Gauhati High Court
Kameswar Basumatary vs The State Of Assam on 20 February, 2020
Equivalent citations: AIRONLINE 2020 GAU 460
Author: Suman Shyam
Bench: Suman Shyam, Hitesh Kumar Sarma
Page No.# 1/12
GAHC010231712017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J) 22/2017
1:KAMESWAR BASUMATARY
VERSUS
1:THE STATE OF ASSAM
2:SMTI. GITA DAIMARI
W/O-LT. TOMJY DAIMARI
VILL-DHARAMPUR KACHAMARI
P.S.-MERAPANI
DIST.-GOLAGHAT
ASSAM
Advocate for the Petitioner : AMICUS CURIAE
Advocate for the Respondent :
Linked Case : CRL.A(J) 23/2017
1:SMT. SUMU BASUMATARY
VERSUS
1:THE STATE OF ASSAM
Page No.# 2/12
2:SMTI. GITA DAIMARI
W/O-LT. TOMJY DAIMARI
VILL-DHARAMPUR KACHAMARI
P.S.-MERAPANI
DIST.-GOLAGHAT
ASSAM.
Advocate for the Petitioner : AMICUS CURIAE
Advocate for the Respondent : PP
ASSAM
BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM
HONOURABLE MR. JUSTICE HITESH KUMAR SARMA
JUDGEMENT AND ORDER (ORAL)
Date of hearing and judgement : 20/02/2020.
Suman Shyam, J
1. Both these criminal appeals from jail are directed against the judgement and order dated 13/02/2017 passed by the learned Additional Sessions Judge, Golaghat in sessions case No. 2/2016, convicting the appellants under Section 302/34 of the Indian Penal Code (IPC) and sentencing them to undergo rigorous imprisonment for life and also to pay fine of Rs. 1000/- each and in default, to undergo simple imprisonment for two months each.
2. We have heard Mr. L. Gogoi, learned Amicus Curiae, appearing for the appellant in Crl. Appl (J) 22/2017 and Mr. T.R. Sarma, learned Amicus Curiae, appearing for the appellant in Crl. A. (J) 23/2017. Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam, has represented the State in both these appeals.
3. The appellants in both these appeals are related to each other as husband and wife. The prosecution case, as unfolded during the course of trial, is that on 22/08/2015, at about 3 p.m., the accused persons had assaulted the deceased on his head with a stick as a result of which, the victim had sustained grievous injuries. The victim was then taken to the Golaghat Civil Hospital and from there, to the Jorhat Medical College and Hospital where the doctors had referred him to the Guwahati Medical College and Hospital (GMCH) for better Page No.# 3/12 treatment. However, due to financial constraints, the victim could not be taken to the GMCH but was brought back home. Later on, he had succumbed to his injuries.
4. On 24/08/2015, Smt. Gita Doimari i.e. the wife of the victim had lodged an ejahar before the Officer-in-Charge, Merapani Police Station, informing that the accused persons had assaulted her husband on the head and other parts of the body by means of "bamboo lathi"
with the intention of killing him. Upon receipt of the FIR, Merapani Police Station Case No. 247/2015 was registered under Section 325/307/34 of the IPC. However, after the death of the victim, section 302 of the IPC was added. The matter was taken up for investigation and upon completion of the investigation, the I.O. had submitted charge sheet against both the accused persons under Section 302/34 of IPC. Since, the accused persons had pleaded innocence, the matter went up for trial.
5. The prosecution side had examined as many as 9 (nine) witnesses which included 3 (three) eye witnesses viz. of PWs 1, 2 and 3.
