Gauhati High Court
Sonaram Hasda vs The State Of Assam on 1 November, 2019
Equivalent citations: AIRONLINE 2019 GAU 844
Author: Manish Choudhury
Bench: Manish Choudhury
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GAHC010241822017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J) 91/2017
1:SONARAM HASDA
VERSUS
1:THE STATE OF ASSAM
Advocate for the Petitioner : MR.I H SAIKIA
Advocate for the Respondent :
BEFORE
HONOURABLE MR. JUSTICE MIR ALFAZ ALI
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT & ORDER (ORAL)
Date : 01-11-2019 (Mir Alfaz Ali, J) Heard Mr. I.H. Laskar, learned Amicus Curiae and Mr. M. Phukan, learned Additional Public Prosecutor.
2. This appeal is directed against the judgment and order passed by the learned Sessions Judge, Udalguri in Sessions Case No. 31(U)/2015, whereby the learned Sessions Judge convicted the appellant under Section 302 IPC and sentenced him to imprisonment for life and fine of Rs. 5,000/- with default stipulation.
3. The prosecution case is that on 04.02.2015 at about 10 o'clock at night, the appellant had Page No.# 2/5 beaten his wife causing severe injuries which led to her death. An FIR was lodged by Bijoy Baskey (P.W.5), on the basis of which police registered Udalguri P.S. Case No. 32/2015 and commenced investigation. In course of investigation, police recorded the statement of the witnesses, got the inquest of the body done by the Executive Magistrate (P.W.11) and Post Mortem Examination of the victim was conducted by Dr. Bhadra Kt. Sarma (P.W.1). On conclusion of investigation, charge sheet was laid against the present appellant under Section 302 I.P.C.
4. In course of trial, learned Sessions Judge framed charge under Section 302 I.P.C. against the accused-appellant, to which the accused-appellant pleaded not guilty. In order to bring home the charge the prosecution examined 11 (Eleven) witnesses. The Court also examined 2 (two) witnesses being C.W.1 and C.W.2.
5. P.W.1, Dr. Bhadra Kt. Sarma, who conducted the Post Mortem examination, found the following injuries :
"EXTRANAL APPEARANCE:-
Injury :-
Multiple imprint abrasion of variable sized around- (1) right leg, (2) above socrum, (3) left iliac region, (4) at left hand, and (5) right temporal region."
6. In the opinion of doctor, the cause of death was due to intracranial haemorrhage and homicidal in nature and the injuries were ante-mortem. During cross-examination of the doctor, it was elicited that the injury found on the scalp of the victim could be caused by sudden fall on the hard substance.
7. P.W.3, Tek Bahadur; P.W.4, Smti Lakhi Hasda; P.W.5, Bijoy Baskey and P.W.6, Kuria Baske testified that having come to know about the occurrence, they came to the house of the victim and found the victim dead. The two children of the victim and the accused, who have been examined as C.W.1 and C.W.2 told them, that the accused-appellant had beaten the victim causing injuries on the night of the occurrence.
8. The testimonies of P.W.2, Birendra Nath Brahma; P.W.7, Smti Benu Devi and P.W.10, Maniram Basumatary appear to be hearsay so far as the occurrence is concerned as they came later on hearing about the occurrence. However, P.W.2 deposed that police seized a bamboo stick vide Exhibit-2 on being shown by the accused. P.W.8, Smti Maina Murmu was declared hostile. P.W.9, Durga Murmu stated about confession made by the accused before the police.
9. C.W.1, the son of the victim, who was about 11 years of age at the time of recording evidence, Page No.# 3/5 deposed, that on the night of occurrence his father (the appellant) consumed alcohol and the victim was preparing food. After consuming alcohol both by the accused-appellant and the victim, the accused-appellant assaulted the victim with a lathi. During cross-examination of this witness, it was elicited that after consuming alcohol, the appellant and the victim picked up quarrel.
10. C.W.2 also deposed that her father assaulted her mother with a lathi. She further stated in cross-examination that the victim did not consume alcohol at the time of occurrence. Before recording evidence, the competency of both the child witnesses was tested by the learned Sessions Judge by voir dair test and having satisfied about the competency of C.W.1 and C.W.2, the learned Sessions Judge recorded their statement. The testimonies of both the C.W.1 and C.W.2 are found to be consistent and natural and therefore, we see no reason to discard the evidence of C.W.1 and C.W.2 only because they are child witnesses.
