Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 192 (GAU)

Samaru Majhi v. State of Assam

2017-02-10

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT AND ORDER : Manojit Bhuyan, J. (Oral) The sole appellant Samaru Majhi has been convicted under Section 302 of the IPC for causing the death of his wife Asha Majhi, aged about 27 years and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.3,000/- with default stipulations. 2. The case of the prosecution is that the appellant used to live with his parents, his wife and two children. A commotion was raised by the two children at about 11 P.M. of 12.11.2007. Rabilal Majhi (P.W.-1), who is the father of the appellant, hurriedly went out of his room and on entering the room of the appellant he saw the latter running away from the rear end of the house with an axe in his hand. P.W.-1 also saw Asha lying on the bed in injured state. Next morning, Rabilal informed Lasman Murah (P.W.-4), who is the Gaonburah of the village, about the incident. Lasman informed Uttam Tamuli (PW-8), who is the Secretary of the Village Defence Party, who in turn informed the Police over telephone. Personnel from Digboi Police Station arrived at the place of occurrence and during their stay, the appellant came out from the nearby bamboo plantation with the axe (Mat. Ext.1) in hand, which he handed over to the Police. The same was seized vide Seizure List (Ext.1). 3. Ejahar in the case was lodged by Rabilal Majhi (P.W.-1) vide FIR (Ext.3) dated 13.11.2007, at around 7.45 A.M. and the same was registered as Digboi P.S. Case No.218/2007 under Section 302 IPC. Md. Abdul Hannan (P.W.-9), in his capacity as the Sub-Inspector of Police of Digboi Police Station took up the charge of investigation. In the course of the investigation, Inquest was held, statements of witnesses were recorded, the dead body of Asha Majhi was sent for post-mortem examination. Upon completion of investigation, Charge Sheet against the appellant was submitted under Section 302 IPC. The case was committed to trial. Formal charge under Section 302 IPC was framed and the same was read over and explained to the appellant to which he pleaded not guilty and claimed to be tried. 4. To bring home the guilt of the appellant, the prosecution examined as many as 9(nine) witnesses including the Medical Officer and the Investigating Officer in the case. Formal charge under Section 302 IPC was framed and the same was read over and explained to the appellant to which he pleaded not guilty and claimed to be tried. 4. To bring home the guilt of the appellant, the prosecution examined as many as 9(nine) witnesses including the Medical Officer and the Investigating Officer in the case. The appellant was examined under Section 313 Cr.P.C. and was also heard on the point of sentence. 5. The medical evidence brought on record by Dr. K.C. Paul (P.W.-7) through the Post-Mortem Report (Ext.3) described the following injuries on the person of Asha Majhi. "1. Diffused swelling on the back side of the chest. Size 14 c.m. x 10 c.m. On dissection 7th and 8th ribs fracture seen on left side. Multiple laceration of the left lung with pleurae. Coleetion of blood on the left chest cavity of 250 m.l. Injuries caused by blunt object. 2. Chest: Middle of the chest around 4th and 5th vertebrae position. Blackish discolouration. On dissection hemorrhage present over manubrium sterno 50 m.l. of blood collection. 3. Laceration on the right forearm horizontal 3 c.m. x ½ c.m. caused by blunt object. 4. Laceration on the left forearm horizontal 2 c.m. x ½ c.m. caused by blunt object." In the opinion of the doctor, death was caused due to shock and hemorrhage as a result of injuries sustained , which were ante-mortem in nature. Further opinion is that the Injury No.1 was sufficient to cause death in the ordinary course of nature. 6. The deposition of Rabilal Majhi (P.W.-1) is to the extent that around 11 P.M. on the date of the incident he woke up from sleep hearing hue and cry raised by the two children of the appellant. On entering the appellant's room, he saw the appellant running away with an axe in his hand. He also saw Asha Majhi, wife of the appellant, lying on the bed with both hands broken and injury on her back caused by the blunt side of the axe. He informed the Village Headman about the occurrence and thereafter lodged Ejahar before the Police Station. In cross, he stated that his daughter-in-law Asha Majhi was having illicit relation with the neighbour Gabbar Singh. On the date of the incident, that person had come and his son had caught them red handed, which resulted in the incident taking place. He informed the Village Headman about the occurrence and thereafter lodged Ejahar before the Police Station. In cross, he stated that his daughter-in-law Asha Majhi was having illicit relation with the neighbour Gabbar Singh. On the date of the incident, that person had come and his son had caught them red handed, which resulted in the incident taking place. Joymoti Majhi (P.W.-2), as the wife of P.W.-1 and mother of the appellant, deposed that she got woken up at night hearing the children weeping. She also stated that she heard from her husband (P.W.-1) that the appellant pushed him and went out of the house with axe in hand. She deposed that she saw injuries on both hands and on the back of her daughter-in-law Asha Majhi. According to her, at the time of the incident, Asha was 3(three) months pregnant. She saw the dead body of Asha on a bed laid on the ground. 