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2020 DIGILAW 172 (GAU)

Miloo Goala v. State Of Assam,

2020-02-10

HITESH KUMAR SARMA, SUMAN SHYAM

body2020
JUDGMENT H.K. Sarma, J. - The Criminal Appeal (J) No.112/2018, has been preferred by appellant Sri Miloo Goala, against the judgment and order, dated 10.07.2018, in Session Case No. 99(S-S)/2013, passed by the learned Sessions Judge, Sivasagar, convicting and sentencing him to rigorous imprisonment for life for offence punishable under Section 302 of the IPC and to pay a fine of Rs 1,000/-, and in default to undergo simple imprisonment for 1 (one) month. 2. Heard Mr. Bhaskar Baruah, learned Amicus Curiae appearing for the appellant as well as Mr. RJ Baruah, learned Additional Public Prosecutor, appearing for the State of Assam. 3. The prosecution case, as unfolded during the trial, is that on 17.02.2013, while his wife Jayanti Gosai @ Goala was cutting betel nut, the appellant suddenly hit on her head with a wooden batten. Thereafter, also several assaults were inflicted on her by the appellant with the wooden batten. Then she was taken to Amguri Hospital by PW8 (father-in-law of the deceased) and therefrom to Jorhat Hospital. But, she succumbed to her injuries. 4. On receipt of the FIR lodged by the PW10, Arun Kr. Gossai on the above facts on 18.02.2013, the Halowating Police Station registered a case being No. 10/2013 under Section 302 of the IPC. The Police investigated into it, collected evidence, and finally, laid the chargesheet against the appellant under Section 302 of the IPC. 5. A charge under Section 302 of the IPC was framed against the appellant to which he pleaded innocence. Accordingly, the trial commenced. 6. In this case, the prosecution examined as many as 18 (eighteen) witnesses. 7. After closure of the prosecution evidence, the statement of the appellant was recorded under Section 313 of the Cr.PC. In his such statement, he has admitted to have assaulted his wife-deceased out of anger. He has also taken the plea that while he was sleeping at about 2:00 pm on the date of occurrence, due to sudden shock, he lost control and hit on the head and on other parts of the body of his wife. However, he has claimed that he did not have any intention of causing the death of the deceased. The appellant did not examine any witness in his defence. 8. However, he has claimed that he did not have any intention of causing the death of the deceased. The appellant did not examine any witness in his defence. 8. We would like to take up the medical evidence on record as well as other evidence to ascertain as to whether the death of the deceased was homicidal in nature. 9. The evidence of the Autopsy Doctor, examined as PW1 is that he had performed the post-mortem examination of the deceased Jayanti Gosai @ Goala. The relevant part of his findings, recorded in the post-mortem examination report (Ext.1) is as follows:- wxyz "External Appearance:- A female dead body of average built,. Rigormortis present all over the body. zyxw wxyz i) A stitch wound 7 cm in length present on the head in the left parietal area of the scalp from back to front. On opening underlying scalp found contused and a communated fracture present on the parietal bone extending to the frontal bone with an underlying extradural haematoma of size 12 X 10 X .5 cm. Diffuse sub-dural haemorrhage present on both hemispheres of the brain. The area of brain corresponding to the extradural haematoma found flattened. zyxw wxyz ii) A stitch wound of 5 cm length present on the forehead left side placed horizontally 6 cm above the eye brows. zyxw wxyz iii) A stitch wound of 10 cm length present on the right side of face extending in a curved manner from 1 cm above the medial part of right eye brow horizontally and then downwards around the eye up to upper part of cheek. zyxw wxyz iv) A stitch wound 5 cm length and closed by 5 silk sutures present on the forehead left side 1 cm above the eye upper and placed horizontally. zyxw wxyz v) A stitch wound 4 cm long and closed by 4 nylon stitches present on lower lip left side up to the inner aspect. zyxw wxyz vi) A stitch wound 4 cm present on the chin" He has also opined that the death was due to comma as a result of the head injuries sustained and all the injuries described were ante-mortem and caused by blunt force impact. He has further opined that the injuries were sufficient to cause death of a person in the ordinary course of nature and that such injuries may be caused by material Ext. 1, wooden batten. He has further opined that the injuries were sufficient to cause death of a person in the ordinary course of nature and that such injuries may be caused by material Ext. 1, wooden batten. zyxw 10. Altogether 6 (six) injuries were found by the Autopsy Doctor and the first two injuries, referred to above, are on the vital parts, i.e., on the head of the deceased. 