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2016 DIGILAW 711 (GAU)

Biru Duwarah v. State of Assam

2016-08-02

AJIT SINGH, N.CHAUDHURY

body2016
JUDGMENT AND ORDER (N.Chaudhury, J) The prosecution story is that one Mousumi Duwarah lodged an ejahar with the officer-in-charge of Majuli police station on 19.5.2012 informing that on the previous day at about 5 pm when she was sweeping the front court yard of the house, her father–in-law, Biru Duwarah (accused herein) came to house and pushed his wife Anu Duwarah outside the house and then hacked a blow on the right side of her neck with a sharp dao. Anu Duwarah fell down on the ground and died instantaneously. The accused immediately thereafter ran towards the jungle in the eastern direction of the house. The informant got the ejahar ready through one Dibakar Saikia and then filed it. Majuli P.S. Case No.23 of 2012 under Section 302 IPC was accordingly registered and S.I. Musfic Ali was entrusted with the investigation. The accused was arrested on 19.5.2012 at about 11 am and his confessional statement was recorded on 22.5.2012 by the learned SDJM, Majuli wherein he confessed to have killed the deceased. The accused stated in course of confession that he requested his wife to give him betel nut but she gave him a solid one and not split betel nut. When he raised objection, she muttered and then he also rebuked her. There was altercation when he dealt a blow on the neck of his wife with a dao in his hand resulting in death of the victim. Then he fled away to jungle and spent the night there where from police arrested him on 19.5.2012 at about 11 am. After investigation, police submitted charge sheet against the accused and thereupon the case was committed to Sessions. The learned Sessions Judge framed the following charge against the accused which on being read over and explained, he pleaded not guilty and claimed to be tried: Charge “That you on of about 18.5.2012 at about 5 p.m. evening at Dakhin Pat Purani Satra Gaon committed the murder of your wife Smt. Anu Dowarah with an intention to cause her death.” 2. In course of trial, prosecution examined as many as 14 witness including Mousami Duwarah as an eye witness. The confession was exhibited as Exhibit- 14 by examining the learned Magistrate as PW-14. 3. PW-2 is an eye witness. In course of trial, prosecution examined as many as 14 witness including Mousami Duwarah as an eye witness. The confession was exhibited as Exhibit- 14 by examining the learned Magistrate as PW-14. 3. PW-2 is an eye witness. She stated in no uncertain words that on the fateful day, at about 5 p.m., the accused dealt a dao blow on the right side of the neck of her mother-in-law, Anu Dowarah causing her instantaneous death. The accused immediately thereafter ran towards the jungle. She became afraid having seen the ghastly scene and ran to the house of her sister-in-law Mamu Dowarah and informed her about the whole incident. Thereafter, she got the ejahar written by PW-1 Dibakar Saikia and lodged it with the police station. Police came and took the dead body for post mortem and also proceeded to trace out the accused. The short cross examination of PW-2 could not make any difference whatsoever and thus the deposition of the eye witness virtually went unrebutted. 4. PW-1 proved that he prepared the ejahar at the instance of PW-2. PW-3 is the brother of the accused. He came after the incident had taken place and found the dead body lying in the courtyard with cut injuries. Police observed the dead body and prepared report. Exhibit- 3 is the seizure list whereby a sky blue wrapper of the deceased was seized by the police. PW-3 signed the seizure list as a witness. PW-4 is the daughter of the accused and the deceased. She supported the deposition of PW-2 by saying that PW-2 informed her about the incident and then she visited the place of occurrence to find the dead body of her mother with cut injuries. Her statement was recorded before the Magistrate under Section 164 Cr.P.C. and it was exhibited as Exhibit-4. Her statement made in Exhibit-4 was duly corroborated in her deposition as PW-4. PW-5 is the son-in-law of the deceased and the victim. He also stated that PW-2 informed them about the incident and thereupon visited the place of occurrence to notice the dead body in the court yard with cut injuries. He was also examined under Section 164 Cr.P.C. before the Magistrate and his statements were marked as Exhibit-5. The statements made by this witness was same as that of his statement under Section 164 Cr.P.C.. He was also examined under Section 164 Cr.P.C. before the Magistrate and his statements were marked as Exhibit-5. The statements made by this witness was same as that of his statement under Section 164 Cr.P.C.. PW-6 did not add any new fact .PW-7 who was the ambulance driver was witness in the inquest report (Exhibit-6). PW-8, Prosanta Borah is a neighbour. The deceased was his relative and having come to know about her murder, he went to the place of occurrence. However, the dead body had already been taken to hospital. At that time, the accused was not present in his residence and later on he was apprehended by police. According to him, accused led police to the backside of the house within his compound and showed where he had kept a dao (machete) used for commission of the offence. Material Exhibit-1 is the said dao and Exhibit-7 is the seizure list thereon where he signed as Exhibit-7(1). There was no virtual cross examination of this witness in regard to discovery of the weapon. PW-9, Amarjyoti Borah is yet another witness to this discovery and he also signed Exhibit-7 as witness and Exhibit-7(2) was his signature. PW-10 is the doctor who prepared the post mortem report (Exhibit-8) and gave the opinion that the deceased died due to circulatory failure as there was excessive blood loss from the cut of the neck vessels and muscles caused by incised wound which is ante mortem and homicidal in nature. PW-11 is yet another witness of Exhibit-7 and deposed to have seen discovery of the weapon on the lead of the accused. Exhibit-7(3) is his signature . But in course of cross examination, he denied to have seen the recovery. PW-12 is the Investigating Officer. PW-13 is a Junior Scientific Officer of the FSL , Kahilipara who proved the serological report of blood received from the wrapper of the deceased. Exhibit-12 is the report and Exhibit-13 is the forwarding letter. 