7. The testimony of Bijoy Moran (P.W.-3), Monoj Kr. Singh (P.W.-6) and the V.D.P. Secretary Uttam Tamuli (PW.-8) are to the extent of being seizure witnesses. P.W.-3 and P.W.-8 also stated that while they were present at the place of occurrence, the appellant surrendered before the Police present with an axe in hand, whereupon, the axe was seized vide Seizure List (Ext.1). Md. Abdul Hannan (P.W.-9) is the Police officer who took up the investigation of the case. He stated that he visited the place of occurrence and found the dead body of Asha Majhi lying on the ground in the room. The body was taken out to the verandah and Inquest was held. He had examined the witnesses present by recording their statements and had also sent the dead body for post-mortem examination. He also deposed that in the course of examination of the witnesses, the appellant surrendered along with an axe, which was seized in presence of witnesses vide Ext.1. The appellant was arrested and brought to the Police station. Also, in view of the confession made by the appellant in presence of witnesses, he sent the appellant to the Court for recording of confessional statement. On finding sufficient evidence against the appellant, Charge Sheet (Ext.9) was submitted. In cross, he stated that the seized axe was not sent for forensic examination and the said axe was not stained with blood. 8. The examination of the appellant under Section 313 Cr.P.C. gains significance. On finding sufficient evidence against the appellant, Charge Sheet (Ext.9) was submitted. In cross, he stated that the seized axe was not sent for forensic examination and the said axe was not stained with blood. 8. The examination of the appellant under Section 313 Cr.P.C. gains significance. The appellant admitted that he had assaulted his wife with an axe as she picked up a quarrel. He admitted to his guilt and also stated that Police had seized the axe from him. On a pointed question as to how Asha Majhi had sustained the described injuries, he answered that those injuries were the result of blows dealt by an axe. To the penultimate question as to whether he had anything to say in his defence, the appellant stated as follows : "I married Asha about 5 years ago. I have a son and a daughter. My son is 4 years old and my daughter is 2½ years old. Around 10 p.m. the incident took place. On that day puja was held in our house. Mother and aunt went out after an altercation. I made a search for my aunt but could not trace her and returned home. I found my wife committing bad act with other person. The person ran away. On being asked she scolded me using filthy language and picked up a quarrel with me. I got angry and dealt 3 axe blows on my wife. She died. These much I have to say. I fled away taking the axe. Later I appeared along with the axe. These much I have to say." 9. From the evidence coming on record including the statements made by the appellant, as above, the prosecution had established beyond reasonable doubt that the appellant caused injuries to his wife Asha Majhi with the blunt side of the axe inside the house. There can be no second opinion but to hold that the appellant alone was the perpetrator of the crime. 10. In the backdrop of the case, Mr. There can be no second opinion but to hold that the appellant alone was the perpetrator of the crime. 10. In the backdrop of the case, Mr. K. Goswami, learned Amicus Curiae, has not challenged the conviction but contends that notwithstanding the case being established against the appellant beyond all reasonable doubt, then also on the basis of the evidence on record, an offence under Section 302 IPC is not made out and the appellant, at best, can be punished only for an offence under Section 304 Part I or Part II, as the case may be. Submission made is that the appellant had no intention to kill his wife Asha Majhi nor the same was a premeditated murder and that evidence would suggest that the incident took place on the spur of the moment following sudden and grave provocation at the instance of the deceased, which resulted in the infliction of injuries on the person of the deceased, that too, by the blunt side of the weapon of offence. It is contended that the case is covered by Exception 1 to Section 300 IPC and there being no intention to kill, it would be a case of culpable homicide not amounting to murder, falling under Part II of Section 304 IPC. 11. On the legal aspect, Section 299 IPC defines culpable homicide and an offence covering the classes of cases of culpable homicide would be murder unless it falls in any of the general Exceptions (1) to (5) to Section 300 IPC, which would bring the offence outside the preview of Section 300 IPC and make it culpable homicide not amounting to murder. Once it falls in any of the Exceptions, then it would be permissible for the Court to impose milder punishment in terms of Section 304 Part I or Part II. 12. In order to appreciate the merit or otherwise of the contention raised by the counsel for the appellant, the evidence on record is marshalled. In doing so, consideration is had to the fact as to whether there was such grave and sudden provocation that would bring the case of the appellant within the ambit of Exception 