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2020 DIGILAW 97 (GAU)

Paritosh Saikia v. State Of Assam

2020-01-30

MANISH CHOUDHURY, MIR ALFAZ ALI

body2020
JUDGMENT Manish Choudhury, J. - The judgment and order dated 19.05.2018 passed by the learned Sessions Judge, Karbi Anglong at Diphu, Assam in Sessions Case No. 197/2017 (G.R. Case No. 380/2001), convicting the accused-appellant under Section 302 of the Indian Penal Code ("I.P.C.", in short) and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs. 2,000/- (Rupees two thousand only), in default, to suffer further simple imprisonment for a period of 6 (six) months, is the subject-matter of challenge in the instant jail appeal. 2. It was on 27.07.2001, one Sri Dhansing Engleng (P.W.-3), Subedar Major, 2nd Assam Special Reserve Force ("the A.S.R.F." and/or "the Force", in short), Karagaon, Karbi Anglong lodged an Ejahar before the In-Charge, Khatkhati Police Out Post alleging, inter-alia, that at about 5-15 p.m. on that day, the accused-appellant, a Grade-IV employee (Sweeper) of the A.S.R.F., killed his wife by hacking with a dao in his rented house located in Balijan, outside the premises of the Force. He further stated that on receiving the information of the said incident, he along with some officers and staff of the Force immediately rushed to the place of occurrence and apprehended the accused-appellant. The dead body of the wife of the accused-appellant, Minakshi Bora Saikia was found lying in the courtyard of the place of occurrence. 3. On receipt of the aforesaid Ejahar, the In-Charge, Khatkhati Police Out Post entered the same vide General Diary Entry No. 483 dated 27.07.2001 and thereafter, forwarded the Ejahar to the Officer In-Charge, Bokajan Police Station for registering a case under proper sections of law and he started the investigation of the case. On receipt of the Ejahar, the Officer In-Charge, Bokajan Police Station registered a case being Bokajan Police Station Case No. 115/2001 under Section 302, I.P.C. on 28.07.2001. 4. During the course of investigation, the place of occurrence was visited by the Investigating Officer (I.O.), P.W.-6 and found the dead body of Minakshi Bora Saikia lying in the courtyard of the house of the accused-appellant. The I.O. also stated to have found the accused-appellant present at the place of occurrence. The inquest on the dead body (Ext.-3) of the deceased was conducted by the I.O. at the place of occurrence in presence of local public. Finding a khukri shaped dao (Mat. Ext.-I) and a piece of stone (Mat. The I.O. also stated to have found the accused-appellant present at the place of occurrence. The inquest on the dead body (Ext.-3) of the deceased was conducted by the I.O. at the place of occurrence in presence of local public. Finding a khukri shaped dao (Mat. Ext.-I) and a piece of stone (Mat. Ext.-II) at the place of occurrence, the same were seized vide Ext.-2. The I.O. also recorded the statements of the witnesses under Section 161, Cr.P.C. and prepared the sketch map (Ext.-4). The accused-appellant was arrested from the place of occurrence. Thereafter, the dead body was sent to Diphu Civil Hospital at Diphu for its post-mortem examination. The post-mortem examination of the dead body of the deceased, Minakshi Bora Saikia was done on 28.07.2001 at Diphu Civil Hospital. 5. On conclusion of investigation, the I.O. submitted a charge sheet being Charge Sheet No. 70/2001 dated 31.12.2001 (Ext.-7) finding a prima facie case against the accused-appellant for commission of the offence under Section 302, I.P.C. Subsequent to the submission of the charge-sheet and on securing his appearance before the Court of learned Magistrate, Karbi Anglong, Diphu, the copies were furnished to the accused-appellant in compliance of procedure prescribed in Section 207, Cr.P.C. As the offence under Section 302, I.P.C. is exclusively triable by the Court of Sessions, the case record of G.R. Case No. 380/2001 stood transmitted to the Court of Sessions, Nagaon by an order of commitment dated 29.12.2004 as per the provisions of Section 209, Cr.P.C. 6. On receipt of the case record of G.R. Case No. 380/2001 by the learned Court of the then Additional Deputy Commissioner, Karbi Anglong, Diphu, Sessions Case No. 35/2004 was registered. Before the learned Court of Additional Deputy Commissioner, the learned Public Prosecutor and the learned State defence counsel were heard on the point of charge and upon perusal of the materials available in the case records, a charge under Section 302, I.P.C. was framed against the accused-appellant on 15.12.2005. The charge was then read over, interpreted and explained to the accused-appellant and thereafter, the trial of the case commenced. 