6. PW-1 Smt. Anjana Rabha is the person in whose house the occurrence took place. PW-1 has deposed before the Court that she knew the informant and the deceased and that the incident took place at around 2 p.m. about 9(nine) months' back. At the time of the incident, accused Smt. Sumi Basumatary came to their tube well to take bath. At that time, the deceased had also come to that place and enquired whether Sumi Basumatary had finished her bath, who had replied in the negative. After a short while, the deceased had again asked the accused Sumi Basumatary whether she had completed her bath and then he had asked as to whether a woman can take bath in presence of her "Barjana" (husband's elder brother). On that, the accused Sumi had abused the victim very badly. The deceased got angry and told something to the accused Sumi Basumatary and then she went home and returned along with the other accused i.e. her husband. Thereafter, both of them started hitting the deceased on the back side of his head by means of a "bamboo lathi". According to PW-1, the accused Kameswar Basumatary had hit the deceased with a "lathi" and accused Sumi Basumatary had hit him on his back with a "plank of wood". The witness has also stated that although she had tried to resist the accused persons but she had failed in doing so. The deceased fell down on the ground as a result of the assault made on him and she had seen blood oozing out from the head, mouth and ears of the victim. Thereafter, the villagers had arrived and had taken the injured victim to Merapani Hospital where-after, he was again taken Page No.# 4/12 to Golaghat Civil Hospital. The victim was then taken to Jorhat Medical College & Hospital and admitted in the hospital that very night. He had survived for five days at home and passed away. During her cross examination, PW-1 had stated that the tube well was just attached to the plinth of her house and the house of the accused was situated about 10 'nal' (1 nal = 12 feet) away. PW-1 had also stated that the accused "duo" used water from her tube well for drinking as well as for taking bath and she was inside the house when the accused Sumi Basumatary was taking her bath. During her cross examination, the witness had denied the suggestion made to the effect that while Sumi Basumatary was taking bath, the deceased had made indecent proposals to her and caught hold of her so as to commit bad act. PW-1 has also denied the suggestion made to the effect that the accused Kameswar was trying to save his wife from the clutches of the deceased and that is why the deceased had sustained injuries.
7. PW-2 Smt. Gita Daimari is the wife of the deceased. She is the informant in this case. She is also an eye witness to the occurrence. In her deposition, PW-2 has stated that on the day of the incident, her husband went to the tube well of her maternal uncle's house to take bath and found accused Sumi Basumatary was taking bath in the tube well. Then her husband had asked Sumi whether she had finished her bath. After a short while, her husband had again asked Sumi whether she had completed her bath or not and on that, the later got angry and started abusing her husband. At that time, the accused Sumi went to her house and returned to the place of occurrence being accompanied by her husband Kameswar Basumatary. PW-2 has also deposed that at first, accused Kameswar Basumatary had slapped her husband and after that, he had hit him on the backside of the head with a "bamboo lathi". PW-2 has also stated that the accused Sumi had assaulted her husband on his back with a "wooden baten" and her husband fell down on the ground owing to the assault made on him. Blood was oozing out from his head and ear. After that, the accused persons fled away and the injured victim was taken to Merapani Civil Hospital for treatment, whereafter, he was taken to the Golaghat Civil Hospital and then to the Jorhat Medical College. However, from the Jorhat Medical College and Hospital, the victim had to be brought back home after 4-5 days and then he passed away. PW-2 has also confirmed the fact that she had lodged an ejahar with the Merapani Police Station. During her cross examination, PW-2 has reiterated the fact that she has seen the accused Sumi hitting her husband with a "wood baten". The Page No.# 5/12 testimony of this witness could not be shaken during her cross examiantion.
8. PW-3 Smt. Golapi Doimari is a neighbour of the accused and the deceased and is also an eye witness to the occurrence. PW-3 has stated that the incident took place at around 2 p.m. and at that time, she was at home. Hearing a commotion, she came out of the house, went hear the tube well and saw that the accused duo had assaulted the deceased with their hands as well as with a "plank of wood". PW-3 has stated that the accused Sumi had assaulted the deceased with a "wooden plank" while the other accused person had assaulted him with his hands. Although, Anjana Rabha (PW-1) had resisted the accused duo, they went on assaulting him. They somehow managed to pull the victim inside the house and kept him there but after sometime, the victim came out to the verandah when the accused Kameswar Basumatary had assaulted him on his head with a "bamboo lathi" as a result of which, he lost his senses. PW-3 had also stated that at first, a quarrel broke out between Sumi Basumatary and the deceased over the issue of taking bath. Later on, the Police came to the place of occurrence and seized the piece of bamboo and the wooden plank used by the accused for assaulting the deceased from Sambaru Rabha (PW-6) i.e. the husband of PW-1 vide Ext. 1 seizure list. PW-3 has also deposed that material Ext.1 is the piece of "bamboo" and material Ext. 2 is the "wooden plank". Nothing adverse could be brought out by the defence during the cross examination of this witness.
