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2020 DIGILAW 171 (GAU)

Gosai Basumatary v. State Of Assam

2020-02-10

HITESH KUMAR SARMA, SUMAN SHYAM

body2020
JUDGMENT Suman Shyam. J. - The sole appellant Sri Gosai Basumatary has been convicted under section 302 of the Indian Penal Code for causing homicidal death to his mother Ramani Basumatary and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.5000/- and in default, to undergo simple imprisonment for six months. 2. The prosecution case, in brief, is that on 15.09.1990 at about 2.30 p.m. the accused/appellant had hacked his mother to death with an axe in the verandah of their dwelling house. Sri Nanda Basumatary i.e. the brother of the accused had lodged an F.I.R. before the Officer-in-charge, Dokmoka Outpost, on the basis of which, GD Entry No.416 dated 15.09.1990 was made. The F.I.R. was then forwarded to the Officer-in-Charge, Howraghat Police Station. On receipt of the F.I.R., Howraghat P.S. Case No.164/90 was registered under section 302 IPC. Confessional statement of the accused was recorded under section 164 Cr.P.C. The I.O. had also recorded the statement of the witnesses and seized certain items by preparing seizure-lists. Upon completion of investigation, charge-sheet was submitted by the I.O. against the accused. Since the accused had pleaded not guilty and claimed to be tried, the matter was sent up for trial. 3. In order to establish the murder charge brought against the accused, prosecution side had examined nine witnesses including the Magistrate who had recorded the confessional statement of the accused/appellant under section 164 of the Cr.P.C. The accused was examined under section 313 of the Cr.P.C. Although the accused had denied the circumstances put to him, yet, in response to Question No.10, he has admitted to have killed his mother as she used to abuse him with filthy words. The accused/appellant has, however, declined to adduce any evidence in his defence. 4. Since the prosecution case is primarily based on the confessional statement of the accused, we deem it fit to refer to the said statement which is available on record in the form of Ext-6. A perusal of Ext-6 goes to show that the accused had stated that his mother used to frequently abuse him by using filthy languages and she also took away all the jewellery of his wife. The deceased did not even pay any heed to the advice rendered by his father (husband of the deceased) not to use such abusive language against the accused. The deceased did not even pay any heed to the advice rendered by his father (husband of the deceased) not to use such abusive language against the accused. On the day of occurrence, the accused had consumed liquor and as soon as he had reached home, the deceased had shouted 'the son of a cow has reached home'. She has also cursed the accused by saying that he would become a beggar and at that, he became restless and told her that if she did not keep quiet he would beat her. When the deceased challenged the accused and after a long and heated argument, the accused had picked up an axe but the deceased had kept on provoking him. In a mad rush, he had hit her on the neck and she fell dead on the ground. Then he went to the thana and surrendered himself. 5. From the testimony of Smti. Jayashree Daulagopu (PW-8) i.e. the Magistrate who had recorded the confessional statement of the accused, we find that before recording his statement the matter was properly explained to the accused by cautioning him that he was not bound to make the confessional statement and if he did so, it would be used as evidence against him. However, the accused still intended to record the confessional statement. For reflection, the accused was given 24 hours time, during which period, he was remanded to judicial custody with a direction that the accused should not be allowed to make any conversation with the other inmates of the jail. On the next day i.e. upon completion of the reflection period, the accused was once again informed as to the consequences of his confession and told that he was not bound to make a confessional statement and if he did so, the same would be used as a piece of evidence against him. Even thereafter, the accused had intended to record his confessional statement and accordingly, the same was recorded by the PW-8. The PW-8 has also confirmed that Ext-5 is her order dated 18.05.1990 and Ext-6 is the confessional statement of the accused. During her cross-examination, the testimony of the said witness could not be shaken by the defence side. 6. Even thereafter, the accused had intended to record his confessional statement and accordingly, the same was recorded by the PW-8. The PW-8 has also confirmed that Ext-5 is her order dated 18.05.1990 and Ext-6 is the confessional statement of the accused. During her cross-examination, the testimony of the said witness could not be shaken by the defence side. 6. From the evidence of PW-8 we find that the learned Magistrate had duly complied with all the formalities and had also given sufficient scope to the accused for reflection before recording his confessional statement. From the circumstances noticed above, it appears to us that confession made by the accused is voluntary and also truthful. 