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2019 DIGILAW 1044 (GAU)

Jiten Mahili v. State Of Assam

2019-09-16

M.R.PATHAK, SONGKHUPCHUNG SERTO

body2019
JUDGMENT : S.Serto, J. Heard Mr. Zakir Hussain, learned Amicus Curiae for the appellant and also heard Mr. T.K. Misra, learned Additional Public Prosecutor appearing for the State of Assam. 2. This is an appeal directed against the judgment and sentenced order dated 18.07.2017 passed by the learned Sessions Judge, Jorhat in Sessions Case No. 177(J-J) of 2014 arising out of G.R. Case No. 680/2013 and Mariani P.S. Case No. 44/2013, wherein, the appellant was convicted of the offence under Section 302 of the IPC and sentenced to undergo rigorous imprisonment for life with fine of Rs.10,000/-, in default of which, to further undergo rigorous imprisonment for 6(six) months. 3. The facts and circumstances which led to the filing of the appeal are as follows:- That on 27.03.2013 one Smt. Mamila Mahili of Hoolonguri Tea Estate lodged an ejahar before the In-charge, Deberapar police out-post under Mariani police station in Jorhat district stating that at around 1:30 P.M. of that day Shri Jiten Mahili of Hoolonguri Tea Estate had killed her husband by kicking him and by giving him fist blows. On receipt of, the same it was entered in General Diary Register Vide No. 552 and it was forwarded to Mariani police station for registering a case under relevant section of law. The Mariani police on receipt of the same registered Mariani P.S. Case No. 44/2013 under Section 302 of IPC. After the registration of the FIR, the case was investigated by S.I. Sofiqual Islam. The investigating officer recorded the statements of 8(eight) witnesses during the investigation and also collected the post mortem report. During the investigation two of the witnesses' one being wife of the deceased and the other one Shri Ganesh Mridha gave their statements under Section 164 of Cr.P.C before the investigation officer. The accused surrendered on 10.06.2013 before the Addl. Chief Judicial Magistrate, Jorhat. 4. After the investigation was over, the investigation officer submitted a charge-sheet before the CJM, Jorhat under Section 302 of IPC. The learned CJM, Jorhat on receipt of the charge-sheet committed the same to the Court of learned Sessions Judge, Jorhat. Before the learned Sessions Judge, the prosecution examined 12(twelve) witnesses including the I/O of the case and the Medical Officer who conducted the examination-in-chief. The accused did not examine any witness. After the accused was examined under Section 313 of Cr.P.C, the P.P and the defence counsels were heard. Before the learned Sessions Judge, the prosecution examined 12(twelve) witnesses including the I/O of the case and the Medical Officer who conducted the examination-in-chief. The accused did not examine any witness. After the accused was examined under Section 313 of Cr.P.C, the P.P and the defence counsels were heard. The learned Sessions Judge, Jorhat found the accused guilty of having committed the offence punishable under Section 302 of IPC accordingly convicted and sentenced him as and stated above. Not being satisfied with the conviction and sentence, the accused has come before this Court on appeal. 5. Mr. Z. Hussain, learned Amicus Curiae submits that the evidence produced by the prosecution to prove that the accused/appellant had caused the death of the deceased is indisputable. However, from the facts and circumstances which are in evidence, it is very clear that the accused/appellant had no intention to kill the victim/deceased. Elaborating this submission, the learned Amicus Curiae submits that the deceased was the younger brother of the accused's father and they were in good relationship, and in fact, on that day when the incident took place they were all along eating and drinking together celebrating Holi. Learned counsel also submits that the wife of the deceased in her statement given before the Court had stated that there was no quarrel between them and on the day when the incident took place both of them were drunk. Thereafter, the learned counsel also referred to the post-mortem report and submitted that there were no external injuries which could have caused death of the deceased. The learned counsel also submits that as per the statements of the witnesses, the accused only kicked and gave fist blows on the deceased, if he had the intention or pre-meditation to kill the victim then he would have used some weapons. In conclusion the learned Amicus Curiae submits that the offence committed by the accused will come under exception (IV) of section 300 of the IPC and the punishment that may be attracted would be the one given under the second part of Section 304 IPC. 6. The learned Additional Public Prosecutor Mr. T.K. Misra submits that PW-1 is the wife of the deceased and she confirmed in her statement that the accused is her nephew and the victim was her husband and, she saw when he was assaulted by the accused with kicks and fist blows. 6. The learned Additional Public Prosecutor Mr. T.K. Misra submits that PW-1 is the wife of the deceased and she confirmed in her statement that the accused is her nephew and the victim was her husband and, she saw when he was assaulted by the accused with kicks and fist blows. She also stated that both of them went to market to purchase meat together but came back drunk therefore, there is no reason to doubt that death of the victim was caused by the accused/appellant. 