9. PW-4 Sri Jagat Doimari is the younger brother of the deceased and he has deposed before the Court that on the day of the incident, his maternal uncle Sambaru Rabha had informed him about the quarrel that had broken out between the accused duo and the deceased. On receiving the information, he went to the house of the deceased and saw him in an injured state. He had seen blood oozing out from the ear of the deceased. There-after, the injured victim was taken to Merapani Hospital on a "Push Cart" where after, he was taken to K.K. Civil Hospital and then to the Jorhat Medical College and Hospital. PW-4 has stated that the victim had survived for 3-4 days at home and then passed away. This witness has denied the suggestion that the deceased had died for want of proper medical treatment.
10. PW-5 Sri Babul Doimari is another witness who had come to the place of occurrence after the incident and had seen the injured victim. Therefore, the testimony of this witness is not of much significance in this case.
11. Sri Sambaru Rabha, who is the husband of Anjana Rabha (PW-1), was examined as Page No.# 6/12 PW-6. This witness has deposed that on the day of the incident, he was not at home but on receipt of information over phone from his wife Anjana Rabha that a "marpit" (fight) had errupted between the accused persons and the victim and that he should come home immediately, PW-6 had reached home and saw the victim lying on the verandah of his house. After that, the younger brother of the victim Sri Jagat Doimari took him to Merapani Civil Hospital and after that, he was taken to Golaghat Civil Hospital and then to Jorhat Medical College and Hospital. PW-6 had stated that the victim could not be taken to Guwahati as per medical advice, for want of money. From the testimony of this witness, it is apparent that he had reached home i.e. the place of occurrence after the incident. It is also apparent that the incident took place in the house of this witness.
12. Sri Dilip Kumar Pator, PW-7, is the I.O. who had submitted charge sheet in this case. This witness had proved the charge sheet Ext. 3 but he was not the I.O. who had conducted investigation in this case.
13. PW- 8 Dr. Robin Tamuly, had conducted post mortem examination on the dead body of the deceased. According to the doctor (PW-8), cause of death was due to shock and haemorrhage leading to "Comma" due to the head injury sustained by the deceased. The doctor has opined that all the injuries were ante-mortem in nature.
14. The post mortem report, Ext. 2 mentions about lacerated wound over left side of the head on the temporal area of scalp measuring about 4 x 2 cm in size and one cut section, haematoma over temporal lobe of brain (left) compassing to brain tissue.
15. PW-9 Sri Madan Chandra Kalita is the I.O. who had conducted the investigation in connection with Merapani PS case No. 247/2015 but he got transferred before submission of the charge sheet, as a result of which, the charge sheet in this case was submitted by PW-7. PW-9 had deposed that he had seized the piece of bamboo measuring two cubits and four fingers in length which was used for assaulting the deceased by seizure list Ext. 1 and he had also seized the piece of wood measuring 5½ inches and 22.5 in length through Ext. 1. PW-9 had not only proved Ext. 1 but had also confirmed that material Ext. 1 and material Ext. 2 were the seized materials. PW-9 had also stated that the injured person was admitted at the Hospital before the ejahar as lodged and after the death, he got the inquest held on the dead body by a Magistrate and sent the body for post mortem examination.
16. From the bulk of evidence brought on record, it is established beyond doubt that Page No.# 7/12 the deceased was attacked by the accused persons by "bamboo stick" and "wooden plank"
inflicting grievous injuries on his head, ultimately leading to his death. The fact that the accused duo had assaulted the deceased is established from the evidence of the eye witness account of PWs 1, 2 and 3, who have corroborated the version given by one another. From the testimony of these witnesses, it has come out very clearly that on the day of the incident, a quarrel took place between the deceased and the accused Sumi Basumatary while she was taking bath. It also appears from the evidence of PWs 1 and 3 that at that time, the deceased had made certain comments concerning the accused Sumi Basumatary, which had invited her ire and she had also used abusive language to reply back to the deceased. However, not being satisfied with the same, the accused Sumi Basumatary had rushed back home and thereafter, came back to the place of occurrence being accompanied by her husband. Having reached the place, the accused Sumi Basumatary and her husband Kameswar Basumatary had both assaulted the deceased.
