Gauhati High Court
Crl.A./330/2017 on 8 December, 2022
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh
Page No.# 1/23
GAHC010044432017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/76/2017
Smt. Heoti Mahan
......Appellant
-Versus-
1. The State of Assam,
represented by P.P. Assam.
2. Sri Dambaru Mohan Phukan,
Son of Late Chandra Nath Mohan,
Village: Rukang Gaon, P.S.: Moranhat,
District: Sivasagar, Assam.
...... Respondents.
For the Appellant : Mr. B. Prasad, Amicus Curiae.
[in CRL.A.(J) No.76/2017] Advocate
For the Respondent No.1 : Mr. D. Das, Additional Public Prosecutor,
Assam.
Advocate
Page No.# 2/23
Linked Case : Crl.A./330/2017
Smt. Heoti Mohan,
Wife of Sri Bhula Mohan,
Resident of Mordumoni Gaon,
P.O. & P.S.- Moranhat,
District- Sivsagar, Assam.
......Appellant
-Versus-
1. The State of Assam.
2. Sri Dambaru Mohan Phukan,
Son of Lt. Chandra Nath Mohan,
Resident of Rukang Gaon,
P.S. Moranhat, District- Sivasagar, Assam.
...... Respondents.
For the Appellant : Mr. P.J. Saikia.
[in Crl.A. 330/2017]
: Mr. B. Buragohain
Advocate
For the Respondent No.1 : Mr. D. Das,
Additional Public Prosecutor,
Assam.
Advocate
BEFORE
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MR. JUSTICE ARUN DEV CHOUDHURY
Date of Hearing and Judgment : 08.12.2022
Page No.# 3/23
JUDGMENT AND ORDER (ORAL)
[N. Kotiswar Singh, J.] Heard Mr. B. Prasad, learned Amicus Curiae in CRL.A.(J) No.76/2017 and Mr. D. Das, learned Additional Public Prosecutor, Assam.
2. These two appeals, namely, CRL.A.(J) No.76/2017 and Crl.A.330/2017 have been preferred by the same person, one Smt. Heoti Mahan, one through the jail authorities which is represented by the Amicus Curiae and another through the engaged counsel Mr. P.J. Saikia, who is not present today.
3. Since these appeals have been preferred against the same judgment passed by the learned Sessions Judge, Sivasagar on 30.05.2017 in Sessions Case No.164(S-C) of 2014 arising out of G.R. Case No.335/2014 and Mr. B. Prasad has been appointed by this Court as Amicus Curiae to represent the interest of the convict appellant Smt. Heoti Mahan, we are of the view that we can proceed with these matters even if earlier engaged counsel Mr. P.J. Saikia and Mr. B. Buragohain are not present today.
4. In these appeals, the appellant, Smt. Heoti Mahan was convicted for committing offence punishable under Section 302 of the Indian Penal Code (IPC), 1860 and was sentenced to undergo Rigorous Imprisonment (RI) for life and also was imposed a fine of Rs.1,000/- (Rupees one thousand) only, in default of which to undergo further sentence of Simple Imprisonment for 1(one) month.
5. The aforesaid legal process resulting in the conviction was initiated after a F.I.R. was lodged on 23.05.2014 by one Dambaru Mohan Phukan, Gaonburha of the village stating that Page No.# 4/23 at about 7.30 a.m. on that day, Smt. Heoti Mahan, wife of Sri Bhola Mohan, a resident of Moudumuni village under Sepon Police Out Post hacked her brother-in-law (husband's younger brother) Ghana Mahan to death with a dao in her house.
6. Accordingly, a police case was registered being Moranhat P.S. Case No.64/2014 under Section 302 of the IPC and consequently, a thorough investigation was carried out by the Investigating Officer and upon completion of the investigation, the appellant was committed for trial before the Court of Sessions Judge, Sivasagar and on committal, charge was framed against the appellant that on 23.05.2014 at about 7:30 A.M. she had committed murder by causing the death of Ghana Mohan thereby committed an offence punishable under Section 302 of the IPC.