7. Pw-1 is the wife of the deceased and aunty of the accused/appellant. She stated in her evidence that both the accused and the victim were together on the day the incident took place and that they had gone to the market together to by meat. She also stated that on their returned from the market her husband was drunk and he was in their room and while he was still there the accused/appellant came and dragged him out and assaulted him by kicking him and with fist blows, and all these had happen in front of her. She however stated that there was no quarrel between her husband and the accused prior to the day of the occurrence. The witness also stated that after the assault she took her husband to hospital with the help of her villagers but when they reached he was declared death. The statement of this witness was also recorded under Section 164 Cr.P.C before the Judicial Magistrate and the same is confirmed by the Magistrate concerned. The statements of the witness under Section 164 Cr.P.C and her statement given during the trial are substantially the same. Her statement recorded under Section 164 Cr.P.C was exhibited as exhibit-7 and her thump impression was exhibited as exhibit-7 (I). The fact that the statement of the witness was recorded was testified by the Addl. Chief Judicial Magistrate, Jorhat who recorded the same as PW-12. PW-2 though did not say that he saw the incident but the evidence shows that he was present when the inquest was conducted and he was a witness. P.W-3 from his statement appears that he is one of the witnesses when the inquest over the death body of the deceased was conducted. However, it appears that he was not an eye witness to the incident. P.W-3 from his statement appears that he is one of the witnesses when the inquest over the death body of the deceased was conducted. However, it appears that he was not an eye witness to the incident. PW-4 and PW-5 are husband and wife, both of them gave almost the same evidence. They both said that when the incident happened, they were present in their house and saw the accused/appellant and the victim having altercation and thereafter the accused assaulting the deceased with fist blows. They also stated that both of them were under the influence of liquor. Both the witness further stated that due to the fist blow of the accused, the deceased fell down and he was kicked by the accused. It is also stated by both of them that the PW-4 tried to stop the assault but could not succeed. The PW-5 stated that the victim used abusive language towards the accused. The statement of the PW-4 was also recorded by the Additional CJM, Jorhat during the investigation and in that also be stated that the deceased was his maternal uncle and the accused is nephew of the victim deceased. He also stated that their houses are near to each other. He further stated that both of them were drunk and a quarrel took place between them and in the process the accused kick the victim and as a result the victim died. PW-6 is one of the brothers of the deceased. The witness stated that when he arrived at the house of his deceased brother, he had seen him in sitting position and the accused had already left the place of occurrence at that time. He also stated that the deceased had consumed alcohol and he was quarrel-some person and behaves badly whenever he his drunk. PW-8 is also one of the brothers of the deceased victim and father of the accused. He stated in his evidence that both the accused and the deceased went to the market together on the day the incident took place and both of them had consumed alcohol when they came to his house and killed one goat. He also stated that he did not see the accused assaulting the victim deceased. He was declared hostile by the prosecution. He also stated that he did not see the accused assaulting the victim deceased. He was declared hostile by the prosecution. In his cross-examination after being declared hostile, he however, admitted that he stated before the police that when he intervened during the quarrel the accused gave him fist blow and torn his shirt. 8. The I/O who was examined as PW-10 only strengthened the case of the prosecution by exhibiting all the relevant documents. The evidence of PW-9, who is none other than the medical officer who conducted the post-mortem over the death body of the deceased also strengthened and confirmed the case of the prosecution. The doctor stated that the apex of the heart was found lacerated in the anterior aspect and this had caused cardiac temponade which ultimately caused the death of the deceased. The doctor also stated that the injuries were caused by blunt force impact. These testimony of the doctor proved the case of the prosecution that the victim was assaulted by the accused with fist blows and by kicking. 9. XXX XXX XXX 10. Considering the evidence available on record especially of the PW Nos. 1, 4, 5, 8, 9 and 10, we are of the view that the death of the deceased was caused by assault committed by the accused but the same was unintended and it had happened due to the spur of the moment triggered by uncontrolled drunkenness. For an offence to be punishable under Section 302 of IPC a person who commits the offence must have had the intention and there should have been pre-meditation. In the facts and circumstances of the case supported by evidence, we find none of these, therefore, we are of the view that the offence committed by the accused/appellant will come under exception (IV) of section 300 of IPC and the punishment that would be attracted for the offence would be under Part-II of Section 304 of IPC. Accordingly, the conviction and the sentence are modified. The accused/appellant is sentenced to rigorous imprisonment for 10 (ten) years with a fine of Rs. 5,000/- and in case of default in payment of the fine, to undergo rigorous imprisonment for another period of 6 (six) months. 11. Accordingly, the conviction and the sentence are modified. The accused/appellant is sentenced to rigorous imprisonment for 10 (ten) years with a fine of Rs. 5,000/- and in case of default in payment of the fine, to undergo rigorous imprisonment for another period of 6 (six) months. 11. We have seen in the impugned judgment that the State Legal Services Authority was directed to pay the victims compensation under Section 357(A) Cr.P.C. If it has not been paid the Legal Services Authority shall pay the same at the earliest. 12. The case is disposed of with the modifications as stated above. Before we part with the judgment, we record our appreciation of the learned Amicus Curiae for the assistance rendered by him and we direct the High Court Legal Services Committee to give his legal fees i.e. a sum of Rs. 7,500/- on production of a copy of this order. Send a copy of this judgment & order to the Superintendent of, Central Jail, Jorhat for his information and information of the appellant. Send back the LCR.