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2019 DIGILAW 885 (GAU)

Rebati Bharali v. State Of Assam

2019-08-08

ACHINTYA MALLA BUJOR BARUA, SONGKHUPCHUNG SERTO

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JUDGMENT : Songkhupchung Serto, J. Heard Ms. N. Bharali, learned Amicus Curiae for the appellant and also heard Ms. S. Jahan, learned Additional Public Prosecutor appearing for the State of Assam. 2. This is a criminal appeal directed against the judgment & order dated 28.04.2017, passed by the learned Sessions Judge, Morigaon in Sessions Case No. 83/2016, wherein and whereby, the accused/appellant was held guilty of having murdered one Smti. Chitra Bharali, his own wife, therefore, held guilty of having committed the offence punishable under section 302 of IPC and sentenced to rigorous imprisonment for life with a fine of Rs. 30,000/- and in default, to suffer 1 more year of simple imprisonment. 3. On 26.01.2016 one Sri. Sadhan Mondal, the uncle of the deceased lodged a complaint/ejahar before the Officer-in-charge of Mayong Police Station stating that at about 11:30 A.M. of the same day the accused/appellant had killed his own wife, Chitra Bharali who happen to be his niece, by cutting her neck with a dao. On receipt of the ejahar, the Officer-in-charge of Mayong Police Station registered Mayong P.S Case No. 13/2016, under section 302 of IPC and directed Sri. Rebat Chnadra Baruah, S.I of the same Police Station to investigate the case. Accordingly, the said S.I investigated the case but could not complete the same. Therefore, one Md Akbar Ali who was the Second Officer of Morigaon Police Station continued with the investigation and after it was completed submitted the charge sheet. On receipt of the charge sheet, the learned Sessions Judge, Morigaon heard the parties and framed the charge under section 302 of IPC against the accused/appellant. Thereafter, the prosecution produced and examined 8 witnesses including the two Investigation Officers and the Medical Officer who conducted the post-mortem over the dead body of the deceased late Chitra Bharali. The accused/appellant, thereafter, was examined under section 313 of Cr.PC but he did not produce and examine any witness in defence. After all these were completed, the learned Sessions Judge heard the prosecution and the accused/appellant through his learned counsel. The accused/appellant, thereafter, was examined under section 313 of Cr.PC but he did not produce and examine any witness in defence. After all these were completed, the learned Sessions Judge heard the prosecution and the accused/appellant through his learned counsel. The learned Sessions Judge, after considering the evidence available on record and the submissions of the learned P.P. and the defence counsel came to the finding that the accused/appellant had committed the offence punishable under section 302 of IPC and, accordingly, convicted him and sentenced him to rigorous imprisonment for life with a fine of Rs.30,000/- and in default, to suffer simple imprisonment for 1 year. Being aggrieved, the accused/appellant has come before this Court through this jail appeal. 4. Ms. N. Bharali, learned Amicus curiae submitted that as per the evidence of the witnesses the offence committed by the accused/appellant would come under Exception 4 of section 300 of IPC, therefore, the punishment that would be attracted would be either under the 1st part or 2nd part of section 304 of IPC but not under section 302 of IPC. The learned counsel in support of her contention submitted that the accused/appellant gave only one blow with a dao on the neck of his wife in a fit of anger and at the spur of the moment and, unfortunately, that had happened to be fatal as the edge of the dao was very sharp. The learned counsel further submitted that there is no evidence to show that there was premeditation or pre-planning on the part of the accused/appellant who caused the death of his wife. In support of her submission, the learned Amicus curiae cited the judgment of the Hon'ble Supreme Court of India in the case of Mahesh -versus- State of Madhya Pradesh, (1996) AIR SC 3513. The learned counsel, after referring to the judgment, further submitted that the circumstances in these two cases are quite similar because in the case cited also the accused/appellant had given only a blow with a pharsa on the head of the victim which caused his death and there was no evidence that any other injury or injuries was caused by the accused/appellant therein, therefore, he was sentenced under section 304 (Part-I) of IPC only. As such, the accused/appellant herein may also be given the same sentence. 