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2020 DIGILAW 2 (GAU)

Naba Kr. Chutia v. State of Assam

2020-01-02

HITESH KUMAR SARMA, SUMAN SHYAM

body2020
JUDGMENT : Hitesh Kumar Sarma, J. 1. This appeal is directed against the judgment and order, dated 21.11.2016, passed by the learned Additional Sessions Judge (FTC), Lakhimpur, North Lakhimpur, in Sessions Case No. 59(NL)/2015, convicting the accused-appellant for commission of offence under Section 302 IPC and sentencing him to imprisonment for life and a fine of Rs. 10,000/- and in default of payment of fine, further rigorous imprisonment for 6 (six) months. 2. We have heard learned counsel for the accused-appellant, Mr. D. Talukdar and learned Additional Public Prosecutor for the state respondent, Ms. B. Bhuyan. 3. We have also examined the trial court records containing the evidence of the prosecution witnesses as well as the impugned judgment. 4. The prosecution case, as unfolded during the trial is that, at about 1:30 pm on 22.02.2015 when the deceased (Gunabati Chutia), was sitting in the house of PWs 4 & 6, the accused-appellant came there and inflicted injury with a 'Khante' dao on the back of the neck of the deceased causing instant death of the deceased and then fled away from the place of occurrence. The place of occurrence is the house of PW 6 and PW 4. 5. On such facts, the PW 1, Dilip Chutia, i.e., husband of the deceased, lodged the FIR with the Dhakuakhana Police Station, which registered a case being Dhakuakhana PS Case No. 21/2015, under Sections 302/34 IPC, investigated into it, collected evidence, and finally, on completion of investigation, laid charge-sheet against the accused-appellant for offence under Section 302 IPC. 6. After exhausting all required legal formalities, the learned trial court framed a formal charge against the accused-appellant under Section 302 IPC to which he had pleaded innocence, and therefore, the trial commenced. 7. To bring home the charge against the accused-appellant, the prosecution examined as many as 11 (eleven) witnesses, who were, except PW 10, examined in cross by the defence. After closure of the prosecution evidence, statement of the accused-appellant was recorded under Section 313 Cr.PC and in his such statement also he denied the accusations made against him. He also declined to adduce defence evidence. In his such statement, the accused-appellant had taken the plea of denial. 8. For convenience, we would like to first refer to the evidence of PW 10/Autopsy doctor. He also declined to adduce defence evidence. In his such statement, the accused-appellant had taken the plea of denial. 8. For convenience, we would like to first refer to the evidence of PW 10/Autopsy doctor. The PW 10 deposed that on 23.2.2015, he was working as Medical & Health Officer at North Lakhimpur Civil Hospital and on that day he performed the postmortem examination over the dead body of the deceased (Gunabati Chutia) vide Ext. 2. On postmortem examination, he found as follows: One incised Injury over the middle of back of neck with transaction of spinal cord (size- 4" x 2" x 3"). He also opined that the cause of death of the deceased is due to hemorrhage shock and spinal cord transaction as a result of injury sustained. 9. On perusal of the evidence on record, PWs 4, 8 & 9 are found to be the eyewitnesses to the occurrence. The occurrence took place in the house of PWs 4 & 6 is an undisputed fact. The evidence of PW 4 is that she was with her elder sister of her husband, Gunada Hazarika (PW 9). At the relevant time of occurrence while the accused-appellant came to her house the deceased also reached there. She had seen the accused-appellant cutting the deceased Gunabati Chutia with a 'Khante' dao on her neck. She then, came to the road and raised alarm following which the villagers gathered at the place of occurrence. Thereafter, the deceased was taken to the hospital by a 108 Ambulance. 10. PW 9, corroborating the evidence of PW 4, deposed that at the relevant time of occurrence, the deceased Gunabati Chutia came to her house, and coming out of the house, she found the accused was sitting there. Then, uttering the words "I will cut Gunabati", he inflicted the injury on the neck of the deceased in her presence. 11. PW 8 has also corroborated the evidence of PWs 4 & 9. It is his evidence that while he was sitting in the house of his deceased father-in-law, i.e. the house of PWs 4 & 6, the accused-appellant had cut the deceased Gunabati in the right side of her neck with a dao resulting in her instantaneous death. 12. 11. PW 8 has also corroborated the evidence of PWs 4 & 9. It is his evidence that while he was sitting in the house of his deceased father-in-law, i.e. the house of PWs 4 & 6, the accused-appellant had cut the deceased Gunabati in the right side of her neck with a dao resulting in her instantaneous death. 12. The evidence of the eyewitnesses i.e. PWs 4, 8 & 9, remained intact and defence could not discredit their evidence in respect of the fact that it was the accused-appellant, who had inflicted the fatal injury on the neck of the deceased causing her instantaneous death. It appears from the evidence of the autopsy doctor as well as the evidence of PWs 4, 8 & 9 that the death of the deceased is homicidal in nature. 