7. During the course of trial, the prosecution side in order to bring home the charge under Section 302, I.P.C. examined as many as 7 (seven) witnesses viz. (1) P.W.-1 :- Subimal Purkayastha; (2) P.W.-2 :- Prasanna Kumar Roy; (3) P.W.-3 :- Dhansing Engleng, the informantr; (4) P.W.-4 :- Dr. 7. During the course of trial, the prosecution side in order to bring home the charge under Section 302, I.P.C. examined as many as 7 (seven) witnesses viz. (1) P.W.-1 :- Subimal Purkayastha; (2) P.W.-2 :- Prasanna Kumar Roy; (3) P.W.-3 :- Dhansing Engleng, the informantr; (4) P.W.-4 :- Dr. Ruplal Nunisa; (5) P.W.-5 :- Smti. Narmada Chetri; (6) P.W.-6 :- Pramod Das, the I.O.; and (7) P.W.-7 :- Hikmat Suter. The prosecution had also exhibited 6 (six) nos. of documents viz. (1) Ext.-1 :- Ejahar; (2) Ext.-2 :- Seizure List; (3) Ext.-3 :- Inquest Report; (4) Ext.-4 :- Sketch map of the PO; (5) Ext.-5 :- Forwarding Report; and (6) Ext.-6 :- Dead Body Challan. Apart from that, two material exhibits had been exhibited viz. (1) Mat. Ext.-I :- One 20 inches long dao similar to a khukri (handle=5.5 inches & iron portion = 14 inches); and (2) Mat. Ext.-II :- One sharpening stone. The accused-appellant was examined under Section 313, Cr.P.C. and the defence adduced no defence witness. It transpires that during the pendency of the trial, the case stood transferred to the Court of learned Sessions Judge, Karbi Anglong and on and from 01.11.2017, the trial was conducted in the Court of learned Sessions Judge, Karbi Anglong. Having found the charge framed under Section 302, I.P.C. well established against the accused-appellant, the learned trial court convicted him accordingly and passed the sentence mentioned hereinabove. Aggrieved by the aforesaid Judgment and Order, the accused-appellant preferred the instant appeal. 8. We have heard Ms. Susmita Kanungoe, learned Amicus Curiae for the accused-appellant and Ms. S. Jahan, learned Addl. Public Prosecutor for the State. 9. Ms. Susmita Kanungoe, learned Amicus Curiae extensively referring to the testimonies of the prosecution witnesses, has submitted that the accused-appellant could not have been convicted on the charge of murder. Most of the witnesses, he submits, are post-occurrence witnesses. The evidence of P.W.-5 who claimed to have seen the incident, cannot be relied upon as she appeared to have deposed to shield her husband. He further submits that on the basis of the evidence on record, the accused-appellant, at the most, could be convicted for an offence of culpable homicide not amounting to murder, but not for murder. 10. Learned Addl. Public Prosecutor, Ms. Jahan has supported the impugned judgment and order of conviction and sentence. He further submits that on the basis of the evidence on record, the accused-appellant, at the most, could be convicted for an offence of culpable homicide not amounting to murder, but not for murder. 10. Learned Addl. Public Prosecutor, Ms. Jahan has supported the impugned judgment and order of conviction and sentence. Referring to the nature of the injuries sustained by the deceased, it is submitted by her that the accused-appellant had committed the act of murder and the evidence led by the prosecution clearly established the same. As such, she submits that no interference is called for as the accused-appellant has rightly been convicted under Section 302, I.P.C. 11. We have considered the submissions of the learned counsel for the parties. We have also perused the judgment and order under challenge and the materials available in the case records of Sessions Case No. 197/2017, in original. 12. As has been mentioned above, 7 (seven) nos. of witnesses were examined by the prosecution in order to substantiate the charge of murder brought against the accused- appellant. Out of those 7 (seven) witnesses, P.W.-1, P.W.-2, P.W.-3 and P.W.-7 are employees of the A.S.R.F. and colleagues of the accused-appellant in the Force. P.W.-5 is the wife of P.W.- 7. P.W.-4, Dr. Ruplal Nunisa was posted as the Senior Medical & Health Officer at Diphu Civil Hospital on 28.07.2001 when he conducted the post-mortem examination on the dead body of the deceased. P.W.