7. PW-1, Sisindra Basumatary, is the father of the accused and the husband of deceased Ramani Basumatary. From the testimony of PW-1, it transpires that he did not see the accused severing the head of the deceased with an axe but the witness had arrived at the place of occurrence immediately after the incident and saw the accused coming out of the house with an axe in his hand. PW-1 has also stated that the accused had told him that he had killed his mother and would now proceed to the thana. When he reached home, he saw the dead body of his wife with a severed neck. He then raised hue and cry and people from neighbourhood came to the place of occurrence. PW-1 has also stated that he had informed the people gathered around his place that the accused had killed his mother and proceeded to the thana. Thereafter, his other son Nanda went to the thana to lodge F.I.R. Police came to the place of occurrence and held inquest over the dead body. Nothing adverse could be extracted by the defence side during the cross-examination of PW-1. 8. PW-2, Smt. Dabe Basumatary, is one of the two wives of the accused and she has deposed that her mother-in-law was killed by her husband Gosai. PW-2 has stated that at the time of the occurrence she was not present at home but when she came back, she had seen the dead body of her mother-in-law lying in the verandah and her father-in-law had told the people gathered there that the accused Gosai had killed Ramani. 9. PW-2 has stated that at the time of the occurrence she was not present at home but when she came back, she had seen the dead body of her mother-in-law lying in the verandah and her father-in-law had told the people gathered there that the accused Gosai had killed Ramani. 9. PW-3, Narzari Basumatary, is the elder sister of the accused and she has deposed to the effect that she had learnt about the incident from her father. The evidence of this witness is basically hearsay evidence and would not be of much probative value in this case. 10. PW-4, Sushindu Basumatary, is the elder brother of the accused and the informant in this case. He had also not seen the incident nor was he present at the place of occurrence at the time of the incident but the witness has stated that when he reached the place of occurrence, he saw the dead body of his mother which was severed into two pieces. The accused Gosai was not present at the place of occurrence. After that he went to the thana (Police Station) and lodged an ejahar which was Ext-2. PW- 4 has also confirmed his signature in the ejahar as Ext-2(2). 11. PW-5, Smti. Sargu Basumatary, is the other wife of the accused and she has deposed that at the time of the incident, her two minor daughters were at home but she was not at home. She had seen the dead body of Ramani after her return from the field and her children told her that her husband killed Ramani. 12. PW-6, Jadu Ram Malakar, is the I.O. in this case and he has deposed that on the day of the incident i.e. 16.09.1990, he had made GD Entry No.164/90 after receiving the ejahar and forwarded the same to the O/C, Howraghat Police Station. PW-6 has also deposed that the accused had surrendered at the Dokmoka Police Outpost with an axe even before he had visited the place of occurrence and he arrested the accused and seized the axe along with some clothes. PW-6 has also stated that upon reaching the place of occurrence, he had found the dead body which he sent to the Diphu Civil Hospital for post-mortem. He had also examined some witnesses present and recorded their statement. The cross of this witness was declined. 13. PW-9, Dr. PW-6 has also stated that upon reaching the place of occurrence, he had found the dead body which he sent to the Diphu Civil Hospital for post-mortem. He had also examined some witnesses present and recorded their statement. The cross of this witness was declined. 13. PW-9, Dr. Nishit Ranjan Nunisa is the doctor on duty at the Diphu Civil Hospital on 16.09.1990 and he had conducted post-mortem examination on the dead body of the deceased. The doctor (PW-9) has deposed that there was one complete cut injury which had separated the head from the body at the neck. According to the PW-9, the death was due to separation of the head from the body leading to excessive haemorrhage and instant death. 14. Taking note of the bulk of evidence available on record, the learned trial Court had held that the prosecution has succeeded in establishing the charge brought against the accused beyond reasonable doubt and accordingly, convicted the accused under section 302 of the IPC and sentenced to undergo rigorous imprisonment for life. 15. In order to appreciate the ground urged by the appellants counsel, we have carefully examined the materials on record and found that the confessional statement (Ext-6) of the accused, which was recorded by the Magistrate under section 164 Cr.P.C., clearly narrates the circumstances under which the accused had killed his own mother by hacking her with an axe. The fact that the incident took place inside the dwelling house of the deceased and the accused is amply established from the testimonies of PWs-1, 2, 3 and 5. Moreover, PW-1, who is the father of the accused and the husband of the victim, has clearly stated that he had seen the accused coming out of the house with an axe in his hand. It has also come out from the testimony of PW-1 that while coming out of the house, the accused had told the PW-1 that he had killed his mother and would now proceed to the thana. From the evidence of PW-6 it transpires that the accused had in fact gone to the thana with an axe and surrendered before the police. Not only that, it also appears that the accused had surrendered almost immediately after the occurrence as the PW-6 has stated that he had seized the axe from the accused even before