Gauhati High Court
Reba Das vs State Of Assam on 19 May, 2015
Author: P.K.Saikia
Bench: P.K. Saikia, M.R. Pathak
1
IN THE GAUHATI HIGH COURT
(THE HIGH COUR T OF ASSAM , NAGALAND, M IZOR AM AND AR UNACHAL
PR ADESH )
CR L. Appeal No.119 of 2011
Sri Reba Das
S/o Sri Uma Das
R/o Dhalpur,
P.S.- Bihpuria,
Dist.- Lakhimpur (Assam)
..... Appellant
-Versus-
The State of Assam ..... R espondent
BEFORE
THE HON'BLE MR.JUSTICE P.K. SAIKIA
AND
THE HON'BLE MR.JUSTICE M.R. PATHAK
For the appellant :- Mr. B. Chakraborty, Mr. T.R. Sarma,
Mr. L. Gogoi, Mrs. P. Hazarika &
Ms. P. Mitra, Advocates.
For the respondent :- Mr. K. Mazumdar, Addl. P.P.
Date of hearing
& Judgment :- 19-05-2015
JUDGMENT AND ORDER (ORAL)
(P.K.Saikia, J) This appeal is directed against the judgment dated 19.05.2011, passed by learned Sessions Judge, Lakhimpur in Sessions Case No. 88 (NL) of 2009 convicting the appellant, Sri Reba Das (hereinafter referred to the accused person) of offence u/s 302 IPC and sentencing him to imprisonment for life and to pay fine of Rs. 5,000/- (Rupees Five Thousand), in default, to suffer R.I. for another 6 (six) months for the offence aforesaid.
CRL APPEAL NO. 119 OF 2011 2
2. Being aggrieved by and dis-satisfied with the judgment aforesaid, appellant Sri Reba Das (hereinafter referred to as 'accused person') preferred this appeal citing several infirmities in the judgment under challenge.
3. We have heard Mr. T.R. Sarma, learned counsel appearing for the appellant and Mr. K. Mazumdar, learned Addl. P.P. appearing for the State.
4. The case projected in the FIR dated 17.08.2005 and in subsequent trial, in short, is that on 17.08.2005 at about 8.00 am, one Reba Das, brother of the informant, Sri Jayanta Das hit his wife Sabita Das with an iron rod on her head. As a result of such assault, the victim sustained grievous injury for which she was taken to hospital, but she died on the way to hospital.
5. An FIR to that effect was lodged with Officer-in-Charge, Dharapur Police Outpost, by Jayanta Das same day. On receipt of the FIR, so lodged, Officer-in- Charge, Dharapur Police Outpost made necessary GD Entry and forwarded the same to O/C Bihpuria Police Station for registering a case and doing the needful.
6. On receipt of the case, O/C Bihpuria Police Station registered a case vide Bihpuria P.S. Case No. 186 of 2005 u/s 302 IPC and ordered one Nitul Das, SI of Police to investigate the case. Being so ordered, Sri Das visited the place of occurrence, conducted an inquest over the dead body, sent the same to hospital for post mortem examination, examined the witnesses, well acquainted with the facts and circumstances of the case.
7. In course of investigation, the I/O also arrested the accused person, did other needful and on conclusion of investigation, he submitted charge-sheet u/s 302 IPC against the accused person and forwarded him to the court to face trial. The Magistrate, before whom charge-sheet was so laid, committed the case to the Court of Session since the offence u/s 302 IPC is exclusively triable by the Court of Session.
CRL APPEAL NO. 119 OF 2011 3
8. On receipt of the case on commitment, learned Sessions Judge, Lakhimpur framed charge u/s 302 IPC against the accused person and the charge, so framed, on being read over and explained to the accused person, he pleaded not guilty and claimed to be tried. During trial, the prosecution had examined as many as 8 (eight) witnesses including the Medical Officer (in short, 'MO'), who conducted autopsy on the dead body and the Investigating Officer (in short, 'I/O') of the case.
9. The statement of the accused person was recorded u/s 313 Cr.P.C. In his statement u/s 313 CrPC, the accused had admitted to have killed the victim on the night in question. He, however, claimed that he had to kill the deceased when the deceased and her husband came to his house armed with weapons. In his statement, he further stated that being so attacked, he brandished an iron rod to frighten the deceased and her husband, however, somehow the iron rod hit the victim on her head causing grievous injury for which she died while being taken to hospital.