-6, Pramod Das was the In-Charge of Khatkhati Police Out Post, who caused investigation as the Investigating Officer (I.O.) of the case. 13. The testimonies of P.W.-1, P.W.-2 and P.W.-3 are in similar lines. P.W.-1, a colleague of the accused-appellant, had stated that on the date of the incident, he was in the office when he heard that the accused-appellant had killed his wife. He stated that the accused-appellant was apprehended thereafter. The accused-appellant had confessed before them of killing his wife. P.W.-2, another colleague, had deposed that the accused-appellant was residing in a rented house near to the premises of the Battalion/Force. Hearing the news that the accused-appellant had killed his wife, he stated to have proceeded to the place of occurrence. Going there, he saw the accused-appellant with a dao in his hand and the dead body of his wife lying on the ground. Police came to the place of occurrence. Hearing the news that the accused-appellant had killed his wife, he stated to have proceeded to the place of occurrence. Going there, he saw the accused-appellant with a dao in his hand and the dead body of his wife lying on the ground. Police came to the place of occurrence. He stated that the accused-appellant had confessed his guilt before them. Both P.W.-1 and P.W.-2 are witnesses to the seizure made vide Ext.-2, Seizure List whereby Mat Ext.-I and Mat. Ext.-II were seized. These two witnesses were, however, not cross-examined by the defence. 14. P.W.-3, another employee in the Force, had deposed that on 27.07.2001, he lodged the Ejahar (Ext.-1). On that day at around 5-00 p.m., people including him, assembled at a play ground where a football match was going on. He stated that hearing hue and cry, he with other people reached the house of the accused-appellant and saw the accused-appellant walking around with a dao in his hand and the dead body of his wife lying in the courtyard. He stated to have informed P.W.-6 over telephone who, later on, arrived at the place of occurrence and apprehended the accused-appellant. He also mentioned that the accusedappellant confessed that he killed his wife before them. Like P.W.-1 and P.W.-2, P.W.-3 is a witness to the Ext.-2, Seizure List. He is also a witness in Ext.-3, Inquest Report. In crossexamination, P.W.-3 reiterated that the accused-appellant had confessed in their presence that he himself had caused the incident. 15. P.W.-7 used to reside in a rented house near to the rented house of the accused-appellant. He deposed to the effect that on the day of the incident, when he was changing his dress in his house after returning from his duty he heard a noise outside. Then he came out of his house and saw the accused-appellant standing with a dao in his hand and his wife lying near him on the ground. The public gathered at the place of occurrence and the accused-appellant threw away the dao. The police thereafter came there and arrested the accused-appellant. He was not aware why the murder was committed. In his cross-examination, he admitted that he did not see the occurrence himself and he had not gone near the deceased. 16. The public gathered at the place of occurrence and the accused-appellant threw away the dao. The police thereafter came there and arrested the accused-appellant. He was not aware why the murder was committed. In his cross-examination, he admitted that he did not see the occurrence himself and he had not gone near the deceased. 16. P.W.-5 had deposed that the accused-appellant had brought his wife to the rented premise only about 9 (nine) days prior to the date of occurrence. On the date of the incident which took place at around 5-00 p.m., she was sitting outside their house with her children. At that time, her husband (P.W.-7) returned from the office after duty and was taking bath. At that time, she stated to have seen the accused-appellant whose house was situated on the side, dragging his wife from inside his house to the courtyard by holding her hands. He thereafter assaulted his wife with a dao on her body and his wife fell down. On seeing it, they raised noise and hearing the same, P.W.-3 arrived at the place of occurrence. Her husband also came out of the house. Other people from the Force also gathered there. She further stated that quarrel often used to take place between the accused-appellant and his wife. In her cross-examination, P.W.