7. The appellant pleaded not guilty to the same and accordingly, trial commenced.
8. In course of the trial, the prosecution examined as many as 11 (eleven) witnesses. Defence did not adduce any evidence and the statement of the appellant was recorded under Section 313 of the Cr.P.C.
9. The Trial Court, on appreciation of evidences on record, held that the charge against the appellant has been proved beyond all reasonable doubts and accordingly, convicted her under Section 302 of the IPC and sentenced her to undergo Rigorous Imprisonment for life as mentioned above.
10. Before we proceed to examine the contentions advanced in challenging this conviction of the appellant, we will first briefly refer to the evidences that have been brought on record.
11. The first witness (PW1) examined by the prosecution was Sri Dambaru Mohan Phukan, the Gaonburha and the informant who narrated about the incident as mentioned in the F.I.R.
Page No.# 5/23 and also stated that on that day when he was returning home after tethering cattle and collecting crops, the accused having a dao in his hand arrived and told him that she had come after killing a person and when he asked as to who she had killed, she replied that she had hacked Ghana to death. On being asked the reason, she replied that Ghana quarreled with her. Thereafter, PW1 called Dina Nath Phukan who was working nearby and told him that the accused had come and reported about the said crime and thereafter, Dina Nath Phukan went to the house of Ghana Mohan, the deceased. PW1 also stated that the house of appellant is located near the house of the deceased. There, he called some persons and went to the house of accused-appellant along with them. There they found Ghana Mahan lying injured in the backyard of the appellant with his head bleeding. He was alive at that time. PW1 then made a phone call to Sepon Police Out Post and police told him that if the injured was alive, he may be taken to the hospital. Thereafter, an ambulance was called. The injured person was found dead on arrival of the ambulance. Thereafter, he lodged an F.I.R. as a Gaonburha which was proved by him.
In the cross-examination, PW1 admitted that he did not witness the incident but he stated that the deceased Ghana Mohan used to quarrel and caused ruckus under the influence of liquor. He also stated that the behavior of the accused also appears to be abnormal.
12. The next witness examined was Dr. Dipak Gogoi as PW-2, who conducted the post- mortem examination on the dead body of the deceased and he found the following injuries.
"1. External appearance:
Dead body of a male person, rigor mortis present.
Page No.# 6/23
2. Incised injuries on:
(i) 2 cm on nose. (ii) 2 cm and 3 cm on chin. (iii) 2 cm on left ear. (iv) 5 cm on scalp over right parietal bone, 5 cm from right ear. (v) 4 cm & 5 cm on scalp over occipital bone, 6 & 7 cm respectively from right ear. (vi) 5 cm over occipital bone, 3 cm from left ear. (vi) 4 cm over left parietal eminence, 7 cm from left ear.
(vii) 4 cm laceration on right side of chest. 3 cm laceration on right side of mouth. Pollon on eyelids mucosa.
3. Cranium and spinal canal:-
Incised wound on scalp as described in Column No.1. Fracture of frontal bone.
Membrane : health.
Brain and spinal cord - healthy.
Liver, spleen, kidney was healthy.
Bladder - empty.
Organs of generation - healthy.
4. Thorax : Pleurae - healthy, larynx and trachea were healthy.
Both lungs - pale. Pericardium - healthy.
5. Heart - Blood on right side. Empty on left side.
6. Vessels - healthy.
7. Abdomen :- Walls, peritoneum, mouth, pharynx, esophagus - healthy. Stomach contained liquid.
Small intestine and large intestine and its contents - Distended with gas and faecal matter.
Page No.# 7/23
8. Discharge and deformity - Nil.
9. More detailed description :
Dead body of a male person. Rigor mortis was present. There were multiple incised wounds on scalp. The eyelids mucosa and lungs were pale. There were fracture of nasal bones, mandible and occipital bone."
He gave his opinion that death was caused due to shock and hemorrhage as a result of injuries sustained over the body and he also stated that the injuries were sufficient to cause death in normal course of nature.
The opinion given by PW-2 reads as follows,
"10. Opinion : In my opinion, the cause of death of deceased was due to shock and hemorrhage as a result of the injury sustained over the body. Ext.4 is the post mortem examination report and Ext.4(1) is my signature. Ext.4(2) is the counter signature of the then Joint Director, Health Services, Sivasagar. These injuries were sufficient to cause death of the deceased in the normal course of nature."