5. PW-14 is the Chief Judicial Magistrate, Morigaon who had recorded the confessional statement of the accused on 22.5.2012. He stated that on 20.5.2012, the accused was brought to him but without recording the statement, he directed that the accused should remain under the custody of the jail authority for the night and to produce him on 22.5.2012 at 10 am so as to give him a scope for reflection. He stated that on 20.5.2012, the accused was brought to him but without recording the statement, he directed that the accused should remain under the custody of the jail authority for the night and to produce him on 22.5.2012 at 10 am so as to give him a scope for reflection. On 22.5.2012, the accused was produced at 11 am. He explained the consequence of confession to the accused and then gave him three hours time for further reflection and then after three hours, he recorded his statement. Exhibit-14 is the confessional statement wherein in Exhibit-14(1 to 4) are the signatures of the accused and Exhibit-14(5 to 10) are his signatures as recording officer. He proved the certificate given at the end of the confession as Exhibit-14 (11) wherein he signed as Exhibit-14(12) and Exhibit-12(13). In course of cross examination, he stated clearly that he had explained to the accused that he was not bound to make any confession and that confession made by him would be used against him. The explanation was interpreted by him in Assamese language though certificate was written in English. Having gone through the deposition of PW-14, it appears that the learned Magistrate took caution before recording the confessional statement. The deceased remained in jail custody for three days w.e.f. 20.5.2012 and ultimately confession was recorded on 22.5.2012. Police was nowhere in the scene during this intervening period and so there was no scope of duress or coercion by police. The confessional statement vide Exhibit-14 stands corroborated by the clear testimony of eye witness, PW-2. The learned Sessions Judge having considered all these materials available on record passed the impugned judgment and order dated 17.9.2014 holding that the charge has been proved beyond reasonable doubt against the accused and accordingly convicted him under Section 302 IPC. The accused was heard on sentence and thereupon rigorous imprisonment for life with fine of Rs.5,000/- ,in default to undergo rigorous imprisonment for another six months was awarded to him. The accused was all along in detention since his arrest on 19.5.2012. 6. The aforesaid judgment of conviction and sentence has been challenged by way of this jail appeal. 7. We have heard Ms. R.D Mozumdar, learned Amicus Curiae and Ms. S Jahan, learned Additional Public Prosecutor. We have gone through the records including the deposition of the witnesses and the documents exhibited. 8. Ms. 6. The aforesaid judgment of conviction and sentence has been challenged by way of this jail appeal. 7. We have heard Ms. R.D Mozumdar, learned Amicus Curiae and Ms. S Jahan, learned Additional Public Prosecutor. We have gone through the records including the deposition of the witnesses and the documents exhibited. 8. Ms. R.D.Mozumdar, learned Amicus Curiae would argue that the deceased did not have any intention to cause murder of his wife. There was altercation only in regard to a betel nut. The deceased offered a cup of tea to the accused who rather requested the deceased to give him betel nut. But since a solid betel nut was given without splitting the same, he raised objection and this triggered into a sudden anger and he inflicted blow. It is, therefor, a culpable homicide not amounting to murder, the learned Amicus Curiae argued. 9. Per contra, Ms. S Jahan, learned Additional Public Prosecutor would argue that the accused had the knowledge that inflicting a blow with a sharp dao would result in death of the accused and even thereafter he chosen a sharp dao for inflicting the blow. He dealt such a heavy blow that apart from cutting the right side of the neck it reached a part of the chest as well and this shows that the intention of the accused was not merely to beat his wife but to cause her death. The accused, therefore, is guilty of murder under Section 302 IPC and there is no question of converting sentence. 10. Having heard the learned counsel for both the sides and having perused the records, it is clear that the accused dealt dao blow on the neck of his wife. He confessed the same and his confession has been corroborated by eye witness PW-2. There is no doubt about inflicting blow by the accused. The question arises as to whether the accused had intended to kill his wife. The answer is not far to seek. Had he not intended to cause death of his wife, he could have assaulted her by any other means or even by the blunt side of the dao. He did not do so. He took the dao and dealt a fatal blow on the most vital part of her body knowing fully well that a dao blow on neck is bound to cause death of the victim. He did not do so. He took the dao and dealt a fatal blow on the most vital part of her body knowing fully well that a dao blow on neck is bound to cause death of the victim. The intention of the accused, therefore, is clear. He intended to kill the deceased and accordingly dealt the fatal blow. We are in agreement with the arguments put forward by the learned Additional Public Prosecutor and do not find any reason to interfere with the conviction or sentence passed by the learned Sessions Judge. 11. Accordingly, the appeal stands dismissed.