-5 stated that the accused-appellant used to live alone in the rented house. Once she had visited the house of the accused-appellant after he brought his wife for the first time there. She feigned ignorance about the issues for which quarrels used to take place between them. 17. P.W.-4 in his examination-in-chief, had stated that during the post-mortem examination of the deceased on 28.07.2001, he found that neck of the deceased was cut. He further found that the muscle and spinal cord vessels were cut along the second cervical vertebrae. Injuries were found to be ante mortem in nature which led to the death of the deceased and in his opinion, the cause of death was due to shock and hemorrhage. In the cross- examination, it was elicited from him that the injury was caused by a sharp weapon. The Post-Mortem Examination Report was not, however, exhibited and proved through this witness nor through any other witness. 18. P.W.-6, the I.O. had, in his deposition, reiterated about the steps, mentioned hereinabove, he had taken in the course of investigation. In the cross- examination, it was elicited from him that the injury was caused by a sharp weapon. The Post-Mortem Examination Report was not, however, exhibited and proved through this witness nor through any other witness. 18. P.W.-6, the I.O. had, in his deposition, reiterated about the steps, mentioned hereinabove, he had taken in the course of investigation. He stated to have conducted the inquest on the dead body at the place of occurrence itself and prepared Ext.-3, Inquest Report there itself in presence of the local public. Mat. Ext.-I and Mat. Ext.-II were also seized vide Ext.-2 Seizure List. He prepared a sketch map of the place of occurrence vide Ext.-4. He arrested the accused-appellant at the place of occurrence and forwarded the dead body of the deceased vide Ext.-5, Forwarding Report and Ext.-6, Dead Body Challan to Diphu Civil Hospital for post-mortem examination. The accused-appellant confessed his crime before him. In view of the confession, P.W.-6 forwarded the accused-appellant to the Court for recording his confessional statement. After collection of the confessional statement and Post-Mortem Examination Report, he submitted the charge-sheet (Ext.-7). In his cross-examination, he stated that he recovered the blood stained dao which was found lying beside the dead body of the deceased but the same was not sent to the laboratory for examination. 19. On a perusal of the judgment and order under challenge, it transpires that the learned trial Court had recorded that the charge of murder against the accused-appellant having found the same well established in view of the testimonies of the prosecution witnesses and the extra-judicial confession of the accused-appellant and the admission of the accused-appellant himself at various points including at the stage of examination of the accusedappellant under Section 313, Cr.P.C. The learned trial Court on an analysis of the evidence on record, has returned the finding that the offence committed by the accused-appellant is murder. The explanation sought to be provided by the accused-appellant has been found unacceptable. 20. In the above back drop, when we consider the evidence of P.W.-1, P.W.-2, P.W.-3 and P.W.-7, it is found that all these witnesses had arrived at the place of occurrence after the death of the deceased. None of them had seen the occurrence. The explanation sought to be provided by the accused-appellant has been found unacceptable. 20. In the above back drop, when we consider the evidence of P.W.-1, P.W.-2, P.W.-3 and P.W.-7, it is found that all these witnesses had arrived at the place of occurrence after the death of the deceased. None of them had seen the occurrence. All of them had, however, consistently deposed that when they reached the place of occurrence they found the accused-appellant standing in the courtyard of his house with a dao in his hand and the dead body of his wife lying in the courtyard. Nothing has been elicited from any of these witnesses to demolish this part of their testimonies. There is nothing on record to hold any opinion that these 4 (four) witnesses were or anyone out of them was inimical to the accused-appellant and were/was holding any grudge against the accused-appellant so as to falsely implicate him. The arrival of P.W.-3 at the place of occurrence immediately after the occurrence is not disputed on behalf of the defence at any point of time. The presence of P.W.-1 and P.W.-2 at the place of occurrence after the occurrence is also not contested by the defence. As the house of P.W.