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2020 DIGILAW 107 (GAU)

Dhiren Bhumij v. State Of Assam

2020-01-31

MIR ALFAZ ALI, S.HUKATO SWU

body2020
JUDGMENT Mir Alfaz Ali, J. - Heard Mr. Atal Tiwari, learned amicus curiae for the appellant and Mr. B. J. Dutta, learned Addl. Public Prosecutor for the State. 2. This appeal is directed against the judgment and order passed by the learned Sessions Judge, Karbi Anglong, Dhipu in Sessions Case No. 66/2012, whereby the learned Sessions Judge convicted the appellant u/s 302 IPC and sentenced him to rigorous imprisonment for life and fine of Rs. 2,000/-, in default, to undergo simple imprisonment for another 6(six) months. 3. As per prosecution case, on 10-03-2012, the appellant assaulted his wife causing her death. On the next morning neighbouring people came to know about the occurrence and the FIR (Ext.-1) was lodged by the Gaonburah (village head). On the basis of the said FIR, police registered Bokajan PS Case No. 29/2012 u/s 302 IPC. During investigation, police recorded the statement of the witnesses u/s 161 CrPC and seized some incriminating articles. The inquest report was prepared by learned Executive Magistrate and Dr. Sanjit Kumar Borthakur conducted the post mortem examination on the body of the deceased. 4. The autopsy doctor who conducted the post mortem examination found the following injuries on the body of the deceased -- wxyz "Rigor mortis was present. Right ear was missing. There was big haematoma on right side of the head. On dissection, there was bleeding on the right of the brain, right hemisphere of the brain. Major findings were fracture of left clavicle outer 1/3rd massive bleeding inside abdomen and rupture of spleen." zyxw wxyz In the opinion of the doctor death was due to shock and haemorrhage as a result of the injuries sustained. zyxw 5. On conclusion of the investigation, charge-sheet was laid against the appellant u/s 302 IPC. The offence being triable by the court of Sessions, the case was committed to the court of Sessions and the learned Sessions Judge framed charge against the appellant u/s 302 IPC, to which the appellant pleaded not guilty. 6. In course of trial, prosecution examined 6 (six) witnesses including the doctor. wxyz 5. The first witness examined by the prosecution was the PW-1, Jogeswar Basumatary, who lodged the FIR. He testified that the local village head (PW-2) informed him that Dhiren Bhumij had killed his wife. 6. In course of trial, prosecution examined 6 (six) witnesses including the doctor. wxyz 5. The first witness examined by the prosecution was the PW-1, Jogeswar Basumatary, who lodged the FIR. He testified that the local village head (PW-2) informed him that Dhiren Bhumij had killed his wife. Having come to know about the occurrence from PW-2, at 5 am in the morning, he came to the place of occurrence, being the residence of the appellant and found the wife of the appellant lying in his house with cut injuries on her ear. He further stated that on being asked by him, the accused told that his wife being drunk and made hulla and therefore, he killed her. zyxw 7. Pw-2, Chiraton Gaur stated in his evidence that the accused/appellant came to his house and informed that his wife died. The appellant also requested him (PW-2) to go to the house of PW-1, Gaonburah (village head). Accordingly, he informed the PW-1, whereupon, PW-1 came to the place of occurrence and he also went there. He further stated that on being asked by him, the accused told that he killed his wife, as she consumed liquor and made hulla. During cross-examination of PW-2 it was elicited that the victim used to consume liquor. wxyz 7. PW-3 stated that he came to know about the occurrence from the VDP president Mudhukar Karmakar, who told that a quarrel had taken place in the house of Dhiren Bhumij and as a result of the quarrel, wife of Dhiren Bhumij died. On receiving the information he went to the house of the accused and found that that public had already gathered. On reaching the place of occurrence he could know, that on the previous night quarrel took place between the accused and the victim followed by scuffle, as a result of which, the ear of the victim was cut off. He also stated to have asked the accused about the occurrence and on his query the accused told that the ear was thrown to the backside of the house. zyxw 8. Pw-5 is the investigating officer. According to him, upon receiving the FIR when he arrived at the place of occurrence he found that the body was kept in the house of the accused covered with a blanket. 9. zyxw 8. Pw-5 is the investigating officer. According to him, upon receiving the FIR when he arrived at the place of occurrence he found that the body was kept in the house of the accused covered with a blanket. 9. Pw-6 stated that when he came to the place of occurrence, he found the accused being tied by the villagers. On being asked by him, the accused told that being angry after taking alcohol, he hit his wife on her chest. On the basis of the above evidence, including the extra judicial confession of the appellant, the learned Sessions Judge convicted the appellant u/s 302 IPC and awarded sentence as indicated above. 10. The learned amicus curiae has not seriously contested the prosecution case and the finding of the learned trial court, that the accused/appellant inflicted injury to his wife leading to her death. However, the learned amicus curiae contended, that on the basis of the evidence brought on record conviction of the appellant could not be recorded under section 302 IPC, as the intention to cause death was absent. 11. We have considered the submission made by the learned counsel and also scrutinized the evidence and materials brought on record. 12. On our assessment of the evidence, we find, that the extra-judicial confession relied by the learned trial court, though, the appellant sought to retract during his examination u/s 313 CrPC cannot be brushed aside. However, it is also evident that the victim (wife) used to consume liquor and quarrel and scuffle took place often between the husband and the wife. The medical evidence shows that except chopping of the ear of the victim, there was no other external injury on her body, though there was bleeding inside abdomen and fracture on the left cavicle. The post mortem report is also silent as to the nature of weapon used and the time of death. However, from the nature of injury, it can be said that no dangerous weapon was used by the appellant for causing the injury. 13. The post mortem report is also silent as to the nature of weapon used and the time of death. However, from the nature of injury, it can be said that no dangerous weapon was used by the appellant for causing the injury. 13. Having regard to the facts and circumstances of the case and taking note of the fact that there was quarrel and scuffle between the husband and wife, and in course of such quarrel the injury was inflicted, as well as the nature of injury and the weapon used, we are of the considered opinion that the intention to cause death or any pre-meditation cannot be attributed to the appellant in the present case. Rather the evidence on record clearly suggests, that injury was inflicted at the heat of passion in course of quarrel and no undue advantage was taken by the appellant. The nature of injury also suggests that appellant did not act in a cruel or unusual manner. Therefore, in absence of any pre-meditation or in absence of any intention to cause death and the injury having been inflicted at the heat of passion, in our considered view, conviction of the appellant could not have been recorded u/s 302 IPC, and as such, the conviction and sentence u/s 302 IPC cannot be sustained. Accordingly, we set aside the conviction and sentence of the appellant u/s 302 IPC, instead, we convict him u/s 304 Pt-I of the Indian Penal Code for causing culpable homicide not amounting to murder and sentence him to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 5,000/-. In default of payment of fine, he shall undergo further simple imprisonment for 2 (two) months. The period, which the accused has already undergone in jail shall stand set off. Accordingly, the appeal stands partly allowed. 14. We appreciate the assistance rendered by the learned Amicus Curiae Mr. A. Tiwari. He shall be entitled to professional fees of Rs.7,500/- to be paid by the Legal Service Authority on production of a copy of this judgment. 15. Send back the record.