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2019 DIGILAW 1306 (GAU)

Biren Mura v. State of Assam

2019-11-29

M.R.PATHAK, NELSON SAILO

body2019
JUDGMENT : Nelson Sailo, J. Heard Ms. P.B. Bordoloi, the learned Amicus Curiae for the appellant and Mr. N.K. Kalita, the learned Additional Public Prosecutor for the State of Assam. 2. This is an appeal from jail, filed by the appellant against the Judgment dated 30.07.2015 passed by the learned Additional Sessions Judge, Dibrugarh in Sessions Case No.386/2013, convicting him under Section 302 of the Indian Penal Code (IPC) and sentencing him to undergo rigorous imprisonment for life and to pay fine of Rs.10,000/-. In default of the fine, the appellant is further directed to undergo a simple imprisonment for 6 (six) months. 3. The case of the prosecution in brief is that on 24.09.2013, one Shri Joysingh Mura lodged an FIR before the Officer-In-Charge of Borbam Police Out-post stating that on the same day, at about 5.00 a.m., the appellant came to his house and informed him that he found his wife Smti. Somari Mura lying dead. 4. On getting the information, the complainant, who is also the cousin brother of the deceased, proceeded to the appellant's house and found Smti. Somari Mura smeared with blood and lying dead in the house. Suspecting the appellant to be responsible, he lodged the FIR. Against the FIR, the Officer-In-Charge of Borbam police outpost after making GD entry No.387, forwarded the case to the Officer-In-Charge, Tingkhong Police Station for registering a case. 5. As a result, Tingkhong P.S. Case No. 352/2013 under Section 302 IPC was registered and investigation conducted on the complaint. On completing the investigation, charge-sheet was submitted before the Court below. Since the case is exclusively triable by the Court of Sessions, the same was committed to the Sessions Court whereafter, a formal charge under Section 302 IPC was framed by the Sessions Court. The appellant pleaded that he was not guilty of the charge and claimed for trial. As such, trial against the appellant commenced. 6. During trial, the prosecution examined 9(nine) witnesses to prove the case against the appellant while, the appellant did not adduce or examine any defence witnesses. After the examination of the prosecution's evidence was over, the appellant was examined under Section 313 of the Code of the Criminal Procedure (Cr.P.C) to enable him explain the evidence led against him. 7. 6. During trial, the prosecution examined 9(nine) witnesses to prove the case against the appellant while, the appellant did not adduce or examine any defence witnesses. After the examination of the prosecution's evidence was over, the appellant was examined under Section 313 of the Code of the Criminal Procedure (Cr.P.C) to enable him explain the evidence led against him. 7. Thereafter, on conclusion of the trial, the learned Trial Court came to a finding that the prosecution was able to prove the charge under Section 302 of the IPC against the appellant beyond reasonable doubt and therefore, convicted him under the aforesaid section and sentenced him to suffer rigorous imprisonment for life with a default clause as already mentioned herein above. 8. Ms. P.B. Bordoloi, the learned Amicus Curiae at the outset submits that although as many as 9 (nine) witnesses were examined by the prosecution, there were no eye-witnesses. Conviction of the appellant was therefore solely on the basis of circumstantial evidence. She submits that 4(four) witnesses were examined under Section 164 of the Cr.P.C. but since they were not eye-witnesses to the crime, their evidence could not have been accounted for convicting the appellant. In this connection, the learned Amicus Curiae also refers to the deposition of PW-1, PW-2, PW-3 and PW-9 and submits that their versions are only based on hear-say. She submits that PW-1 deposed that he found the deceased lying dead in the house of the appellant while PW-2 deposed that he saw the deceased lying on the ground near Kukura Goral. Further, PW-6 deposed that she found the dead body of the deceased lying in the varandah of the appellant and therefore, there are major discrepancies in the evidence of the prosecution. Since no chain is formed in the evidence of the prosecution to establish that it was the appellant who committed the crime, the impugned judgment of the learned Trial Court cannot be sustained and the same should be set aside and the appellant, acquitted from the charge. 9. Mr. N.K. Kalita, the learned Additional Public Prosecutor appearing for the State submits that the deceased and the appellant did not have any issue between them. They lived alone in the house as tenants of the complainant. From the evidence of prosecution witness Nos. 9. Mr. N.K. Kalita, the learned Additional Public Prosecutor appearing for the State submits that the deceased and the appellant did not have any issue between them. They lived alone in the house as tenants of the complainant. From the evidence of prosecution witness Nos. 2, 3, 4 and 5, the appellant and his wife used to quarrel often and therefore, it was none other than, the appellant himself who killed his wife. He submits that the evidence of the prosecution witness alongwith the post-mortem examination report clearly establishes the fact that it was the appellant who killed his wife. The impugned Judgment of the learned Trial Court convicting and sentencing the appellant should therefore be upheld. 