-7 is near to the house of the accused-appellant i.e. the place of occurrence, his presence at his house after the office hours is only natural. Thus, it is well established that immediately after the occurrence, the accused-appellant was found standing in his courtyard with a dao in his hand and the dead body of his wife lying in the courtyard itself. 21. From the evidence of the doctor, it has emerged that the deceased had sustained the cut injury in the neck and as a result of the said injury, she succumbed to death due to shock and hemorrhage. It has further emerged that the injury was caused by a sharp weapon. Mat. Ext.-I is a khukri shaped dao of about 20 inches in length with the length of the iron portion of 14 inches. One edge of the dao is usually sharp. In his examination under Section 313, Cr.P.C. the accused-appellant had admitted that he had killed his wife but it was not intentional. Mat. Ext.-I is a khukri shaped dao of about 20 inches in length with the length of the iron portion of 14 inches. One edge of the dao is usually sharp. In his examination under Section 313, Cr.P.C. the accused-appellant had admitted that he had killed his wife but it was not intentional. When he was asked whether he made any confessional statement at his first appearance before the Magistrate, on 30.07.2001, admitting that he had killed his wife with a dao, he stated that he never gave the statement with conscience at that time. Further, when he was asked as to whether he pleaded guilty at the time of framing of charge under Section 302, I.P.C. on 15.12.2005, he admitted the fact that he pleaded guilty at the time of framing of the charge. On perusal of the records, it is found that the statement of the accused-appellant was recorded by the Magistrate on 28.07.2001 under Section 164, Cr.P.C. wherein he confessed to have inflicted the fatal injuries on the person of his wife. He stated to have inflicted the same as his wife did not want to stay with him and she had left him on 6 (six) occasions earlier. He claimed that his wife had extra-marital affairs and he warned her in respect of the same. The said confessional statement was not brought on record by the prosecution for reasons best known to it but from it, it is noticed that the accused-appellant whether it was made with conscience or not, on 28.07.2001, had appeared to have admitted that he inflicted the injuries and he at the stage of framing the charge on 15.12.2005 and also the stage of his examination under Section 313, Cr.P.C. on 09.10.2012, had admitted to have killed his wife, which according to him was unintentional. Thus, on a dispassionate analysis of the evidence and the materials on record, we are of the considered view that the learned trial Court is justified to hold that it is the accused-appellant only who had caused the death of his wife by inflicting the injury on her body. 22. The next question which has, thus, arisen for consideration is whether the act of the accused-appellant was murder or culpable homicide not amounting to murder. To find out about the same, it is also required to decipher whether there was any intention. 23. 22. The next question which has, thus, arisen for consideration is whether the act of the accused-appellant was murder or culpable homicide not amounting to murder. To find out about the same, it is also required to decipher whether there was any intention. 23. P.W.-5 was categorical in her testimony that the accused-appellant had assaulted his wife with a dao on her body and his wife fell down immediately. Prior to such assault, the accused had dragged his wife from inside the house to the courtyard by holding her hands. P.W.-5 did not say that the dao was in the hands of the accused-appellant when he was dragging his wife from inside the house. It can, thus, be deduced that the accused-appellant had picked up the dao after having dragged his wife out of the house. If P.W.-5 was an eye-witness to the said incident she could have thrown some light in that aspect but she did not make any mention as to how the dao came in the hands of the accused-appellant. It is also not said by P.W.-5 that the accused-appellant had inflicted more than one blow by the said dao. From the above evidence of P.W.-5 and the evidence of P.W.