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2016 DIGILAW 657 (GAU)

Rajesh Proja v. State of Assam

2016-07-20

AJIT SINGH, SUMAN SHYAM

body2016
JUDGMENT Ajit Singh, J. The sole appellant Rajesh Proja has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and a fine of Rs. 1,000/- with default stipulation. 2. The victim of the incident was of Lakhimoni, aged 32 years. She was former wife of appellant. 3. According to the prosecution case, on 31.10.2013, Dewan Mura (P.W.2) lodged an ejahar (Exhibit-2) at Police Station Doomdooma, District Tinsukia alleging therein that Lakhimoni had gone to the house of appellant on 17.10.2013 to enquire about her daughter, but the appellant abused her in filthy language and dealt a blow on her head with a dao. Dewan Mura also mentioned in the ejahar that since Lakhimoni was undergoing treatment in Longsoal Hospital, he could not report the matter earlier. In Longsoal Hospital, Lakhimoni was referred to the Assam Medical College and Hospital, Dibrugarh but she was not taken there by Dewan Mura. Lakhimoni was then re-admitted on 29.10.2013 in Longsoal Hospital where she unfortunately died on 4.11.2013. The police thereupon registered an offence under Section 302 of the Indian Penal Code and filed a charge sheet against the appellant after investigation. 4. Dr. Hemen Buragohain (P.W.1) conducted the post mortem examination on the dead body of Lakhimoni. According to his report, one injury on left side of scalp with a fracture of left temporal bone was found. The doctor also found that sub dural space was filled with puss. Dr. Burogahon in his post mortem report (Exhibit-1) has opined that cause of death was coma as a result of sepsis of head injury. 5. The Trial Court relying upon the evidence brought on record by the prosecution convicted and sentenced the appellant as aforesaid. 6. Lila Proja (P.W.3) has testified that Lakhimoni had come to her house on the date of incident sometime in the evening had asked for a glass of water. According to her evidence, as she was offering water, the appellant also came and dealt a blow to Lakhimoni with a dao. Lila has further testified that appellant after assaulting Lakhimoni immediately ran away. This witness has admitted in her cross-examination that appellant had assaulted Lakhimoni when she went inside to bring water and, as such, she could not actually see the assault by appellant. Lila has further testified that appellant after assaulting Lakhimoni immediately ran away. This witness has admitted in her cross-examination that appellant had assaulted Lakhimoni when she went inside to bring water and, as such, she could not actually see the assault by appellant. But the fact remains that the incident took place in the courtyard of this witness and she saw the appellant entering the house with a dao. Also nothing has been brought out in her cross-examination to discredit her evidence against the appellant. No reason has also been brought out why she would falsely implicate the appellant. It appears that the house of Lila is near to the house of appellant, who is former husband of Lakhimoni. Lakhimoni after leaving the appellant was living with Dewan Mura. On the date of incident, Lakhimoni went to the house of appellant to enquire about her daughter. But there a quarrel took place between them. Lakhimoni then came to the house of Lila for a glass of water and the appellant followed her. And in the house of Lila, the appellant dealt a blow on the head of Lakhimoni with a dao. The evidence of Lila has also been substantially corroborated by the post mortem examination report of Lakhimoni. We therefore find no good ground to disbelieve the evidence of Lila. 7. In view of the evidence of Lila, the learned counsel for appellant has not assailed the prosecution story which is well founded and fully proved. We accordingly confirm the finding of the trial court that appellant was alone the perpetrator of the crime. 8. The learned counsel for appellant has, however, argued that even accepting the prosecution version in totality, it cannot be said that appellant had the intention to murder his ex-wife Lakhimoni and as such, the offence will not be under Section 302 of the Indian Penal Code, but under Part I or Part II of Section 304 of the Indian Penal Code. We find sufficient force in this submission. As seen above, the appellant was in his house when Lakhimoni came to him to enquire about her daughter. Earlier Lakhimoni was his wife but after leaving him she was living as wife of Dewan Mura (PW 2). The appellant must not have liked this conduct of Lakhimoni. Therefore, when she came to his house, there was a quarrel between them. Earlier Lakhimoni was his wife but after leaving him she was living as wife of Dewan Mura (PW 2). The appellant must not have liked this conduct of Lakhimoni. Therefore, when she came to his house, there was a quarrel between them. And in the heat of passion, he dealt one blow on her head with a dao. The dao is commonly used in every household for cutting bamboo etc. It is also to be noted that though Lakhimoni was admitted in Longsoal Hospital and the doctor of that Hospital had referred her for better treatment to the Assam Medical College & Hospital, Dibrugarh, she was not taken there by Dewan Mura. Instead, Dewan Mura brought her home. And when the condition of Lakhimoni did not improve, she was readmitted in Longsoal Hospital on 29.10.2013 where she died on 4.11.2013. This position is reflected from the evidence of Dr. Madhusmita Saikia PW 12. The post mortem examination report also suggests that Lakhimoni died as a result of sepsis of head injury. Having regard to these circumstances, we are unable to believe that appellant had any intention to cause the death of Lakhimoni. It can however, safely be held that he had the knowledge that by giving a blow with a dao on the head of Lakhimoni, she would die. 9. Consequently, we set aside the conviction of the appellant under Section 302 of the Indian Penal Code and sentence of life imprisonment awarded to him thereunder and instead convict him under Section 304 Part II of the Indian Penal Code and award a sentence of 7 (seven) years rigorous imprisonment. The sentence of fine is, however, affirmed. 10. With the above modification, the appeal is partly allowed.