10. The accused also adduced the evidence of 2 (two) witnesses including himself in support of his plea that he canvassed before the court while being examined u/s 313 CrPC. On conclusion of trial and on hearing the submissions advanced by the learned counsel for the parties, the court below was pleased to convict the accused of offence u/s 302 IPC and sentenced him to punishment as aforesaid. It is that judgment which has been assailed in the present appeal.
11. Mr. Sarma, learned counsel for the appellant submits that on the night in question, the accused had to inflict wound on his sister-in-law since his sister-in- law and her husband came to his house in order to attack him and under such a horrible situation, he had to wave an iron rod to frighten the deceased and her husband which unfortunately landed on the head of his sister-in-law causing her death little later. In such a scenario, the accused cannot be convicted of offence u/s 302 IPC. Rather, the learned trial court, having regard to the evidence on record, ought to have convicted the accused u/s 304 Part -II IPC.
CRL APPEAL NO. 119 OF 2011 4
12. In support of his contention, the learned Amicus Curiae has relied on the decision of this Court in the case of Sow ab Ali (M D) Vs. State of Assam reported in (2014) 1 GLT 874 . The relevant part of the judgment is reproduced below:-
"8. Upon thorough consideration of the statements made at the bar and on going through the oral and documentary evidence, it becomes clear that the accused sustained head injury resulting into subdural hematoma, which is an internal and invisible injury. It is also in the evidence that in a state of quarrel, accused dealt a blow on the head of the deceased with a bamboo stick and it cannot be said that the accused had any intention of causing death. Otherwise, the accused had an intention of causing an injury, which resulted in subdural hematoma. Therefore, in such circumstances, it can only be said that the accused had the knowledge of causing death without intention of causing death and with the intention of causing injury, which is likely to cause death in the ordinary course of nature."
13. On the other hand, the learned Addl. P.P. submits that there is indisputable evidence on record to show that on the night in question, the accused quarrelled with his sister-in-law over some petty matters for which he assaulted her inflicting grievous injury on which caused her to die little later . Such evidence, coupled with the evidence that he had planted a blow on the head of the deceased with a weapon as dangerous as an iron pipe firmly establishes that the accused assaulted her with the intention to kill her.
14. The weapon used in committing the crime and body part targeted by the accused person as well as injuries which occasioned the instantaneous death of the victim make such a conclusion inevitable. Being so, according to the learned Addl. P.P., there is no infirmity in the judgment under challenge and therefore, she submits this Court to dismiss the appeal on affirming the judgment in question.
15. We have considered the rival submissions, having regard to the judgment under challenge and the evidence on record. Before proceeding further, we find it necessary to have a look at the evidence of Doctor who conducted autopsy on CRL APPEAL NO. 119 OF 2011 5 the body of the deceased at North Lakhimpur Hospital on 18.08.2005. He is Dr. Abdus Sattar Talukdar and was examined as PW5. According to him, on 18.05.2005, he conducted autopsy on the body of one Sabita Das, a Hindu female aged about 22 years and found the following :-
"The dead body was having bluish haematoma in both the eye balls. Once stitched wound in left frontal region of the size 3" x 1½' x bond cut (left frontal). One stitched wound in right parietal region anteroposterioraly of the size 3' x 1' x bone cut.
Lacerated wound in left frontal region i.e. fracture of left frontal bone. Lacerated wound in right partietal region antero posteriorally i.e., fracture of right parietal bone. Vertrebra was healthy.
Membrane was ruptured in left frontal and right parietal region. Massive subdural haemorrhage.
Rupture of left frontal lobe with haemorrhage rupture of right lobe with haemorrhage. Spinal cord was healthy.
Other organs were found healthy.
The injuries were ante mortem in nature. Cause of death was shock and haemorrhage as a result of injury in the head.
Such injuries, in the ordinary course, may cause death of a person.
Ext. 4 is my post mortem report and 4 (i) is my signature."
16. The evidence of Doctor reveals that the deceased died a homicidal death on sustaining injuries which he had detected on her head. So situated, let us consider the evidence of other witnesses, namely PW 1, PW 2, PW 3, PW 4, PW 6, PW 7 and PW 8 who are said to be prime prosecution case.