1 to Section 300 IPC. Also, whether from the circumstances appearing, there was intention to cause death. In doing so, consideration is had to the fact as to whether there was such grave and sudden provocation that would bring the case of the appellant within the ambit of Exception 1 to Section 300 IPC. Also, whether from the circumstances appearing, there was intention to cause death. The said circumstances would include the nature and size of the weapon (axe in the present case), on which parts of the body the blow(s) were inflicted, the amount of force, was it a result of a sudden fight or quarrel, whether the incident occurred by chance or was it premeditated, grave and sudden provocation, heat of passion, did the appellant take any undue advantage, did he act cruelly etc. The two most vital factors weighing in the mind of this Court are premeditation and intention to kill, in the light of the attendant circumstances. 13. The appellant and the deceased were man and wife. There is no evidence to suggest any previous animosity or difference of opinions resulting in frequent quarrels between the parties. Neither any evidence is brought on record that the appellant was given to alcohol dependence or on the fateful night he was in an inebriated condition. The couple had sired two children-a 4 year old son and a 2½ year old daughter, as on the date of the incident. The deceased was also 3(three) months pregnant, according to the testimony of Joymoti Majhi (P.W.-2), the mother of the appellant. From the examination of the appellant under Section 313 Cr.P.C., the deceased had picked up a quarrel with the appellant whereupon he assaulted her with an axe. The cause of the quarrel, as explained by the appellant, is that on the fateful day there was a religious ceremony in the house. The appellant's mother and his aunt had an altercation and the aunt left the house, whereupon the appellant went out looking for her. Not finding her, he returned home. It was around 10 P.M. Back in the house he found his wife committing "bad act" with another person, who ran away. On being asked, his wife scolded him with filthy language and picked up a quarrel with him. The appellant driven to anger, dealt 3(three) axe blows on his wife, which resulted in her death. Thereafter, he fled taking the axe, to appear later along with the axe. On being asked, his wife scolded him with filthy language and picked up a quarrel with him. The appellant driven to anger, dealt 3(three) axe blows on his wife, which resulted in her death. Thereafter, he fled taking the axe, to appear later along with the axe. The element of immorality on the part of the wife was also brought to fore by Rabilal Majhi (P.W.-1), the informant and father of the appellant, in his testimony before the Court. 14. Medical evidence shows injuries caused by blunt object. The weapon of offence is an axe, which certainly has a sharp side generally employed to chop wood etc. According to the Doctor (P.W.-7), out of the 4(four) injuries sustained, the Injury No.1 on the back side of the chest of Asha Majhi proved to be fatal. Inference made is that the impact of the other 3(three) injuries, as such, was not held sufficient to cause death in the ordinary course of nature. From the statement of the appellant, while admitting to his guilt, it is also clear that his deceased wife scolded him with filthy language and picked up a quarrel. He was driven to such anger that he dealt axe blows on her, which resulted in her death. There is no evidence to suggest that the appellant had committed the crime with any premeditation. At the same time, the act of the appellant with the intention to cause death cannot be ruled out, in as much as, it was not a solitary fatal blow even by the blunt side of the axe but with another blow on the front side of the chest around the 4th and 5th vertebrae position, together with blows causing lacerated wounds on both the right and left forearms, all caused by blunt object. 15. As discussed above, premeditation and intention to kill are two vital circumstances, amongst others, which has to be considered before holding the appellant guilty of offence under Section 302 IPC or Section 304 IPC. Evidence on record establishes intention to cause death but not premeditation. The act was the result of grave and sudden provocation where the appellant was abused and ill-treated by the deceased by picking up a quarrel with him. 16. Evidence on record establishes intention to cause death but not premeditation. The act was the result of grave and sudden provocation where the appellant was abused and ill-treated by the deceased by picking up a quarrel with him. 16. In the facts and circumstances, the case of the appellant falls within the ambit of Exception 1 of Section 300 IPC and hence under Section 304 Part I IPC. Having held thus, we set aside the conviction of the appellant under Section 302 IPC as well as the sentence of life imprisonment and instead convict him under Section 304 Part I of the Indian Penal Code and impose a sentence of 10 (ten) years rigorous imprisonment. The sentence of fine is however affirmed. It is informed that the appellant has been in jail for 11 years 6 months 9 days (including remission) as on date. He be released on having undergone the jail sentence awarded by us. To the extent above, this appeals stands partly allowed.