5. Ms. As such, the accused/appellant herein may also be given the same sentence. 5. Ms. S. Jahan, learned Additional P.P. submitted that in view of the facts and circumstances of the case which are supported by the evidence in record she is in agreement with the submission of the learned Amicus curiae. The learned Addl. P.P also submitted that in regard to cruelty as mentioned in the Exception 4 to section 300 it would depend on the manner in which an accused dealt with a victim after the fatal blow had been delivered. The learned Addl. P.P referred to the judgment of the Hon'ble Supreme Court passed in the case of Ghapoo Yadav & Others -versus- State of Madhya Pradesh, (2003) 3 SCC 528 . The last paragraph of the judgment referred to by the learned counsel is reproduced here below; "In the case at hand, out of the seven injuries, only injury No.2 was held to be of grievous nature, which was sufficient in the ordinary course of nature to cause death of the deceased. The infliction of the injuries, and their nature proves the intention of the accused appellants, but causing of such injuries cannot be termed to be either in a cruel or unusual manner for not availing the benefit of Exception 4 to Section 300 IPC. After the injuries were inflicted the injured has fallen down, but there is no material to show that thereafter any injury was inflicted when he was in helpless condition. The assaults were made at random. Even the previous altercations were verbal and not physicals. It is not the case of the prosecution that the accused appellants had come prepared and armed for attacking the deceased. The previous disputes over land do not appear to have assumed characteristics of physical combat. This goes to show that in the heat of passion upon a sudden quarrel followed by a fight the accused persons had caused injuries on the deceased, but had not acted in cruel or unusual manner. That being so, Exception 4 to Section 300 IPC is clearly applicable. The fact situation bears great similarity to those in Sukhbir Singh v. State of Haryana, (2002) 3 SCC 327 . Appellants are to be convicted under Section 304 Part I, IPC and custodial sentence of 10 years and fine as was imposed by the Trial Court would meet the ends of justice. The fact situation bears great similarity to those in Sukhbir Singh v. State of Haryana, (2002) 3 SCC 327 . Appellants are to be convicted under Section 304 Part I, IPC and custodial sentence of 10 years and fine as was imposed by the Trial Court would meet the ends of justice. The appeal is allowed to the extent indicated above". 6. The most important witness among the 8 witnesses is PW No. 6 who stated that following a quarrel between the accused/appellant and his wife (deceased), the deceased rushed into her room where she was sleeping with her new born baby, crying for help to save her from her husband. At that very moment, the accused/appellant followed the deceased and entered the room with a dao in his hand and, on seeing him she got frightened, therefore, she got out of her bed with her baby and went out from the room shouting for help. After sometime, people in the neighbourhood came to their house on hearing her shouting, but when they entered into her room they saw the victim lying dead in a pool of blood. The accused/appellant then tried to escape but he was caught by the villagers. The witness, in her cross- examination however, admitted that she did not see the accused/appellant while cutting the neck of his wife. 7. The next important witness is PW No.2, who is none other than the brother of the accused/appellant. The witness stated that on hearing the news about the incident he came back to his house and his wife i.e. PW No.6 informed him that the accused/appellant with a dao in his hand had chased his wife (deceased) who rushed into their room for help. He also stated that he saw the dead body of the deceased lying on the floor of their house and also saw the accused/appellant in the courtyard with a dao in his hand. He further stated that the Police reached the spot after sometime and seized the dao in his presence. 8. The third witness whose evidence is also important is the PW No.1, who is none other than the uncle of the deceased who lodged the ejahar. He further stated that the Police reached the spot after sometime and seized the dao in his presence. 8. The third witness whose evidence is also important is the PW No.1, who is none other than the uncle of the deceased who lodged the ejahar. The witness stated that after receiving the information that the accused/appellant had assaulted his wife he rushed to the place of occurrence and found the dead body of his niece in a pool of blood lying on the floor of the house of Sukumar (PW No. 2), the brother of the accused. He also stated that he saw the cut injury on the neck of the deceased and later on he lodged the ejahar. 