10. We have heard the submissions advanced by the learned counsels for the rival parties and we have also perused the materials available on record including, the Lower Court record that was requisitioned. 11. The materials on record reveals that the deceased was married to the appellant and she was a dumb lady. They had no issues between them and they lived alone in their rented house. From the evidence of PW-6, it can be seen that on the date of the incident at around 10.00 p.m., she heard the appellant and the deceased quarrel and that after sometime, their quarrelling stopped. The next morning, the appellant confessed before her and her husband (PW-2) that he killed his wife. She saw the dead body of the deceased lying in the varandah of the appellant with grievous injury on her head. The husband of PW-6 who was examined as PW-2 deposed that on the night of the incident, he heard hue and cry in the house of the appellant and the appellant was under the influence of alcohol. While coming out of his house to attend nature's call, he saw the wife of the appellant lying on the ground with cut injury on her head. In his cross-examination, he reiterated what he deposed in his examination-in-chief. 12. Pw-1 in his examination-in-chief deposed that the day after the incident, at around 5:00 a.m., the appellant informed him that his wife died suddenly. On reaching the house alongwith PW-4 viz; Sri Joysingh Mura, who is the elder brother of the deceased, they found, the wife of the appellant dead. They also saw that she had an injury on her head. 13. On reaching the house alongwith PW-4 viz; Sri Joysingh Mura, who is the elder brother of the deceased, they found, the wife of the appellant dead. They also saw that she had an injury on her head. 13. Pw-4 in his examination-in-chief deposed that PW-1 informed him about the dead body of the appellant's wife being found near Khokura Goral. On reaching the place, he found the dead body just near the house of the appellant with bloodstain over the head of the dead body. He also deposed that the appellant was of a dubious character and he often picked up quarrel with wife and the people of the locality used to intervene to settle their dispute. 14. Pw-7 who conducted the post-mortem examination on the dead body of the deceased in his examination-in-chief deposed that he found one incised looking lacerated wound of size 5 x 1.5 cm x bone deep present over the left side of forehead obliquely placed upper and being 5 cm lateral to the mid line and lower end 3 cm from lateral angle of left eye. He also found abrasion 2 cm x 1 cm present over right side of forehead 9 cm from mid line and 4 cm above lateral angle of right eye. There was contution of size 6 x 2 cm present over left maxilla and abrasion 3 x 2 cm over tip of right shoulder. In his opinion, death was due to coma resulting from head injury. All the injuries were ante-mortem and caused by blunt force impact and homicidal in nature. The approximate time since death was 18 to 24 hours. 15. It may be noticed that the post-mortem examination was done at 4.30 p.m. on 24.09.2013 and the dead body of the deceased was received for post-mortem examination at 3.15 p.m. The inquest report of the deceased also reveals that bleeding was found on the head of the deceased. 16. From the evidence led by the prosecution witnesses, it can be seen that there is corroboration in their statements more particularly between PW-2 and PW-6 and also between PW-1 and PW-4. The depositions they made in their examination-in-chief were neither shaken nor falsified during their cross examination. The prosecution's evidence further reveals that there was a quarrel between the appellant and the deceased on the fateful night of the incident. The depositions they made in their examination-in-chief were neither shaken nor falsified during their cross examination. The prosecution's evidence further reveals that there was a quarrel between the appellant and the deceased on the fateful night of the incident. The post-mortem examination report also reveals that the injury found on the head of the deceased was fatal and it was the main cause of the death. It is thus clear from the evidence that it was the appellant who is responsible for the death of the deceased by committing the crime. 17. However, upon appreciating the evidence in its entirety, we are of the considered opinion that ingredients to constitute a case under Section 302 of the IPC is not discernible as the evidence reveals that there was a quarrel between the appellant and the deceased on the night of the incident. As such, it cannot be safely concluded that the appellant struck the deceased with the intention of causing death. Therefore, in our considered view, the case will fall under the provision of Section 304 Part-II of the IPC. 18. In the result, while upholding the conviction of the appellant the same is altered to one under Section 304 Part-II of the IPC. On such conviction, the appellant is sentenced to a rigorous imprisonment of 10 years. Besides this modification, the other terms and conditions as imposed by the learned Trial Court shall remain the same. 19. In appreciation of the valuable assistance rendered by Ms. P.B. Bordoloi, the learned Amicus Curiae, the Assam State Legal Services Authority shall pay her fees as per the Schedule made in this regard on the production of this order. 20. With the above observations and directions, this criminal appeal stands disposed of. Office to send back the lower court records immediately.