In the cross-examination, he stated that such type of injuries may be caused by falling on sharp cutting object.
13. The next witness examined was Dina Nath Phukan, PW-3 who stated that on the day of the incident while he was raising fence near the house of Dambaru Mohan (the complainant and the Gaonburha), the said Gaonburha called him and going to his house, he saw the appellant and the Complainant. He saw the appellant with a dao in her hand, whereupon he was told by PW1 that the appellant had come to his house informing that she had hacked her brother-in-law Ghana Mohan. PW3 also stated that on being asked, the appellant stated that being helpless, she hacked Ghana Mohan and also showed him the dao. Thereafter he along with the Gaonburha went to the appellant's house and on reaching the Page No.# 8/23 appellant's house, they found Ghana Mohan was lying dead on the eaves-drip.
PW3 also stated that thereafter, the Gaonburha informed the villagers and later on, the police came.
In the cross-examination, PW3 stated that the deceased Ghana Mohan used to cause ruckus under the influence of liquor.
14. The next witness examined was Smt. Tutumoni Mohan as PW-4, the wife of the victim. She stated that in the previous night of the incident, the deceased had gone to enjoy Bihu Mela and he was seen dancing in the Bihu Mela till morning. She also went for enjoying Bihu and after enjoying Bihu, she came home and went to the bed. She stated that at about 9:30 a.m. on the next day, Gopal Mohan came and awakened and informed her about the incident and thereafter, she found her husband lying dead with bleeding cut injuries in the house of the accused.
She stated that she was informed by the Gaonburha that the appellant had committed the said offence but she did not ask the appellant anything about it. She also saw cut marks in the hands, eyes and head of the deceased.
In the cross-examination, she stated that the appellant Heoti Mohan suffered from mental illness and she used to babble on. However, she denied in the cross-examination that some other person had hacked her husband and that she had adduced false evidence.
15. The next witness examined was Smt. Bornali Mohan, PW-5, who was the daughter-in- law of the accused. She stated that about one year ago she learnt that Ghana had died and the people said that the appellant had hacked the deceased Ghana. She stated that on that day she went to the house of the appellant and saw the deceased lying on the courtyard of Page No.# 9/23 the house of the appellant and the appellant was sitting on the verandah itself.
16. The next witness examined was Shri Bhoben Mohan, PW-6 who stated that he learnt from others that the appellant had hacked Ghana Mohan. He stated that he did not see the dead body though he was witness to the seizure memo in respect of the dao. However, he was declared hostile by the Court at the instance of the prosecution. He denied having stated to the police that the appellant had confessed to the said crime.
He also stated that he was not the eye-witness and did not see police seizing the dao from the possession of the appellant.
17. The next witness examined was Sri Girin Borgohain (PW-7), the brother-in-law of the deceased. He was not an eye-witness but on hearing about the incident, he came to the house of the accused where he found the deceased lying. He was witness to the seizure of the dao.
18. The next witness examined was Mrs. Bibha Mohan, (PW-8). She was not an eye- witness but came to know that the appellant had hacked Ghana Mohan and later came to know that Ghana Mohan had died.
19. The next witness examined was Sri Bhola Mohan, (PW-9), the husband of the accused, who was not an eye-witness. He stated that he came to know later that deceased had died. He stated that the deceased is his own brother but he did not know who had hacked his own brother.
20. The next witness examined was Sri Pradeep Mohan, (PW-10), the son of the appellant, who stated that when he returned home after participating in the Bihu Mela, he found the dead body of Ghana Mohan lying at the back of their house. He was then declared hostile at Page No.# 10/23 the instance of the prosecution.
He stated of having informed police about the injured body of his uncle lying on their backyard in the pool of blood.
He denied that police did not question him and that his mother did not tell before the police that she had killed Ghana Mohan.