he had reached the place of occurrence. Not only that, it also appears that the accused had surrendered almost immediately after the occurrence as the PW-6 has stated that he had seized the axe from the accused even before he had reached the place of occurrence. The version of PW-1 not only supports the narrative contained in the confessional statement (Ext-6) but also finds due corroboration from the testimony of PW-6 in so far as it relates to the conduct of the accused immediately after the occurrence took place. Moreover, during the cross- examination of PW-1, the defence side did not make any attempt to assail the testimony of PW-1 that the accused had confessed to killing his mother by an axe. Therefore, although we find that PW-1 is not an eye-witness to the incident but the said witness appears to have reached home immediately after the occurrence and thereafter, had witnessed the accused come out of the house after killing his mother. 16. From the testimony of PW-9, the inquest report Ext-1 and the post-mortem report Ext-7 it is clear that the deceased had died a homicidal death which was caused by severing her head from the body with a sharp weapon. The I.O. has also confirmed that he had seized the axe with a handle made of split bamboo with blood stains found on it and Ext-5 is the seizure-list. The confessional statement of the accused i.e. Ext-6 has been duly proved by the prosecution side. 17. Having regard to the bulk of evidence available on record, we are of the view that the prosecution has succeeded in establishing the fact that it is none other than the accused who had severed the head of his mother by means of an axe. 18. At this stage, Mr. S. Islam, learned Amicus Curiae appearing for the appellant, has argued that although the accused has made the confessional statement admitting to killing his mother, yet, having regard to the facts and circumstances of the case, it is clear that the accused had acted under provocation from his mother which had continued over a period of time and on the day of occurrence, he had struck his mother having lost his sense of self-control. According to Mr. Islam, there is complete absence of premeditation on the part of the accused in this case and there was no intent to kill the deceased. Under the circumstances, Mr. According to Mr. Islam, there is complete absence of premeditation on the part of the accused in this case and there was no intent to kill the deceased. Under the circumstances, Mr. Islam has submitted that the present is a case coming within the ambit of section 304 Part-II of the IPC. 19. We have considered the submission of the learned Amicus Curiae and minutely studied the evidence adduced by the witnesses including the confessional statement (Ext-6). From the materials on record, more particularly Ext-6, it appears that the deceased mother of the accused used to regularly provoke the accused by using strong and abusive language. From the confessional statement Ext-6, we find that the accused has clearly stated that his deceased mother had not only snatched the jewellery of his wife but had also obliquely suggested her husband i.e. the father of the accused, to marry his daughter-in-law since she is giving good food to him to eat. Even on the day of the occurrence, there was a heated argument between the accused and the deceased and she continued to provoke the accused till a point of time when he had lost his power of self control and assaulted the deceased with an axe. The aforesaid circumstance clearly emerge from the confessional statement of the accused. 20. In this case there is no eye-witness to the incident. It appears that the evidence on record, save and except the accused and the deceased and the two minor children, no other adult member of the family was present in the house. Therefore, it is not possible to find corroboration of the narrative contained in Ext-6 in so far as the provocation handed out by the deceased to the accused is concerned. However, we are conscious of the fact that the accused was living with his parents and family in the same household and immediately after the incident, he had gone and surrendered at the Police Station along with the axe. The accused had also confessed to killing his mother. Therefore, we find no other reason as to why the accused would take such a drastic step of killing his own mother unless there was prolonged provocation from her. It appears that the provocation from the deceased had hurt his sense of self-respect which had reached its culmination on the day of occurrence. Therefore, we find no other reason as to why the accused would take such a drastic step of killing his own mother unless there was prolonged provocation from her. It appears that the provocation from the deceased had hurt his sense of self-respect which had reached its culmination on the day of occurrence. Taking note of the aforesaid circumstance we find force in the submission of Mr. Islam that the accused had acted under grave and sudden provocation and had assaulted the deceased in a fit of rage, without any premeditation. 21. For the reasons stated above, we convert the conviction of the accused to one under section 304 Part-II of the Indian Penal Code. 22. Accordingly, the jail sentence imposed upon the accused by the learned trial court shall stand converted from rigorous imprisonment for life to 10 (ten) years of rigorous imprisonment. The accused would be entitled to the benefit under section 428 of the Cr.P.C. The appeal stands partly allowed. Send back the LCR.