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2018 DIGILAW 1610 (GAU)

Jagir Singh v. State of Assam

2018-11-14

HITESH KUMAR SARMA, MIR ALFAZ ALI

body2018
JUDGMENT & ORDER : H.K. Sarma, J. This Criminal Appeal has been preferred from jail by the appellant, Sri Jagir Singh, against the judgment, dated 30.08.2016, passed by the learned Additional Sessions Judge No. 1 (FTC), Tinsukia in Sessions Case No. 88(M)/2015 convicting the appellant for offence under Section 302 of Indian Penal Code and sentencing him to undergo rigorous imprisonment for life and fine of Rs. 30,000/-, in default, to suffer further rigorous imprisonment for 6 (six) months. 2. The prosecution case is that, on 08.12.2014, at about 8:30 pm, the accused-appellant assaulted his wife-deceased, Nirmali Singh with a wooden stick causing injuries on the vital parts of her person, resulting in her death. The occurrence took place in the house of the accused-appellant. 3. On receipt of the FIR, the Pengeri Police Station registered a case, being No. 64/2014, under Section 302 of the IPC, investigated into it, collected evidence, and finally, submitted charge-sheet under Section 302 of the IPC against the accused-appellant. 4. After exhausting all the required legal formalities, the case came up before the learned Additional Sessions Judge No.1, (FTC), Tinsukia for trial. The learned Additional Sessions Judge framed a formal charge against the accused-appellant under Section 302 of the IPC to which he pleaded innocence and claimed to be tried. Therefore, the trial commenced. 5. The prosecution examined as many as 12 (twelve) witnesses. After closure of the prosecution evidence, statement of the accused-appellant was recorded under Section 313 of the Cr.PC. The defence declined to adduce evidence. In his statement, under Section 313 of the Cr.PC, the accused-appellant has not only denied the accusations levelled against him but has also taken the plea that the cause of death of the deceased, i.e., his wife, is due to snake bite. 6. We have perused the record of the learned trial court, including the evidence and the impugned judgment. 7. We have heard Mr. B. Prasad, learned Amicus Curiae, appearing for the accused-appellant as well as Mr. N.K. Kalita, learned Additional Public Prosecutor, appearing for the State of Assam. 8. On perusal of the evidence of all the 12 (twelve) witnesses, it transpires to this court that PW10, son of the deceased and the accused-appellant is the most vital and important witness. B. Prasad, learned Amicus Curiae, appearing for the accused-appellant as well as Mr. N.K. Kalita, learned Additional Public Prosecutor, appearing for the State of Assam. 8. On perusal of the evidence of all the 12 (twelve) witnesses, it transpires to this court that PW10, son of the deceased and the accused-appellant is the most vital and important witness. In his evidence, he deposed that the deceased was his mother and the accused-appellant is his father and that the occurrence took place, about a year back in their house. On the date of occurrence, he was present in his house. On the following day, he came to know that his mother expired. He saw injuries on the head of his mother-deceased. This witness was declared hostile by the prosecution and was subjected to cross-examination by it. In his cross-examination by the prosecution, this witness disagreed to admit that he had seen the accused-appellant/his father assaulting the deceased/his mother. But, one fact has come out from such cross-examination clearly that the accused-appellant had thrown the dead body of the deceased outside. This evidence of the PW10 makes it clearly appear that the deceased died in their house itself and that she sustained injuries on her head. Some role of his father/accused-appellant is also assigned by this witness as he has indicated, in clear terms, that his father had thrown the dead body out of the house. The inquest report, marked as Ext-3, shows that the injuries sustained by the deceased are as narrated by PW10 in his evidence and as such tallied with his evidence. The post-mortem examination report, marked as Ext-4, as produced by the Autopsy Doctor/PW7 in his evidence shows that the deceased sustained the following injuries :- “External Appearance:- I found a female body, 40 years of age with dark complexion, 5’ in length, eye and mouth closed putting one sweater and blue coloured petticoat. Rigor-mortis passed. Injuries:- 7 cm X 2 cm. Lacerated injury on volt of the scalp on left side. On deception bone under the lacerated injury. Fracture present. One 8 cm diameter haematoma present under the durameter. Brain examination:- Compression present with haematoma inside the brain. Spinal cord:- Healthy Other organs:- Healthy.” It has also been opined by PW7/Autopsy Doctor that the death of the deceased was due to comma as a result of crinio-cerebral injury sustained as described. On deception bone under the lacerated injury. Fracture present. One 8 cm diameter haematoma present under the durameter. Brain examination:- Compression present with haematoma inside the brain. Spinal cord:- Healthy Other organs:- Healthy.” It has also been opined by PW7/Autopsy Doctor that the death of the deceased was due to comma as a result of crinio-cerebral injury sustained as described. Injuries are antimortem and caused by blunt forced impact. Time since death is 12 to 24 to 36 hours. This type of injury may be caused by falling on hard substance. 9. Therefore, from the evidence of PW10, read in combination with the evidence of PW7 and the inquest report, Ext-3, leaves no doubt in the mind of this court that the cause of death of the deceased is the injuries sustained by her on her head caused by a blunt force impact. 