17. As noted above, the prosecution case is based on direct evidence tendered by the three eye witnesses i.e. PWs 1, 2 and 3, whose testimony could not be impeached during their cross examination. PW-1 has not only stated that she has seen both the accused persons making assault on the head of the deceased but has also given vivid description of the role played by both the accused persons by stating that the accused Kameswar Basumatary had hit the deceased with a "lathi" while accused Sumi Basumatary had hit him on his back with a "wooden plank". This witness had also stated that the deceased fell down on the ground as a result of assault made on him and she had seen blood oozing out from his head, mouth and ears. The version of this witness finds corroboration from the statement of PW-3 who has also seen the accused Kameswar Basumatary hit the deceased on his back with a "bamboo lathi", as a result of which, the victim had fallen down on the ground. This witness has also stated that she had seen accused Sumi Basumatary assaulted the deceased with a "wooden plank". PW-2 has also deposed to similar affect by stating that accused Kameswar Basumatary had hit on the head of her husband with a "bamboo lathi" and then accused Sumi had assaulted him on his back with "wooden baten".
18. A careful scrutiny of the evidence adduced by these witnesses leaves no room for doubt that the PWs 1, 2 and 3 are the eye witnesses to the occurrence and they had seen both the accused persons causing assault on the head of the deceased with a "bamboo" and Page No.# 8/12 "wooden plank". The opinion of the doctor (PW-8) is duly supported by the post mortem report Ext. 2. PW-8 has stated that the injuries sustained by the deceased are ante-mortem in nature and the cause of death is due to shock and haemmorage leading to "Comma" due to head injuries sustained by the deceased. Therefore, it is established on the basis of cogent evidence brought on record that the deceased had died a homicidal death. The medical evidence brought on record reinforces the eye witnesses account.
19. The learned counsel for the appellants have made an attempt to convince this Court that the death of the deceased had occurred due to lack of proper care and medical treatment. However, in our veiw such submission is wholly un-acceptable in view of the quality and quantity of evidence available on record, which clearly goes to show that the deceased had suffered a homicidal death. Therefore, we are of the considered opinion that the prosecution has succeeded in establishing beyond any reasonable doubt that it is none other than the accused duo, who had assaulted the deceased causing fatal injuries on his head which had ultimately resulted into his death.
20. This brings us to the next issue and the alternative argument addressed by the learned counsel for the appellants, who have submitted that even assuming that the accused had killed the deceased in this case, even then, evidence available on record suggests that the incident was preceded by an altercation between the deceased and accused Sumi Basumatary, pertaining to some indecent comments made by the deceased. Mr. Sarma, learned counsel for the appellant in Crl. A. (J) 23/2017 submits that there is absence of pre- meditation on the part of both the accused persons in this case and there was no intention to kill. According to Mr. Sarma, the indecent comment made by the deceased to accused Sumi had enraged the accused persons and out of such grave and sudden provocation and on being deprived of their power of self control, the accused persons had assaulted the deceased. Under the circumstances, the learned counsel for the appellants have argued that this case would fall under the exceptions 1 & 4 of Section 300 of the IPC and would, therefore, qualify for conversion of the conviction and the sentence awarded to the accused to one under Section 304 Part-II of the IPC. Mr. L. Gogoi, learned counsel for the appellant in Crl. Appeal(J) 22/2017 has also placed reliance on two decisions of the Hon'ble Supreme Court rendered in the case of State of Madhya Pradesh Vs. Shivshakar reported in (2014) 10 SCC 366 and in the case of Pratap Singh alias Pikki Vs. State of Page No.# 9/12 Uttarakhand reported in (2019) 7 SCC 424 in support of his aforesaid plea.
21. Ms. B. Bhuyan, learned APP, Assam has, however, strongly resisted such arguments made by the appellants' counsel by submitting that the assault by the accused did not take place immediately after the exchange of words with the deceased but there was a substantial "cool off" time which is evident from the fact that the accused had come back to her home and returned to the place of occurrence along with her husband. Therefore, according to Ms. Bhuyan, there was no provocation grave enough in this case for the accused persons to assault the deceased in this manner.
22. It has come out from the testimony of the eye witnesses PWs 1, 2 and 3 that the incident had occurred when accused Sumi Basumatary was taking her bath in the tube well situated in the house of the PW-1. At that point of time, the deceased had reached that place and was waiting to take bath after accused Sumi had finished. Since the accused was taking long to complete her bath, the deceased had made an enquiry which led to exchange of unpleasant words between the accused and the deceased. It further appears from the testimony of PW-2 that before going back to her house, accused Sumi Basumatary had hurled abuses to the deceased. Although, it is not clear as to what was the nature of the conversation between the accused and the deceased, yet, from the evidence available on record, it is apparent that something was said by the deceased to the accused Sumi Basumatary which had caused annoyance to her. Such comment made by the accused, in all probability, was perceived by accused Sumi to have been touching upon her modesty. It appears that having heard some comments from the deceased, the accused Sumi Basumatary lost her mind and went back to her house only to return with her husband so as to protest against the conduct of the accused.