11. P.W.3, P.W.4, P.W.5, and P.W.6 deposed that immediately after the occurrence, when they arrived at the house of the victim, both the C.W.1 and C.W.2 reported that the accused-appellant assaulted the victim on the last night. Therefore, the oral testimony of C.W.1 and C.W.2 gets corroboration from the oral testimony of P.W.3, P.W.4, P.W.5, and P.W.6. The testimonies of C.W.1 and C.W.2 are further corroborated by the medical evidence, both as to the nature of injury as well as the weapon used. The learned trial Court primarily relying on the oral testimony of these two witnesses as well as the testimonies of P.W.3, P.W.4, P.W.5, and P.W.6 and the extra judicial confession of the accused-appellant recorded the conviction of the appellant.
12. On our scrutiny of the evidence, we find that the alleged extra judicial confession made by the appellant was under threat and coercion, inasmuch as, evidently, the so-called confession was made because of the force applied by people who gathered after the occurrence. Evidently, the victim was kept tied and he was also assaulted by the people assembled to extract the confession. The sanctity of any confession, be it judicial or extra judicial, is the voluntariness and truthfulness. The confession which is not voluntary cannot be acted upon. Though the learned trial Court in Paragraph 33 of the judgment made an observation that confession was voluntary and there was no coercion, such observation does not appear to be based on evidence, as we find in the evidence that at least 2 witnesses had stated that the appellant was beaten by the people who assembled there. Therefore, we reject the extra judicial confession of the appellant. Even dehors the so-called extra judicial confession relied by the learned trial Court, the oral evidence of C.W.1 and C.W.2 coupled with the oral testimonies of P.W.3, P.W.4, P.W.5, and P.W.6, whom the C.W.1 and C.W.2 reported about the occurrence immediately on the next morning and also the medical evidence establishes beyond all Page No.# 4/5 reasonable doubt that the death of the victim was caused due to injury inflicted by the accused with a lathi. However, what we further notice is that the victim was the wife of the appellant and till the occurrence started, the victim was preparing food and everything was normal. Evidently, both the victim and the appellant consumed liquor and thereafter, quarrel ensued between them and in course of such quarrel the victim was assaulted by the appellant, her husband, with lathi (stick). The evidence of P.W.12 and P.W.2 transpires that it was a bamboo stick seized vide Exhibit 2 (seizure list) by which, the victim was assaulted.
13. Thus, evidently, before the occurrence everything was all right as the victim was preparing food and in the meantime, altercation ensued between the husband and the wife and in course of such quarrel, the victim was assaulted by the appellant causing injuries. Therefore, the facts and circumstances under which the appellant assaulted the victim, the weapon used and the nature of injury caused to the victim, demonstrates that there was no premeditation or intention to cause death by the appellant; rather, in course of sudden quarrel, the appellant assaulted the victim being his wife at the heat of passion, and as such, in our considered view, the accused-appellant could not have been convicted under Section 302 I.P.C. for committing murder. Because the intention to cause death or intention to cause such injury as is like to cause death were absent. Therefore, we set aside the conviction of the accused-appellant under Section 302 I.P.C., instead, convict him under Section 304 Part-II I.P.C. Having modified the conviction from Section 302 to Section 304 Part II, I.P.C, we also reduce the sentence to rigorous imprisonment for 5 (five) years. We, however, do not interfere with the sentence of fine awarded by the learned trial Court and the default sentence.
14. We find in the impugned judgment, that the learned trial Court has not considered the issue of compensation. The matter may be placed before the District Legal Service Authority which shall examine the matter as to the necessity of awarding any compensation under the Victim Compensation Scheme and award suitable compensation, if considered necessary.
15. Accordingly, the appeal stands partly allowed.
16. Appreciating the assistance rendered by Mr. I. H. Laskar, learned Amicus Curiae, we hereby provide that he will be entitled to professional fee of Rs.7500/-. Upon production of a copy of this judgment, Guwahati High Court Legal Services Committee shall pay the fee to Mr. Laskar.
17. Send down the LCR along with a copy of this judgment.
JUDGE JUDGE
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Comparing Assistant