17. We have found that the learned trial court had reproduced evidences of all prosecution witnesses in the judgment under challenge. We have also found that the learned trial court had properly reproduced evidences of those witnesses in the judgment under challenge and the same is, therefore, re-reproduced in the following manner :-
PW 1, Sri Uma Das father of the accused deposed on the day of the occurrence at about 8 am, a quarrel took place in the courtyard of his house between the accused and his daughter-in- law, Sabita Das who happened to be the wife of his second son, Sri Jayanta Das. At that time, the accused struck blow on the head CRL APPEAL NO. 119 OF 2011 6 of the deceased with an iron pipe for which she fell down on the ground. PW 1, on seeing the occurrence, raised alarm and the accused fled the scene. People from the nearby place came to the PO and took the victim to Dholpur Hospital wherefrom she was shifted to North Lakhimpur Hospital. However, the victim succumbed to the injuries on the same day. According to PW 1, the Jayanta Das and his 2nd son lived separately from him with their family closer to each other in a same compound sharing a common courtyard. On the same day, Jayanta Das lodged an FIR at Dholpur Police Outpost in connection with the alleged incident and surrendered before the Dholpur Police Outpost with the iron rod. Thereafter, police came to the place of occurrence along with the accused and seized the weapon of offence vide Ext. 1, seizure list and put his signature thereon which he proved as Ext. 1 (1). The statement of PW 1 was also recorded by a learned Magistrate which he (PW 1) proved as Ext. 2 by identifying his signatures as Ext. 2(1) and Ext. 2 (2) thereon.
PW 1 also deposed that the house which was occupied by the accused during the relevant time was let out to an employee of Telephone Exchange. He (PW 1) denied the suggestion that the accused did not allow him to occupy the house in question for which dispute arose between him and the accused. He denied the defence suggestion to the effect that his wife was serving him rice at the time when the incident took place. PW 1 stated that his wife in the paddy field at the time of the occurrence. PW 1 also denied the defence suggestion to the effect that at the time of occurrence, Sri Jayanta Das alongwith his wife, Sabita Das chased the accused with an axe on his hand to save himself for which the accused brandishing an iron pipe frightened the deceased and her husband which unfortunately landed on the head of the deceased causing injury to his wife.
Thus from the above testimony of PW 1, it appears that the defence utterly failed to trace out any material contradiction in the evidence of this witness with that of his earlier statements u/s 161 and 164 CrPC. On perusal of Ext. 2, statement of PW 1, it appears that he gave same version about the occurrence as deposed during trial. Thus, Ext. 2, the statement recorded u/s 164 CrPC is found to have lent sufficient assurance to the testimony of PW 1 given during trial. Though, it was suggested by the defence that PW 1 testified against the accused due to some serious differences with him, yet such suggestion without having any strong foundation cannot be accounted for to discredit the version of a father against his own son. Thus, whatever PW 1 deposed about the occurrence inspires confidence.
PW 2, Sri Jayanta Das, the younger brother of the accused, deposed that that the incident occurred on 17.08.2005 at about 8 am. According to him, at the time of the occurrence, while he was sitting on the verandah of his house, his wife Sabita Das went out to a nearby shop. At that time, the accused picked up a quarrel with her and while the quarrel was going on, the accused CRL APPEAL NO. 119 OF 2011 7 struck blow on the head of the wife of PW 2 with an iron pipe for which she fell down on the ground. On alarm being raised by the father of PW 2, the accused fled the PO. Sri Jayanta Das (PW 2) also started to cry and hearing his cry, nearby people came and took Sabita Das to Dholpur Hospital wherefrom he was shifted to North Lakhimpur Civil Hospital. But on the same day, the victim expired. Later on, PW 2 lodged an FIR (Ext. 3) which he proved by identifying his signature, Ext. 3(1) thereon.
In cross, PW 2 deposed that the house which is occupied by the accused at the time of occurrence was previously rented to a person of Telephone Exchange. PW 2 denied the suggestion to the effect that the accused was not allowed to occupy the said house by his father, PW 1 for which dispute arose between them and the accused. PW 2 denied the defence suggestion to the effect that on the previous day of the occurrence, he went to the house of the accused to assault him and on the day of the occurrence also, he and his wife chased the accused with an axe on his hand. PW 2 also denied the defence suggestion that Sabita badly abused the accused, and also to save himself the accused brandished an iron pipe, which hit on the head of Sabita, and as a result, she sustained injury.
PW 3 Sri Kesharam Bania, simply deposed that he came to know from others that the accused killed his brother's wife. He confirmed the seizure of the iron rod used in the commission of offence vide Ext. 1. Ext. 1 is the seizure list, which he proved by identifying his signature Ext. 3(1) thereon.