11. The evidence of the Autopsy Doctor has not been assailed by the defence in his cross-examination. The material Ext. 1 which was used in the commission of the offence by the appellant was seized by the Investigating Police Officer vide the seizure memo, Ext. 2 from the place of occurrence on being identified by the son of the appellant, i.e., PW15. 12. Pw15 has also deposed that he had witnessed his father (appellant) assaulting his mother (deceased) with the material Ext. 1 on her head and on other parts of her body resulting, ultimately, in her death. Such fact has also been admitted by the appellant in his statement recorded under Section 313 of the Cr.PC against Question Nos. 31 and 46. Therefore, such evidence leaves us with no doubt that the death of the deceased Jayanti Gosai @ Goala was homicidal in nature. 13. On examination of the entire evidence on record, it is found that the PW15, i.e., the minor son of the appellant and his two younger sisters were sitting in the same room while his mother was cutting betel nut. Such evidence of the PW15 remains unimpeached throughout, meaning thereby that he was present at the place of occurrence along with his mother (deceased), his father (appellant) and his two younger sisters at the time of occurrence. He made a statement, on oath, under Section 164 of the Cr.PC before the learned Judicial Magistrate, First Class, Sivasagar. In his such statement, he is very categorical while stating that his father had inflicted blows on the head and on other parts of the body of his mother with a wooden batten while his mother was cutting betel nut. At that moment, the PW15 screamed, following which, the neighbours came to the place of occurrence and one Ranjit Khodal (examined as PW4) broke the door of their house, entered into the room and brought them out. He is very specific to state that his father (appellant) killed his mother (deceased). At that moment, the PW15 screamed, following which, the neighbours came to the place of occurrence and one Ranjit Khodal (examined as PW4) broke the door of their house, entered into the room and brought them out. He is very specific to state that his father (appellant) killed his mother (deceased). On the other hand, he deposed to the effect that while his mother was cutting betel nut he was sitting in the same room alongwith his two sisters, his father (appellant) had hit on the head of his mother with a wooden batten following which she fell down. Thereafter also, several wooden batten blows were inflicted on various parts of the body of his mother. He also specifically stated, in his evidence, that his father had locked the door from inside at the time of the occurrence and that his father also directed them to see in some other direction while assaulting his mother. 14. The PW4, Ranjit Khodal has deposed that he went to the place of occurrence hearing hue and cry and found the wife of the appellant lying in an injured state on the bed while the appellant was standing by her side. The children were also present there. He also noticed blood oozing out from the face of the deceased. Such evidence of the PW4 proves the fact of presence of the appellant along with his son, daughters and the wife in an injured state at the time of occurrence. 15. The PW6, Arun Bedia also deposed that he came to the place of occurrence after hearing hue and cry and found the doors of the house closed with the deceased lying in an injured state. He broke open the doors and found the appellant standing with a wooden stick in his hand. His children were also present there. The deceased Jayanti Gosai @ Goala was not in her senses. The evidence of the PW6 corroborates the evidence of PW1 and PW4. 16. The PW8, Ramjit Gowal also deposed that while he came to the place of occurrence he had seen the appellant present at the place of occurrence along with his three children. He had taken the deceased injured Jayanti Gosai @ Goala to the Hospital although she did not survive. 17. The evidence of PW9, Smti. 16. The PW8, Ramjit Gowal also deposed that while he came to the place of occurrence he had seen the appellant present at the place of occurrence along with his three children. He had taken the deceased injured Jayanti Gosai @ Goala to the Hospital although she did not survive. 17. The evidence of PW9, Smti. Geeta Gowala is to the effect that while she went to the place of occurrence, immediately after the occurrence, she found the appellant, his injured wife and their children there although she did not witness the occurrence. 18. The PW10, Arun Kr. Gossai is the informant. The deceased was his niece. He heard that the appellant had killed his wife, i.e. his niece. Therefore, he lodged the FIR. He has no knowledge about the occurrence. 