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2018 DIGILAW 1652 (GAU)

Tarun Das S/o Lt. Dinti Das v. State of Assam

2018-11-28

HITESH KUMAR SARMA, MIR ALFAZ ALI

body2018
JUDGMENT : Hitesh Kumar Sarma, J. This criminal appeal, preferred from jail, by the accused-appellant, against the judgment and order, dated 27.01.2015, passed by the learned Sessions Judge, Jorhat, in Sessions Case No. 63(JJ)/213, convicting and sentencing the accused-appellant to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/- with a default clause, under Section 302 IPC. The fact of the prosecution case is that, the accused-appellant, on 3.3.2013, in the midnight, assaulted his wife resulting in her death. This incident was witnessed by PW1/minor daughter of the deceased as well as the accused-appellant. On coming to know about the occurrence, PW2, Smt. Makon Das, lodged the FIR with the Madhupur Police Outpost. 2. After entering such information in the General Diary, Madhupur Police Outpost, forwarded the FIR to the Titabar Police Station which registered a case, being Titabar PS Case No. 50/2013 under Section 302 IPC, investigated into it, collected evidence, and on completion of investigation, laid the charge-sheet against the accused-appellant for commission of an offence under Section 302 IPC. 3. After exhausting all the required legal formalities, the trial court framed a formal charge against the accused-appellant under Section 302 IPC. The accused-appellant pleaded innocence to the charge and claimed to be tried. Therefore, the trial commenced. 4. During the trial, prosecution examined as many as 10 (ten) witnesses who were cross-examined by the defence. After closure of the prosecution evidence, statement of the accused-appellant was recorded under Section 313 Cr.PC. In his such statement, he is heard denying the allegations made against him. Defence declined to adduce evidence. 5. We have heard learned amicus curiae for the accused-appellant, Mr. M.B.U. Ahmed. Also heard Ms. S. Jahan, learned Additional Public Prosecutor for the state respondent No. 1. 6. We have also scanned the evidence of the witnesses as well as the impugned judgment. 7. Now, let us look into the evidence to find out whether the accused-appellant had committed the offence of murder of his wife/deceased, Aruna Das, and, for that purpose, let us first examine the evidence of the Autopsy Doctor, examined as PW9. 8. On postmortem examination on the dead body of the deceased, the PW9 found as follows. One healthy female adult dead body of swarthy complexion of average built wearing a red blouse and green petticoat. Body cold on touch. Rigor-mortis present and fully developed over whole body. 8. On postmortem examination on the dead body of the deceased, the PW9 found as follows. One healthy female adult dead body of swarthy complexion of average built wearing a red blouse and green petticoat. Body cold on touch. Rigor-mortis present and fully developed over whole body. INJURIES: 1. Abraded contusion of sixe 4.5 cm X 4 cm over outer aspect of left wrist joint underneath fracture dislocation of radius and ulna. 2. Abraded contusion of size 4.5 cm X 4.5 cm over back of left shoulder joint. 3. Abraded contusion of size 4 cm X 3 cm over left side of abdomen middle part. 4. Abrasion of size 4 cm X 2.5 cm over right side of abdomen middle part. 5. Contusions of sizes varying from 1.5 cm X 1.5 cm to 3.5 cm X 3.5 cm present over both lower limbs at places. MARKS OF LIGATURE ON NECK DISSECTION ETC. No ligature mark around the neck. On dissection, neck tissues are found healthy. SCALP, SKULL AND VERTEBRAE :- Contusion of size 15 cm x 15 cm present over left fronto-temporal region. Skull and vertebrae are healthy. MEMBRANE :- Congested, diffuse subdural haemorrhage over both cerebral hemispheres present. BRAIN AND SPINAL CORD :- Brain is congested. Spinal cord is not examined. All the other organs are healthy. 9. He also opined that death of the deceased was due to coma as a result of injuries sustained by the deceased and the approximate time since death was 12 to 18 hours. He has exhibited the postmortem examination report, vide Ext. 4. The doctor, during his cross-examination, disclosed that although there were other injuries on other parts of the body, the head injury is the cause of his death. 10. It appears from such evidence of the PW9 that the cause of death of the deceased is due to the injuries, particularly, the head injuries sustained by her which was ante-mortem. 11. Let us now see whether the accused-appellant had inflicted the injuries upon the deceased. On examination of the entire evidence on record, it is found that all the witnesses, except PW1 and PW4, are the witnesses who heard about the occurrence and then came to the place of occurrence to witness the deceased lying dead on the bed. 11. Let us now see whether the accused-appellant had inflicted the injuries upon the deceased. On examination of the entire evidence on record, it is found that all the witnesses, except PW1 and PW4, are the witnesses who heard about the occurrence and then came to the place of occurrence to witness the deceased lying dead on the bed. Their evidence does not throw any specific light as to the assailant as they only heard from PW1 and PW4 that it was the accused-appellant who had assaulted and caused death of the deceased. 