-4, the autopsy doctor, wherefrom nothing has emerged that there was more injury than one on the body of the deceased, the accused-appellant is found to have not inflicted more than one blow on the person of his wife which is otherwise sufficient in the ordinary course of nature to cause her death. The infliction of the cut injury and its nature proves the intention of the accusedappellant but mere causing of such injury cannot be termed to be cruel or unusual in all situations. 24. Exception 4 to Section 300, I.P.C. which defines murder has provided that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. From the nature of the injury sustained by the deceased and the part i.e. the neck where the injury was inflicted by a sharp weapon it can very well be said that it is an injury which is sufficient in the ordinary course of nature to cause death. From the nature of the injury sustained by the deceased and the part i.e. the neck where the injury was inflicted by a sharp weapon it can very well be said that it is an injury which is sufficient in the ordinary course of nature to cause death. But all fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of not availing the benefit of Exception 4 of Section 300, I.P.C. From the evidence on record, after the accused-appellant had inflicted the injury and his wife had fallen down, the accused-appellant did not inflict any other injury upon his wife when she was in a helpless condition. From the fact that the accused-appellant had dragged his wife from inside the house by holding her hands, it can be inferred that there was some quarrel which took place inside the house and he dragged his wife thereafter. At the very first point of time, when he appeared before the Court after being forwarded pursuant to his arrest, the accused-appellant had stated before the Magistrate that his wife did not want to stay with him and she left his house on 6 (six) earlier occasions. From the evidence of P.W.-5, it has emerged that the deceased came to the house of the accused-appellant only 9 (nine) days prior to the date of incident. P.W.-5 further stated that there used to be quarrels between the accused-appellant and his wife. It further transpires that the accused-appellant suspected his wife of having some extramarital affairs and he went on to accuse the same against his wife of having an affair with P.W.-7 in his examination under Section 313, Cr.P.C. when his wife came to stay in his rented house only 9 (nine) days prior to the date of incident. All these go to show that there was serious discord between the accused-appellant and his wife for which quarrels often took place between them. It has, thus, emerged that in the heat of passion upon a sudden quarrel, the accused-appellant after having dragged his wife outside got himself armed with a dao by which he inflicted the cut injury at the spur of the moment which resulted into the death of his wife. But after inflicting the injury, the accused-appellant did not flee from the place of occurrence and he remained there with the dao in his hand. But after inflicting the injury, the accused-appellant did not flee from the place of occurrence and he remained there with the dao in his hand. For the said reason, it cannot be held that he had acted in a cruel or unusual manner. 25. Taking into consideration all the above facts and circumstances of the case, we are of the considered opinion that the accused-appellant is proved to have committed the offence of culpable homicide without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and on the spur of the moment and he did not act in a cruel or unusual manner and his case is covered by Exception 4 of Section 300, I.P.C. which is punishable under Section 304, I.P.C. The finding of the learned trial Court holding the accused-appellant guilty of the offence of murder punishable under Section 302, I.P.C. is set aside and he is convicted for commission of the offence of culpable homicide not amounting to murder, punishable under Section 304 Part-I, I.P.C. and on that count, he is sentenced to undergo rigorous imprisonment for 10 (ten) years by maintaining the amount of fine of Rs. 2,000/- (Rupees two thousand) only, in default, to undergo simple imprisonment of another 6 (six) months, as has been passed by the trial Court. In view of the same, the present appeal stands partly allowed. 26. We mention our appreciation for the services rendered by Ms. Susmita Kanungoe, learned Amicus Curie and direct that an amount of Rs. 7,500/- be paid to her as remuneration by the State Legal Services Authority. Return the L.C.R. forthwith.