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2019 DIGILAW 762 (GAU)

Dugdugi Kalita v. State of Assam

2019-06-18

RUMI KUMARI PHUKAN

body2019
JUDGMENT : Rumi Kumari Phukan, J. Heard Mr. M. Dutta, learned Amicus Curiae for the appellant and Mr. D. Das, learned Additional Public Prosecutor for the State respondent. None appears for respondent No.2. 2. The accused/appellant is a niece of the deceased Mohan Das and on 03.04.2014, Mohan Das came to the house of the accused for dinner and at about 7.00 PM, a quarrel took place between the deceased and the accused and the accused assaulted Mohan Das in her house with a branch of tree and a 'dao' as a result of which he died in the house of the accused. The wife of the deceased, Lilimai Das lodged an FIR on 04.04.2014 alleging that the accused persons, i.e., the present accused/appellant and one Smti. Babita Das (owner of the rented premises) killed her husband in a pre-planned manner with the help of other persons. FIR was registered as Morigaon P.S. Case No.138/2014, under Section 302 IPC and on surrender accused was arrested immediately. At the conclusion of the trial, police submitted charge sheet under Section 302 IPC against the accused persons Dugdugi Kalita and Pradip Kalita and Babita Das was not sent up for trial. As the case was triable Sessions triable, the same was committed to the Court of Sessions for favour of trial. 3. The accused faced the trial and denied the charge under Section 302/34 IPC. As none was there to defend the case of the accused person, so the State defence counsel was appointed to conduct the case, by the learned trial court. 4. To substantiate the charge, prosecution side examined nine witnesses including the Medical Officer and Investigating Officer and defence examined none. At the conclusion of the trial, learned trial court held the accused Dugdugi Kalita guilty under Section 304 (part-II) of the IPC holding that such an assault was made by her on grave and sudden provocation and sentenced her to R.I. for 7 (seven) years and a fine of Rs.1,000/-, in default R.I. for three (3) months and other accused Pradip Kalita was acquitted from the case as the charge against him is not proved beyond all reasonable doubt by its order dated 02.02.2015. Amicus Curiae was appointed to assist the Court. 5. Amicus Curiae was appointed to assist the Court. 5. The accused Smt. Dugdugi Kalita who faced the trial from the date of her arrest on 04.04.2014, has preferred the present appeal against the impugned judgment and order, from inside the jail. 6. I have heard the submission of the learned Amicus Curiae and also the learned Additional Public Prosecutor. 7. The learned Amicus Curiae has drawn the attention of the Court to the evidence on record including the medical evidence as well as the statement of the accused recorded under Section 313 Cr.P.C. and has submitted that the accused did not have any intention to kill the deceased and because of indecent behavior and illegal proposal made by the accused to marry her, the accused at the fit of anger, dealt a blow upon the deceased with a branch of tree and there is no evidence to show that she inflicted 'dao' injury upon the deceased with a view to kill the deceased. It has also been pointed out that the only eye witness PW2, has also categorically stated that the accused assaulted Mohan with a branch of palm tree on his head after a quarrel between the parties and that being so, the punishment upon the accused is on higher side and the accused has already completed more than five years behind the bar, so her case deserves consideration. 8. The learned Additional Public Prosecutor has also submitted that the postmortem report does not reflect any deep cut injury on the body of the deceased except lacerated cut injury at forehead, size about 3" X 3" with facture on the frontal bone and having regard to the facts and circumstances of the case, it is discernable that the incident happened all of a sudden without any pre-mediation to kill the deceased. 9. On appraisal of the evidence on record it is to be noted that save and except PW2 there is no eye witness to the occurrence and all are circumstantial evidence. The said PW2-Safa Kalita, in her evidence has stated that on the day of occurrence, at about 7.30 PM, she went to the house of the accused Dugdugi Kalita on her invitation to take dinner and after sometime the deceased Mohan Das also arrived there and at that time accused Pradip Kalita was not in the house. The said PW2-Safa Kalita, in her evidence has stated that on the day of occurrence, at about 7.30 PM, she went to the house of the accused Dugdugi Kalita on her invitation to take dinner and after sometime the deceased Mohan Das also arrived there and at that time accused Pradip Kalita was not in the house. But before taking meal, a quarrel took place between the accused and the deceased and she did not know the reason of quarrel. Suddenly, the accused Dugdugi assaulted Mohan with a branch of tree on his head and she came out to inform about the incident to the owner of the house and in the meantime, Pradip Kalita also arrived at the place of occurrence after the incident and on her return, Mohan was found dead. After a few while, police also arrived there and seized one 'dao' and a branch of palm tree vide M. Ext.1 and 2. 