19. The evidence of PWs 2, 3, 5, 11, 12, 13, 14 and 15 is not of relevant, in view of the fact that they are neither eye-witnesses to the occurrence nor to the circumstances leading to the occurrence. The PW7, Mantu Gowala is the witness to the inquest only and he is not cross-examined to dispute this fact. 20. There is no doubt as regard the seizure of the weapon used in the offence vide Ext. 2 from the place of occurrence on being shown by PW15. Such evidence taken together with the statement made by the appellant under Section 313 of the Cr.PC leaves no room for doubt that he had used the said wooden batten to cause the fatal injuries to the person of the deceased. 21. The PW18, Luhit Chetia, is the Investigating Police Officer. He deposed about various stages of investigation of the case from receipt of the FIR till laying of the chargesheet. It has also come out from his evidence that inspite of search made by him, the appellant could not be apprehended as he was absconding and later on he was apprehended from his house on 23.02.2013, i.e. after about 6 (six) days. 22. The evidence, referred to above, particularly the evidence of PW15, who is the eyewitness of the occurrence proves that it was the appellant who had inflicted the fatal assaults to his mother resulting in her death. His presence in the place of occurrence is an admitted fact even in the statement of the appellant under Section 313 of the Cr.PC. The evidence, referred to above, particularly the evidence of PW15, who is the eyewitness of the occurrence proves that it was the appellant who had inflicted the fatal assaults to his mother resulting in her death. His presence in the place of occurrence is an admitted fact even in the statement of the appellant under Section 313 of the Cr.PC. The evidence of PWs 4, 5 and 9 reinforced the fact revealed by the evidence of the PW15 as regards his presence at the place of occurrence at the relevant time of occurrence. Therefore, the evidence of the PW15 is categorical that it was the appellant who had killed the deceased. The evidence of PW15 is further corroborated by the answer given by the appellant to the Question Nos. 22 and 31 in her statement under Section 313 of the Cr.PC that he had assaulted the deceased, out of anger, without intention to kill her. 23. The learned Amicus Curiae, Mr. Bhaskar Baruah appearing for the appellant has fairly submitted that although the evidence of PW8 is found to have indicated that the appellant was insane at the relevant time of occurrence, yet, such fact has not been proved, the same being not corroborated by any of the witnesses. No medical evidence is also there to support such a plea. On the other hand, the appellant has canvassed, during the course of argument, that the appellant did not commit the offence with pre-meditation and he did not have intention of causing the death of the deceased. It is further argues that he had assaulted the deceased as she had provoked him saying that she would again leave his house with the children to which the appellant answered that she should keep the children with him, in the event she would leave him. Following this conversation, some altercation had taken place between the deceased and the appellant. 24. The learned Additional Public Prosecutor, Mr. RJ Baruah, refusing to subscribe to such submission of the learned Amicus Curiae, has submitted that the altercation, mentioned above, is not such grave and sudden that it provoked the appellant, thus, depriving him of the power of self control. 25. The fact that the appellant had inflicted the fatal injuries to the deceased on a trifle matter without their being grave and sudden provocation. 25. The fact that the appellant had inflicted the fatal injuries to the deceased on a trifle matter without their being grave and sudden provocation. That apart, the conduct of the appellant in inflicting numerous assaults on the person of the deceased including the fatal assaults on her head and his instructions to the PW15 to look at some other directions while he was assaulting the deceased coupled with the fact that before committing the offence the appellant had closed the doors and windows of the house speaks volume of his premeditation and intention to cause death of the deceased. Therefore, we are unable to agree with the submission of the learned Amicus Curiae that the case of the appellant is covered by the Exception 1 of Section 300 of the IPC. 26. In view of the above discussions, this court is of the view that the judgment of the learned trial court, convicting the appellant, as indicated above, is based on correct appreciation of the evidence on record. Therefore, no interference is called for by this court in exercise of its appellate jurisdiction. 27. Accordingly, the appeal stands dismissed. 28. Send down the LCR with a copy of this judgment. 29. This Court appreciates the assistance rendered by the learned Amicus Curiae, Mr. Bhaskar Baruah and directs that an amount of Rs 7,500/- be paid to him as honorarium for his assistance.