The accused person was also present there. When she asked the accused as to how his wife met her death, the accused replied that "inevitable had happened". Though P.W. 1 and P.W. 5 were cross-examined nothing did emerge there from to show that the evidence rendered by those two PWs should not be relied on for any reason whatsoever. 19. PW 3, Sri Bulen Rahidas is the son of the deceased. According to him, on the fateful night, he was not in his house. When he came to his house next day in the morning, he found his mother lying dead with so many injuries on her body. In that connection, he also lodged an Ejahar which he proved as Ext. 3. According to him, in the course of investigation, police conducted inquest on the body of his mother and prepared a report in that connection which he proved as Ext. 2, Ext. 2(2) is his signature therein. A sickle was also seized by police on the strength of seizure list Ext. 1. In his cross examination he specifically stated that his father was not mentally ill during the time under consideration. 20. It may be stated that P.W. 4, Shri Babatu Rahidas has also stated that on the night in question, the accused person came to his house and told him that his wife was having some problem but he did not go to the house of the accused person on the night aforesaid. He (P.W. 4) came to the house of the accused person next day in the morning only and found that the deceased lying dead in her house with so many injuries on her body. P.W. 2, Dipu Rohidas and P.W. 6 Smt. Chalanti Karmakar are the witnesses who came to know about the incident in question from others. 21. On the perusal of evidence of P.W. 1 and P.W. 5, we have found that the accused did make extra judicial confessions before the P.W. 1 and P.W. 5. Such extra judicial confessions seem to be voluntary and truthful inasmuch as the cross examination of these PWs reveals nothing to show that the accused person made such confessions to the PW 1 and PW 5 under some kind of compulsion which in turn shows that aforesaid confessions are voluntary and such confessions are truthful as well. 22. Such extra judicial confessions seem to be voluntary and truthful inasmuch as the cross examination of these PWs reveals nothing to show that the accused person made such confessions to the PW 1 and PW 5 under some kind of compulsion which in turn shows that aforesaid confessions are voluntary and such confessions are truthful as well. 22. On the perusal of evidence of P.W. 1, P.W. 2, P.W. 3, P.W. 4 & P.W. 5, it would appear clear that on the night in question the accused and the deceased were alone in their house and on that night accused injured his wife by inflicting sickle blows on various parts of her body. The evidence so rendered by aforesaid PWs, more particularly P.W. 1 and P.W. 5 finds supports from the evidence of Doctor who says that the deceased died a homicidal death on sustaining lacerated injuries on head and rupture of spleen. 23. Therefore, in our opinion, prosecution has proved that the accused, and none else, had assaulted and killed his wife, and that too by sharp weapon, on the night of 05.01.2010. In his statement u/s. 313 Cr. P.C., the accused had admitted to have assaulted and killed his wife on the night of 05.01.2010. Such admission made by accused person while examining u/s. 313 Cr. P.C., further fortifies that the accused is the author of the crime in question. 24. Though learned Amicus Curiae submits that at the time of incident, the accused was suffering from unsoundness of mind and as such, he was not in a position to know the nature of his act or that what he was doing was either wrong or contrary to law and as such, he could not have been convicted of offence u/s. 302 IPC in view of protection provided u/s. 84 of the Indian Penal Code. However, such claim remains far from being established, more so, when the son of the accused person in no uncertain term claims that at no point of time, the accused had been suffering from insanity of any kind. 25. Learned Amicus Curiae further submits that there are evidence on record to show that on the fateful night, accused had quarrel with his wife and he assaulted and killed his wife in the heat of passion in a sudden quarrel without any premeditation. 25. Learned Amicus Curiae further submits that there are evidence on record to show that on the fateful night, accused had quarrel with his wife and he assaulted and killed his wife in the heat of passion in a sudden quarrel without any premeditation. Being so, on the materials on record, the accused/appellant could not have been convicted of offence u/s. 302 of the IPC. 26. We have considered such submissions in the light of evidence on record and found that there is nothing on record to show that on the night in question there was a quarrel between the husband and wife for which the accused lost his temper as a result of which he assaulted and killed his wife. In view of above, we are constrained to conclude that the defence could not show that on the night in question, the accused had to kill his wife after entangling in a fierce quarrel with the later. 27. In view of above revelations, we have found that accused has rightly been convicted by the trial court of offence u/s. 302 IPC and has rightly been sentenced to punishment as aforesaid. Therefore, the judgment of the trial court which is questioned in this present appeal does not invite any interference. 28. In the result, this appeal is dismissed, same being found devoid of merit. 29. Return the LCR. We deeply appreciate the assistance rendered by Mr. R. Islam, learned Amicus Curiae. We, therefore, direct the State to pay him Rs. 7,000/- (Rupees Seven Thousand) as being his professional fee. We further direct the State to pay such fee within a period of 3 (three) months from the date of receipt of a certified copy of this judgment. Appeal Dismissed.