10. The evidence of PW6-Rana Pratap Hira (who is the house owner of the accused) is crucial who has stated that on the day of occurrence accused came to his house at about 7.30 PM and reported him that as the deceased Mohan Das wanted to marry her so she had assaulted him. He then informed 108 ambulance to take Mohan to hospital but in the meantime, Mohan died. Police seized the vide M. Ext.1 and 2 from the house of the accused. He saw mark of injury on the forehead of the deceased. 11. Conjoint reading of the evidence of PW2 and PW6 would go to show that the accused assaulted Mohan Das in her house for his indecent proposal and or otherwise there appears to be no any reason whatsoever on the part of the accused to kill the deceased who is her own uncle. It is to be noted that the accused offered dinner to the deceased but taking advantage of absence of her husband at the relevant time, the deceased made such marriage proposal to his own niece who is a married lady which is beyond expectation of the accused. In the given circumstances it can be inferred that the accused, out of provocation, had dealt the blow to the deceased but not in a pre-planned manner so as to constitute mens-rea to kill the accused. 12. In the given circumstances it can be inferred that the accused, out of provocation, had dealt the blow to the deceased but not in a pre-planned manner so as to constitute mens-rea to kill the accused. 12. The accused in her statement under Section 313 Cr.P.C. has fairy admitted about the assault made by her and the reason put forwarded by her is same as stated by PW6 that the accused tried to commit sexual intercourse after kissing her at her cheek and he also offered to marry her and getting angry on the conduct of the deceased she assaulted Mohan by a branch a tree and a 'dao', but she did not intend to kill him. 13. The Medical Officer, PW4-Dr. A. K. Nath on examination of the dead body of the deceased he found lacerated cut injury on the forehead of the deceased size 3" X 3" with facture on the frontal bone. No findings about the deep cut injury to indicate about the use of the 'dao' by the accused. 14. Remaining witnesses are hearsay witnesses. The PW1-Lilimai Das is the informant who has stated that on the invitation for dinner by the accused Dugdugi Kalita who is her niece, her husband went to their house but later on, she came to know that her husband had been assaulted by the accused and her husband died on the spot. She filed the ejahar as heard from others. So far as the other witnesses PW3-Kalia Medhi, PW5-Lumeswar Hira, PW7-Moni Sarkar, PW8-Bina Das all are reported witnesses and they appeared in the house of the accused after hearing the matter and found the dead body of Mohan lying on a bed inside the house of the accused person with an injury on his forehead. PW3 signed the seizure list prepared by police at the time of seizure of the 'dao' and the wooden stick from the place of occurrence. They had no personal knowledge whatsoever about the occurrence. Lastly, PW9 is the Investigating Officer whose evidence is formal in nature. He, however, stated that accused Dugdugi Kalita surrendered before the court after the incident and thereafter she was arrested. 15. They had no personal knowledge whatsoever about the occurrence. Lastly, PW9 is the Investigating Officer whose evidence is formal in nature. He, however, stated that accused Dugdugi Kalita surrendered before the court after the incident and thereafter she was arrested. 15. From the totality of the evidence on record, coupled with the admission of the accused in her statement under Section 313 Cr.P.C. it can be found and hold that the accused never intended to kill the deceased who is her own uncle and in fact, she invited the deceased and PW2 for dinner in her house and while preparing for dinner, due to sudden indecent conduct of the accused who tried to have a sexual intercourse with her, she made an attack upon him with the weapon may be which was available nearby the place of occurrence. She being a married woman cannot tolerate such indecent proposal from her uncle and attacked him as such. The learned trial court has rightly convicted the accused under Section 304 (part-II) IPC which call for no interference. However, considering the nature of offence and the given background while maintaining the conviction the accused is sentenced to the period already undergone by her and the sentence of fine is hereby set aside. 16. Appeal is partly allowed as indicated above. Issue release order. 17. Appreciating the assistance rendered by the Amicus Curiae, Mr. M. Dutta, Guwahati Legal Services Authority is hereby directed to provide Rs.7,000/- as remuneration to him. 18. Return the LCR with copy of judgment.