23. Evidence on record also clearly indicates that while accused was taking bath under the tube well, the deceased, who is a male person, was standing there and watching the same. Therefore, we find sufficient evidence on record to infer that the deceased had acted in a manner which had outraged the sense of self respect and modesty of the accused, thereby triggering off passion in her mind so as to avenge her insult.
24. It has come out from the testimony of the prosecution witness that the house of the accused persons was situated about 120 ft. Away from the place of occurrence. Evidence on record also suggest that soon after the altercation, accused Sumi had returned to her home Page No.# 10/12 and came back to the place of occurrence immediately thereafter with her husband. Her return to the place of occurrence took place within a very short period of time which may not be sufficient so as to diffuse the anger of the accused. Such being the situation, we are inclined to hold that the accused Sumi had acted under grave and sudden provocation meted out by the deceased.
25. It has also come out from the evidence of PW-2 that the husband of the co-accused Sumi Basumatary had initially slapped the deceased and he had hit the deceased on his head with a "bamboo lathi" later on. There is nothing on record to indicate that the accused persons had come from their home armed with the "bamboo lathi" or the "wooden plank". Rather, it appears that the accused duo had picked up the "bamboo lathi" and the "wooden plank" at the place of occurrence. If the intention of the accused was to kill the deceased, than in all probability, they would have come from their house armed with weapon with a view to attack the deceased. But the same is not the case here. From the above, we are inclined to hold that there was absence of pre-meditation on the part of the accused Kameswar Basumatary. If that be so, this case, in our view, would also come within the fold of Exception No. 4 of Section 300 of the IPC.
26. In the case of K.M. Nanavati Vs. State of Maharashtra reported in AIR 1962 SC 605 relied upon by Mr. T.R. Sarma, the Hon'ble Supreme Court had observed that no abstract standard of reasonableness can be laid down for application of the doctrine of "grave and sudden provocation" and what a reasonable man could do in certain circumstances would depend upon customs, manners, way of life, traditional values etc. Having observed as above, the Apex Court had laid down the test of grave and sudden provocation, which would be relevant for the Indian Law. For ready reference, para 85 of the said judgement is reproduced herein below :-
"85. The Indian law, relevant to the present enquiry, may be stated thus : (1) The test of "grave and sudden" provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the Page No.# 11/12 first Exception to S. 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation."
27. Having regard to the facts and circumstances of the case, we find that both the accused and the deceased hail from the same village, they belong to similar economic condition and are of the same cultural, emotional social background. If a woman while taking bath feels insulted by a comment made by a male member of the locality, it would be reasonable to presume that such comment would invite the ire of the person concerned. In such circumstances, it would also be reasonable to presume that the husband of the woman would also be impacted emotionally by such conduct of a male person pertaining to modesty of his wife sufficiently provoking him to respond. As such, by applying the test laid down by the Hon'ble Supreme Court in the case of K.K. Nanavati (Supra), we are of the view that both the accused persons in this case did not have any intention to kill the deceased but had assaulted him having lost the power of self control due to the grave and sudden provocation triggered by the conduct of the deceased.
28. We, therefore, hold that the present is a case which would come within the purview of Exception 1 and 4 of Section 300 of the IPC. We accordingly covert the conviction of both the appellants from Section 302 IPC to one under Section 304 Part-II of the IPC.
29. It is evident from the materials available on record that both the appellants are in jail since the date of the judgement delivered by the trial Court and they have 3 (three) minor children, the eldest of whom, was seven years old at the time of occurrence. It is, therefore, apparent that the three minor children of the petitioners are presently growing up without the care and guidance of both their parents. Taking note of the facts and circumstances of the case in its entirety, we award the sentence of 5 (five) years rigorous imprisonment to each of the accused. The fine imposed by the learned trial Court shall remain undisturbed. The period of detention undergone by the accused persons be set off against the sentence of Page No.# 12/12 imprisonment.
30. Before parting with the record, we would like to place on record our appreciation for the services rendered by Mr. L. Gogoi and Mr. T.R. Sarma, learned Amicus Curiae and direct the Registry to make available to them, just remuneration, as per the notified rate.
31. The appeals stand partly allowed.
Registry to send back the LCR.
JUDGE JUDGE Sukhamay Comparing Assistant