10. The evidence of the Investigating Police Officer, examined as PW11, shows that, vide Ext-2, he seized one wooden lathi (wooden stick) lying at the place of occurrence, which according to him, was used in the commission of the alleged offence. There is no attempt by the defence even to discard such evidence of seizure of wooden stick, which, in effect, admits the use of the wooden stick in the commission of the alleged offence in view of assertive evidence of PW11 on this count. 11. The PW2, PW3, PW4, PW5 are all witnesses heard about the occurrence from PW10, the son of the deceased. According, to the evidence of these witnesses, after the occurrence, in the next morning, the PW10 went to their places and told them that his father/accused-appellant had killed his mother/deceased. The PW1 is heard denying such fact in its evidence. But, there are some circumstances which lead to an inference that it was none but the accused-appellant who caused the death of the deceased. The evidence of PW1 shows that the accused-appellant reported to him that while the deceased was fishing, she died because of snake bite. But, the medical evidence on record, vide Ext-4, the possibility of death of the deceased because of snake bite is completely ruled out and this theory of snake bite being the cause of death of the deceased has been reiterated by the accused-appellant in his statement under Section 313 of the Cr.PC. 12. But, the medical evidence on record, vide Ext-4, the possibility of death of the deceased because of snake bite is completely ruled out and this theory of snake bite being the cause of death of the deceased has been reiterated by the accused-appellant in his statement under Section 313 of the Cr.PC. 12. It is clear from such evidence on record that the accused-appellant had given a false information to the PW1 as to the cause of death of his wife as well as has taken a false plea in his statement under Section 313 of the Cr.PC, which becomes an additional link to the other circumstances to be narrated slightly later. 13. One of the circumstances in this case is that the deceased died in the house of the accused-appellant, and as such, the accused-appellant being husband and inmate in the same house, owes an explanation as to the cause of death of the deceased which he not only failed but he attempted to stage a false story of snake bite which shows that he tried to cover up the fact of his causing the death of his wife. 14. It appears from the judgment passed by the learned trial court that the demeanour of PW10 has been recorded there indicating that while the PW10 was leading evidence in the court, it was observed that as if he was under threat or under some pressure, meaning thereby, that he had deviated from his original stand implicating his father/accused-appellant with the commission of the crime. 15. The evidence of PW1 also makes it appear that both the deceased and the accused-appellant are in the habit of taking liquor and they used to indulge in quarrel off and on. 16. In the light of the above facts and the circumstances, this court is of the view that the decision of the learned trial court holding the accused-appellant as the assailant although correct yet the provisions of law applicable with respect to the offence would not be Section 302 of the IPC for the reasons discussed in the later part of the judgment. The learned trial court appears to have put more emphasis on the statement under Section 161 Cr.PC of the PW10 which has been exhibited by the Investigating Police Officer/PW11, vide Ext-6. The learned trial court appears to have put more emphasis on the statement under Section 161 Cr.PC of the PW10 which has been exhibited by the Investigating Police Officer/PW11, vide Ext-6. But, reliance of a statement, under Section 161 of the Cr.PC, without there being any compliance of the provisions of Section 162 of the Cr.PC, appears to be opposed to the cardinal principles of criminal jurisprudence that statement made before police cannot be acted upon to hold a person guilty. 17. We have heard the learned Amicus Curiae who has pressed and tried to impress upon this court that the cause of death is due to a single blow on the head of the deceased and the injuries were caused by the wooden stick. The accused-appellant and the deceased belong to a poor class of the society, illiterate and tea garden labourers. Therefore, considering such background, and the weapon used in commission of the offence as well as the fact that the fatal injury was caused by the single blow only, this court is of the view that the accused-appellant did not intend to commit murder of the deceased, and therefore, he deserves to be convicted under Section 304-Part II of the IPC instead of Section 302 of the IPC. 18. Accordingly, the accused-appellant is convicted under Section 304-Part II of the IPC and is sentenced to rigorous imprisonment for 6 (six) years and a fine of Rs.2,000/- and in default of payment of fine, to suffer simple imprisonment for another term of 3 (three) months. 19. The period of detention of the accused-appellant in custody, during investigation, trial and after the completion of the trial, be set off against the substantive sentence. 20. Accordingly, this jail appeal is partly allowed. 21. Send down the LCR with a copy of this judgment. 22. This Court appreciates the assistance rendered by the learned Amicus Curiae and directs that an amount of Rs. 7,500/- be paid to the learned Amicus Curiae as honorarium for the assistance rendered by him.