21. The next witness examined was Sri Rebo Kt. Bora, PW-11, the I.O. of the case.
22. On completion of recording of the evidences of the prosecution witnesses, the appellant was examined under Section 313 of the Cr.P.C. by the Trial Court as regards various incriminating materials which have been brought on record and on being confronted with the same, the appellant denied of having any knowledge of the same contending that these are all false and her stand was that she had been falsely implicated.
23. The Trial Court, however, considering the evidences brought on record, was of the view that the prosecution has been able to prove the charge against the appellant beyond reasonable doubt and accordingly, convicted the appellant Heoti Mahan for committing offences under Section 302 of IPC and sentenced her to undergo Rigorous Imprisonment (RI) for life as mentioned above.
24. The Trial Court, in coming to such a conclusion, relied on the extra-judicial confession made by the appellant before the Gaonburha, PW-1 which the Trial Court held was corroborated by the evidence of PW-3.
25. The Trial Court held that the evidences of PW-1 and PW-3 fully establish the confession made by the appellant that she had hacked Ghana Mohan to death and on being asked the reason for the said act, the appellant stated that the deceased used to quarrel with Page No.# 11/23 her and accordingly, finished him. The Trial Court noted that since the house of the PW-1 was located at about distance of 400-500 meters away from the place of occurrence, the presence of PW1 (Gaonburha in the village) cannot be doubted. The Trial Court also of the view that the evidence of PW-3 who was also staying near the house of the PW-1fully corroborates the evidence of PW-1. The Trial Court noted that the evidences of PW-1 and PW-3 were not shaken and during the cross-examination, nothing was elicited from the PW-1 and PW-3 to the advantage of the defence.
26. The Trial Court held that the confession made by the PW1 was clear and that there was no vagueness. The Trial Court also held that it has been proved that after PW1 made the said confession, all of them went together to the house of the appellant where the deceased was found lying at the backyard of the house of the appellant.
The Trial Court also observed that there was nothing to show that the extra-judicial confessional statement made by the appellant was under inducement or threat, thus, it was voluntary in nature.
The Trial Court also noted that seizure of dao from the appellant has also been proved by the evidence of the Investigating Officer as well as PW-7.
The Trial Court also noted that during her examination under Section 313 of the Cr.P.C., the appellant merely denied having any knowledge but did not offer any explanation on the circumstances which were brought to her notice regarding the extra-judicial confession and also of the seizure of the weapon.
27. The Trial Court also considered the aspect as to whether the appellant committed the offence with intention and knowledge. It was held that though it had been brought during the Page No.# 12/23 evidences that the appellant appeared to be unstable, yet, the appellant never took any specific plea about her mental status to make out any claim that she was not in a position to understand the offence committed by her as alleged. The Trial Court noted that the extra- judicial confession by the appellant before the PW-1 and PW- 3, was done in a very natural manner.
28. Referring to the nature of injuries received by the deceased which are reflected in the post-mortem report, the Trial Court took the view that these injuries indicate that these were inflicted by the appellant with full knowledge and intention to cause death of the deceased Ghana Mohan and that there is nothing on record to show that she did so because of mental imbalance or by way of exercising the right to private defence due to any quarrel with the deceased. In fact, no plea of right to private defence was taken by the appellant. Accordingly, the Trial Court held that the prosecution has been able to prove the case against the appellant beyond reasonable doubt.
29. Mr. B. Prasad, learned Amicus Curiae has submitted that, it cannot be said that the prosecution has been able to prove the charge against the appellant beyond reasonable doubt for the following reasons.
Firstly, that there was no eye-witness to the incident. He submits that in absence of any eye-witness, to held the charge to be proved beyond reasonable doubt, the other circumstantial evidences have to be clearly proved, which has not been done by the prosecution in the present case.
He submits that in the present case, the extra-judicial confession which the appellant was alleged to have been made, has to be properly established, which has not been done.
Page No.# 13/23 It has been submitted that the members of the family of the deceased as well as the appellant were already present in the house when the incident allegedly occurred. According to the prosecution, instead of reporting the incident by the appellant to any of the family members staying in the house, the appellant apparently went to the house of the PW-1, which is also located at about 500 meters away. Thus, such a story projected by prosecution creates a doubt regarding the extra-judicial confession. He submits that the deposition of the other witness PW-3, who allegedly corroborated the evidence of the PW-1 is conflicting with that of PW 1.