In his evidence, PW 4, Sri Ramen Das stated that on the day of the incident at about 7 am, while he was going towards Dholpur centre from home with his 'Thela' (Handcart) by crossing the house of the accused, he saw Sabita Das in the courtyard holding her baby on her lap. At that time, the accused hit Sabita Das by an iron pipe on head, as a result of which she fell down on the ground with her baby. Simultaneously the accused ran away towards Dholpur centre. He also deposed that seeing the occurrence, Sri Jayanta Das started shouting. Then, he along with local people took the injured Sabita to hospital in a thela. Later on he came to know that Sabita was sent to North Lakhimpur Civil Hospital by the doctors and she died there. He also stated that he gave statement before learned Judicial Magistrate about the occurrence and he had narrated the same version as deposed during trial.
In cross examination of this witness, the defence failed to trace out any material contradiction to discredit his version of the occurrence, though it was suggested to this witness that as he used to take alcohol regularly with Jayanta, the husband of the deceased, he deposed falsely against the accused. Thus, what has been deposed by PW 4 about the occurrence also lent corroboration to the version of PW 1 and PW 2.
CRL APPEAL NO. 119 OF 2011 8 PW 6, Sri Gautam Chandra Kumar deposed that on 20.12.2007, while he was in-charge of Dholpur Police Out Post, he took up further investigation of Bihpuria PS Case No. 186/05 u/s 302 IPC. On perusal of the case diary, he came to know that his predecessor had already visited the place of occurrence, recorded the statements of witnesses and also made arrest of accused. He came to know that in this connection, North Lakhimpur PS UD Case No. 47/05 dated 17.08.2005 was registered and investigation was done. Accordingly, he made attempt to collect the Subsidiary Case Diary, but failed to collect the same as the Investigating Officer of that UD Case expired in the meantime, but somehow he could manage to collect the Final Report along with North Lakhimpur PS GD Entry No. 748/05 dated 17.08.2005 in connection with North Lakhimpur PS UD Case No. 47/05, and he also collected the copy of the post mortem report of the deceased, Sabita Das. After completion of investigation finding sufficient materials to put the accused on trial for commission of offence u/s 302 IPC, he submitted the charge-sheet against accused, Sri Reba Das u/s 302 IPC vide Ext. 5, charge sheet, which he proved by identifying his signature, Ext. 5(1).
In his cross-examination, PW 6 deposed that though he did not submit the FIR of the UD Case, he had submitted the certified copy of North Lakhimpur PS GE Entry No. 748/2005 (Ext. 6), and certified copy of the Final Report of North Lakhmpur PS UD Case No. 748/2005, in connection with the instant case.
On perusal of Ext. 6, the certified copy of North Lakhimpur PS GD Entry No. 748/2005 dtd. 17/08/2005, it appears that Dr. K. Hazarika, in-charge of 'Happy Nursing Home', North Lakhipur, lodged an FIR on 17.08.2005 alleging that therein that on the same day at about 11 am, injured, Sabita Das was admitted in the hospital and at about 12 noon, she died. On the basis of said information, North Lakhimpur PS UD Case No. 47/2005 has been registered and the investigation was entrusted to SI Kushal Konwar. Further, on perusal of Ext. 7, the certified copy of the Final Report of UD Case No. 47/2005, it appears that the post moretem examination on the dead body of the deceased Sabita Das was done at North Lakhimpur Civil Hospital on 18.08.2005, and in the said Post Mortem Report, the Doctor opined that the cause of death of the deceased was due to shock and haemorrhage as a result of the injury sustained by him on his head. It is also mentioned in the final report that in this connection, a case u/s 302 IPC was registered at Bihpuria Police Station and the IO took necessary steps to send the post mortem report of the deceased Sabita Das to Bihpuria PS so as to form part of the records of that murder case.
PW 7, Nitul Das SI of Police is the Investigating Officer of the case under consideration. According to him, on 17.08.2005, while he was Officer-In-Charge of Dholpur Police Outpost, the informant, CRL APPEAL NO. 119 OF 2011 9 Sri Jayanta Das lodged an FIR alleging therein that his elder brother, Sri Reba Das had assaulted his brother with an iron pipe, and as a result, she sustained injuries on the head, and on the same day, she succumbed to her injuries. Accordingly, he made GD Entry no. 296 dated 17.08.2005, and forwarded the same to the OC, Bihpuria OS to register a case and he himself took up investigation. During investigation, he took custody of the accused and thereafter proceeded to the place of occurrence i.e. the house of the informant at 'Bhojkhowachuk' along with accused and the informant. He then made seizure of the iron pipe from the possession of the accused at the Police Outpost in presence of witnesses. He identified M. Ext. 'Ka' to be the iron pipe seized vide Ext. 1, seizure memo which he proved by identifying his signature, Ext. 1(3) thereon. He also stated that in course of investigation, he prepared sketch map of the place of occurrence and recorded the statement of the witnesses.