12. PW1 is the minor witness of aged about 10 years. After examining the competence of this minor witness to testify, and on being satisfied about her competence, the learned trial court examined her on oath, as PW1. It has come out from the evidence of PW1 that they are six sisters apart from their parents in the family and her three elder sisters are already married away. Out of the remaining three sisters, one is staying in the house of her maternal uncle and the other one and herself stay with her parents. On the date of occurrence, while she was sleeping with her mother, the accused-appellant came at about 12 o’clock in the midnight and assaulted her mother causing injuries on her person. It has also been brought in her evidence by the defence, by way of cross-examination, that before the assaults were inflicted on her mother, there took place some quarrel between her mother and her father. During such quarrel, each of them threw some containers to each other. According to this witness, after throwing the containers to each other, the accused-appellant assaulted the deceased with stick and handle of the fishing spear. The defence tried to stage a story that while the accused-appellant came to his house at the relevant time of occurrence, he noticed the deceased sharing bed with another person, probably, with a view to put up a case of provocation. But, such suggestion of the defence remains a suggestion only as no effort was made to prove that suggestion by adducing any evidence or by eliciting the same from the prosecution evidence. 13. PW4 is the adjacent neighbour of the deceased and the accused-appellant. But, such suggestion of the defence remains a suggestion only as no effort was made to prove that suggestion by adducing any evidence or by eliciting the same from the prosecution evidence. 13. PW4 is the adjacent neighbour of the deceased and the accused-appellant. His evidence is that, after hearing the hue and cry at the place of occurrence following the quarrel between the deceased and the accused-appellant, he came there and tried to convince the accused-appellant not to quarrel with his wife to which he responded by saying that it was their family matter, and therefore, he asked him not to interfere in it. This PW4 also deposed that he heard from his house that the deceased was asking for water after she fell down. He heard this from his own house and he could understand it was the deceased who had asked for water by identifying her voice. That being so, the evidence of PW1 and PW4, read in combination, makes out a case, beyond all reasonable doubt that, quarrel took place between the accused-appellant and the deceased, and the accused-appellant assaulted her with the handle of the fishing spear on various parts of her body including on her head. As per the evidence of PW9, the Autopsy Doctor, the cause of death is due to head injury sustained by the deceased. Therefore, there is no doubt about the fact that the of death of the deceased was caused by the accused-appellant inflicting the fatal blow on the head of the deceased as we have not found any justifiable reason to discard the evidence of PW1 and PW4 on this count. 14. Now, the question is whether the accused-appellant intended to cause death of the deceased. The fact that a quarrel preceded before fatal assaults on the person of the deceased and each of them had thrown some containers to each other, and thereafter, the accused-appellant used the handle of the fishing spear to assault her on different parts of the body one of which hit on her head. The fact that there is a quarrel took place, as indicated above, and thereafter, the assault ensued upon the deceased and also the fact that the accused-appellant could have used the fishing spear itself instead of its handle to inflict the assaults on the deceased had he intended to cause death of the deceased. The fact that there is a quarrel took place, as indicated above, and thereafter, the assault ensued upon the deceased and also the fact that the accused-appellant could have used the fishing spear itself instead of its handle to inflict the assaults on the deceased had he intended to cause death of the deceased. He did not use the pointed part of the fishing spear is indicative of the fact that he did not intend to cause death of the deceased. There was also no reason for him to know that such assaults are so imminently dangerous that, it must, in all probability, cause death or such bodily injury as is likely to cause death. That being so, in the considered view of this court, the offence in the instant case is covered by Clause “fourthly” of Section 300 IPC. 15. Therefore, the conviction of the accused-appellant, recorded by the learned trial court, under Section 302 IPC, is converted to one under Section 304, Part II, of the IPC, and accordingly, the sentence is also modified to 6 years rigorous imprisonment and the fine amount is reduced to Rs. 3,000/-, and, in default of payment of fine, rigorous imprisonment for 3 months for commission of the offence under Section 304, Part II of the IPC. 16. In view of above, the appeal is partly allowed with the modification of the penal provision, the substantive sentence as well as fine amount and the default clause, as indicated above. 17. The period of detention already undergone by the accused-appellant in judicial custody, during investigation, trial, and after the delivery of the impugned judgment, be set off against the substantive sentence. 18. This court records its appreciation for the assistance rendered by learned Amicus Curiae. The learned Amicus-curiae be paid an amount of Rs. 7,500/- as remuneration. 19. Send down the LCR with a copy of this judgment.