It has been submitted that PW1 is staying far away from the house of the appellant. This creates a doubt as to whether the appellant really went to confess the crime allegedly committed by her to a person who was staying away from her house, rather than informing other immediate relatives in her own house or the immediate neighbours.
It has been also submitted that it is now well settled that the extra- judicial confession is a very weak piece of evidence and it cannot be the sole basis for conviction of a person, unless there are other corroborative evidences, which are missing in the present case.
It has been submitted by the learned Counsel for the appellant that the seizure of the weapon of crime i.e. the dao which was allegedly used by the appellant has not been proved. Referring to the deposition of PW -7, it is submitted that the seizure witness had resiled from the statement stating that the dao was seized in his presence (PW-7).
Mr. Prasad submits that PW-6, another Seizure witness deposed during the trial that he has not been able to recognize as to whether the dao exhibited was the same seized dao or not, though he admitted his signature in seizure list.
Page No.# 14/23 It has been submitted that thus, it cannot be said that the seizure of the dao has been properly proved. Under the circumstances, if the prosecution has not been able to prove the seizure of weapon of crime, it can certainly create a doubt on the actual occurrence also.
It has been also submitted that it is on record that in the seizure memo, it has been mentioned that there was a little blood stain found on the dao. However, the said dao was never sent for forensic examination to ascertain the nature of blood stain found on the dao and also the finger prints. He submits that therefore, it cannot be said that the blood stain found was of the blood of the deceased and that the exhibited dao was actually used in commission of the offence. If the forensic examination had been conducted such fact could have been ascertained. In absence of the forensic examination, it cannot be conclusively established that the appellant had used the dao to cause death of the deceased. Hence, a reasonable doubt has been created on account of non-examination of weapon of crime through forensic test.
Mr. Prasad further submits that the post-mortem report clearly indicates a number of injuries found on the body of the deceased and the Doctor, PW-2 also opined that the death was caused due to shock and hemorrhage as a result of injuries received by the deceased. However, the prosecution has not been able to show any blood stain on the body of the appellant or the apparel used by her, which would have been certainly found, if the deceased had received several injuries on the upper part of the body. Absence of any record to show blood stain on the body or clothing of the appellant creates another doubt as to whether the appellant was the real assailant.
It has been submitted by Mr. Prasad that the prosecution has not been able to Page No.# 15/23 establish the motive behind the alleged crime. He submits that no evidence has been brought on record to show any previous enmity or any circumstance, which would lead to the appellant assaulting the deceased by a dao. In fact, the evidences of PW1 and PW3 would suggest that the appellant was suffering from certain mental illness. He submits that therefore, if the appellant was suffering from mental illness or imbalance, in absence of a clear motive imputed to her for committing the offence, she could not have been convicted in asmuch as a very important ingredient of Section 302 of IPC is missing, in which event, certainly it cannot be said that the charge under Section 302 of IPC said to have been established.
30. In response, Mr. D. Das, learned Additional Public Prosecutor, Assam has submitted that the submissions advanced by learned Amicus Curiae are without any substance.
He submits that even if, there is no eye-witness, the extra-judicial confession made by the appellant is highly credible. Though extra-judicial confession may be considered a weak piece of evidence, in the present case, there is no doubt about credibility and genuineness of the extra-judicial confession as the said extra-judicial confession was made to a responsible person of the village i.e. Gaonburah, PW-1. No motive can be imputed to the Gaonburha for making false evidence before the Trial Court against the appellant.
Mr. Das submits that PW1 is a responsible person and it is quite natural that he would justify as to what had actually transpired on that day and as such, since the extra-judicial confession was made to a responsible person like a Gaonburha that too voluntarily, no doubt can be raised about the said extra-judicial confession and as such, even if it may be a weak piece of evidence, nevertheless, it can be a basis for sustaining the conviction.
Page No.# 16/23 Mr. Das further submits that the said extra-judicial confession has been fully corroborated with the evidence of PW3, who happened to be working near PW-1 at the time of making the extra-judicial confession by the appellant to the PW-1.