PW 7 further deposed that during the course of investigation he produced the witnesses namely, Sri Uma Das (PW
1) and Sri Ramen Das (PW 4) before the learned CJM, Lakhimpur with a prayer for recording their statements u/s 164 CrPC. Later on he (PW 7) came to know that the OC, North Lakhimpur Police Station made necessary arrangement for conducting inquest on the dead body of the deceased and thereafter sent her corpse to North Lakhimpur Civil Hospital for post mortem examination.
In cross PW 7, deposed that PW 4 Ramen Das stated before him that accused, Sri Reba Das and the deceased had altercation with each other, but he did not state before him that Sri Jayanta Das and Sri Uma Das were crying and rather they created noise.
PW 8, Sri Chowpinta Mounglang by his deposition proves that on the eventful day as per order of the learned CJM, Lakhimpur witnesses, namely, Sri Uma Das and Sri Ramen Das were produced before Sri A.K. Basfor, learned Judicial Magistrate 2nd Class, North Lakhimpur, to record their statements u/s 164 CrPC in connection with Bihpuria PS Case No. 186/2005 corresponding to GR Case No. 920/2005 u/s 302 IPC by police. Accordingly, the learned Magistrate recorded the statements of witnesses, Uma Das and Sri Ramen Das. According to him, on 23.08.2005, he was serving as Bench Assistant of the then Judicial Magistrate 2nd Class, North Lakhimpur, Sri A.K. Basfor. He proved Ext. 2 to be the statement of Sri Uma Das by identifying the signature of Sri Uma Das vide Ext. 2 (2) and signature of Sri A.K. Basfore, learned Magistrate 2nd Class, North Lakhimpur vide Ext. 2(3). He also proved Ext. 9 to be the statement of Sri Ramen Das This witness was not cross-examined by the defence.
18. We have considered the evidence on record, having regard to the submissions, advanced by the learned counsel for the parties. A perusal of the CRL APPEAL NO. 119 OF 2011 10 evidence of PWs, more particularly PW 1 and PW 2 reveals that on the night in question, there was a quarrel between the deceased and the accused person over some domestic matters. There is also evidence on record to show that during the course of quarrel, the accused hit his sister in law with an iron rod on her head.
19. The evidence on record further reveals that the deceased and the accused used to quarrel quite off and on over some domestic matters and the quarrel which took place on the morning in question was one of such incidents. There is also evidence to show that such quarrel raised the rage and anger to a huge height resulting in the unfortunate incident.
20. That there was a quarrel between the parties which turned too violent has also been corroborated by the evidence of DW 1 ( Sri Reba Das) and DW 2 (Smt. Anita Das) who happens to be mother of the accused person. Quite importantly, there is no material on record to show that the accused did the wrong with premeditation. Rather all materials on record show that incident in question occurred in a sudden quarrel in a heat of passion.
21. Above being position, it needs to be concluded that the accused had committed the offence which can be treated as culpable homicide not amounting to murder. Being so, in our considered opinion, the offence committed by the accused comes within the purview of Exception IV of Section 300 IPC.
22. Having regard to the nature of injury, the weapon used in committing the crime in question and the body parts involved, we are of the opinion, that the accused had the intention to kill the deceased. Being so, in our opinion, the accused is liable to be convicted u/s 304 Part I IPC and not under Section 302 IPC.
23. Accordingly, the accused stands convicted of offence u/s 304 Part -I IPC and therefore, his conviction u/s 302 IPC consequently stands altered to a conviction under Section 304 Part -I IPC.
CRL APPEAL NO. 119 OF 2011 11
24. On considering the submissions, advanced by the learned counsel for the parties, having regard to the materials on record, the accused is sentenced to undergo R.I. for 9 (nine) years and to pay a fine of Rs. 2,000/- (Rupees Two Thousand), in default, R.I. for another 3 (Three) months for offence u/s 304 Part
-I IPC.
25. Resultantly, the appeal is partly allowed. The period which the accused had already undergone is to be set off against the period of imprisonment.
26. The Registry will issue modified Jail warrant as indicated above.
27. Return the LCR.
JUDGE JUDGE arup CRL APPEAL NO. 119 OF 2011