13. During the course of argument, the learned counsel for the defence, while admitting that the death of the deceased was due to the injury inflicted by the accused-appellant, has submitted that the accused-appellant did not intend to cause death of the deceased and he did not have knowledge that the injury, he inflicted would have caused the death of the deceased. It is his further argument that the accused-appellant had inflicted the injury with a single blow resulting in her death, and therefore, it can be inferred that had he intended to cause death, he would have inflicted more than one blow. It has also been submitted by the learned counsel for the accused-appellant, referring to the evidence of PW 1, that the deceased, who was an Anganwadi worker, was supposed to leave her job in favour of the accused-appellant as she had already taken an amount of Rs. 20,000/- from him promising to relinquish her job. Even after taking money, the deceased did not honour the promise made to the accused-appellant, which anguished him. We have also taken note of the argument advanced by the learned defence counsel that the deceased arrived at the place of occurrence after the arrival of the accused. There is no evidence on record to indicate that the accused-appellant had knowledge that the deceased would come to the place of occurrence, and therefore, there could not be intention or pre-meditation on the part of the accused-appellant to inflict the injury and cause death of the deceased. We have already dealt with this aspect of the argument. There is no evidence on record to indicate that the accused-appellant had knowledge that the deceased would come to the place of occurrence, and therefore, there could not be intention or pre-meditation on the part of the accused-appellant to inflict the injury and cause death of the deceased. We have already dealt with this aspect of the argument. Therefore, we are not inclined to take up this issue relating to intention once again to avoid repetition. So far the pre-meditation is concerned, the discussion on the same aspect would have been necessary had the case been covered by any of the exceptions under Section 300 of the IPC. 14. From the evidence of PW 1, it appears that the deceased had taken an amount of Rs. 20,000/- from the accused-appellant for relinquishing her job as Anganwadi worker. But, the deceased did not honour the promise. This being the evidence of PW 1, it is taken to be the prosecution version in absence of contrary evidence. Thus, the prosecution admits that there was reason for the accused-appellant to be anguished with the deceased as she betrayed his faith even after taking Rs. 20,000/- which might have caused continued annoyance to him. Inspite of the fact that there was no immediate and sudden provocation for the accused-appellant to cause the fatal injury resulting in the death of the deceased, yet, on cumulative assessment of the evidence on record, it appears to this court that continuous annoyance caused by the deceased by not honouring the promise aforesaid, made the accused-appellant to inflict the injury to lull his anguish. 15. So far the argument of the learned counsel for the accused-appellant that the accused-appellant did not intend to cause death of the deceased, on assessment of the evidence on record, it is found that the accused-appellant was carrying the weapon of offence i.e. dao speaks volumes of the intention on the part of the accused-appellant to cause injuries to the deceased. The argument that there was no intention on the part of the accused-appellant, therefore, fails. However, the evidence on record does not reveal succinctly that the accused-appellant intended to cause such injuries that would cause death of the deceased. He had given a single blow on the back of the neck of the deceased which caused the instantaneous death of the deceased. However, the evidence on record does not reveal succinctly that the accused-appellant intended to cause such injuries that would cause death of the deceased. He had given a single blow on the back of the neck of the deceased which caused the instantaneous death of the deceased. Whether the fatal blow on the back of the neck was inflicted to the deceased in a planned manner knowing that it would likely to cause death of the deceased or not is not discernible from the evidence on record. The prosecution has also not dealt with this aspect while examining the witnesses. There is also no evidence led by the prosecution that the accused-appellant had inflicted a measured blow with the dao on the neck of the deceased to make him liable for his having knowledge that such bodily injury would likely to cause death of the deceased. 16. In view of the evidence on record, as discussed above, and the facts and circumstances appearing from such evidence, this court is of the view that the offence committed by the accused-appellant is a culpable homicide not amounting to murder. 17. Such being the position, this court is of the considered view that the evidence on record discloses that the accused-appellant is guilty of commission of offence under Section 304 Part-1 of the IPC. Therefore, the order of conviction recorded by the learned trial court of Additional Sessions Judge (FTC), Lakhimpur, North Lakhimpur for offence under Section 302 IPC is converted to one under Section 304 Part-1 of the IPC, and accordingly, the accused-appellant is convicted under Section 304 Part-1 of the IPC. 18. On consideration of the materials on record, this court is of the view that if the accused-appellant is sentenced to rigorous imprisonment for 10 years for offence punishable under Section 304 Part-1 of the IPC and to pay a fine of Rs. 5,000/-, in default of payment of fine, simple imprisonment for 3 months will meet the ends of justice. 19. Accordingly, on conviction, the accused-appellant is sentenced to rigorous imprisonment for 10 years and a fine of Rs. 5,000/-, and in default of payment of fine, simple imprisonment for 3 months under Section 304 Part-1 of the IPC. 20. The appeal is, accordingly, partly allowed.