9. Pw No. 7 is the first Investigation Officer who investigated the case at the initial stage. The witness stated that after G.D entry was made he went to the place of occurrence and conducted the inquest over the dead body. He also stated that when he reached the place of occurrence he found the accused still carrying the dao in his hand by which he committed the murder of his wife, therefore, he immediately seized the same from the hand of the accused/appellant. He further stated that he then detained the accused/appellant and brought him to the Police Station. Furthermore, the I.O stated that he saw the dead body lying on the floor of her brother-in-law and he also saw the deep cut injury on the neck of the deceased caused with a sharp weapon. The I.O then stated also that he took the dead body for post-mortem. 10. The next witness who corroborated the evidence given by the other witnesses is the Medical Officer i.e. PW No.5. The Doctor stated that he found a complete cut injury on the neck with spinal cord from the left side. He also stated that the head of the dead body was almost chopped of as the cut injury was very deep. The Doctor further testified that in his opinion the cause of death was due to cardio respiratory failure as a result of hemorrhage caused by the complete cut injury on the neck. 11. From the evidence of the witnesses, we have no hesitation in concluding that the accused/appellant had caused the death of his own wife by cutting her neck with a dao. 11. From the evidence of the witnesses, we have no hesitation in concluding that the accused/appellant had caused the death of his own wife by cutting her neck with a dao. It is true that no one saw when the actual act was committed but from the evidence of PW No.6 who stated that she saw the accused/appellant with a dao in his hand, chasing his wife (deceased) into her room where she was sleeping with her new born baby, there can be no doubt that it is the accused/appellant only who committed the ghastly act of killing the deceased. However, the question is under the facts and circumstances of the case proved by the above stated evidences, whether the offence committed by the accused/appellant would attract the punishment under section 302 of IPC or the punishment provided under the 1st part or the 2nd part of section 304 IPC as submitted by the learned Amicus curiae. From the evidences given by the witnesses particularly, PW No.6 what can be gathered is that there was a quarrel prior to the commission of the crime, between the accused and his wife (deceased), and the same was followed by the act of the accused/appellant i.e. cutting of the neck of his wife in quick succession of events. The medical finding shows no other injury or injuries on the body of the deceased/victim and there is no sign of the accused/appellant of having raised the dao twice over the neck of his wife. It appears from these that the act of cutting of the neck of the deceased was with one blow only. From all these one can only conclude that there was no premeditation or pre-planning on the part of the accused/appellant to kill his wife. Rather, it appears to us that the act was committed in a fit of anger and at the spur of the moment. Therefore, we agree with the submission of the learned Amicus curiae that the act of the accused/appellant in killing his own wife would not attract the punishment as provided under section 302 of IPC but would attract at best the punishment provided under Part-I of section 304 of IPC. Therefore, we agree with the submission of the learned Amicus curiae that the act of the accused/appellant in killing his own wife would not attract the punishment as provided under section 302 of IPC but would attract at best the punishment provided under Part-I of section 304 of IPC. In view of the above, we hereby held that the accused/appellant is guilty of having committed the offence punishable under the first Part of section 304 of IPC and accordingly, we sentence him to imprisonment for a period of 8(eight) years and a fine of Rs. 20,000/- (Rupees twenty thousand) only and in default thereof to a further period of imprisonment for 3(three) months. The appeal is allowed to the extent stated above. Return the LCR. Before we part with the judgment we record our appreciation of the learned Amicus curiae for the assistance she had rendered. The High Court Legal Services Committee shall pay her legal fee i.e. Rs. 7,500/-. Send a copy of the judgment & order to the Superintendent of Jail, Morigaon for information and necessary compliance.