It has been also submitted by Mr. Das, learned Additional Public Prosecutor that the said extra-judicial confession is also corroborated by other evidences on record, i.e., the seizure of dao, recovery of the dead body from the house of the appellant and not from any other location not connected with the appellant, and these circumstances can be said to be conclusively proved. These circumstances read with the extra-judicial confession certainly form a complete chain of circumstances, which conclusively establish the guilt of the appellant.
It has been also submitted that as far as the motive is concerned, though it is difficult to get any direct evidence as to what transpired in the mind of the appellant, yet, from the circumstances, it can be clearly adduced that the appellant knew very well that by inflicting such injuries on the vital parts of the body of the deceased, it would cause death in normal circumstance and as such, it would be sufficient to establish the mens rea on the part of the assailant.
As regards the non-examination of the dao as well as the blood stain, of which much emphasis was laid by the learned Amicus Curiae, it has been submitted by learned Additional Public Prosecutor that failure to do so will not be fatal inasmuch as other evidences fully corroborate the use of dao by the appellant and from the nature of injuries received by the deceased.
31. We have heard the learned counsel for the parties and gone through the materials on Page No.# 17/23 record. We have also given our anxious consideration on the finding and conclusion arrived at by the Trial Court in convicting the appellant under Section 302 IPC.
32. As mentioned above, there is no eye-witness to the incident. However, absence of any eye-witness may not be fatal and conviction can be based on circumstantial evidences. Further, in the present case, the facts and evidences, which were unfolded before the Trial Court, all appear to be more or less contemporaneous in nature. Making of the extra-judicial confession, on which the Trial Court has based for conviction, was done almost soon after the incident had occurred. We have also examined the conduct of the witnesses (PW1 and PW3) which makes us feel that the extra-judicial confession was indeed made by the appellant before those witnesses. The fact that the appellant did not immediately report to his near and dear ones, who were present in the house and reporting to the Gaonburha does not appear to be unusual. Reporting a serious incident of the crime to the Gaonburha, who is the Headman of the village, also appears to be a natural course of action on the part of the villagers who respects the village authority.
33. We have also noted that there is nothing on record to suggest any motive on the part of the Gaonburha to falsely implicate the appellant. When we read the evidence of the Gaonburha, he appears to be engaged in normal day to day routine activities in the morning, when the appellant confessed the crime before him with the dao in her hand and the natural re-action of the Gaonburha was to ask as to why she had killed the deceased, whereupon, after knowing the reason as disclosed by the appellant that the deceased used to quarrel with her, the Gaonburha immediately called his neighbor Dina Nath Phukan, PW-3, who was working nearby and also informed PW-3 of what the appellant had confessed to him (PW-1). The said Dina Nath Phukan also testified before the Trial Court as PW-3 and fully corroborated Page No.# 18/23 what had been narrated by PW-1 and by the appellant.
34. There is also nothing to suggest that the said PW-1 and PW-3 had any enmity or strained relationship with the appellant as to falsely implicate her. Therefore, the way, by which PW-1 reacted and informed PW-3 appears that the appellant had indeed made the extra-judicial confession before the PW-1.
35. We have also noted that soon after the appellant made the extra-judicial confession, both PW-1 and PW-3 went to the house of the appellant where they found the deceased lying on the backyard of the house of the appellant, which can be seen from the sketch-map prepared by the Investigating Officer, which was exhibited as Ext.5. Though the sketch map indicates that the house of the deceased was also located nearby, the dead body was found on the backyard of the house of the appellant. In our opinion, the presence of the dead body of the deceased in the backyard of the house of the appellant is of critical importance. The extra-judicial confession made has been corroborated by the established fact of discovery of the dead body in the backyard of the appellant. PW-5, the daughter-in-law of the accused appellant also stated that the dead body of the deceased was lying in the backyard of the appellant. She had no reason to falsely state about the location of the dead body. The presence of the dead body in the house of the appellant (though in the backyard) does indicate that the incident happened in the house of the appellants though the actual reasons which preceeded the incident has not come out clearly.
36. In this regard, we may also note from the cross-examination of the husband as well as son of the accused that they were very much present in the house but they denied during the cross-examination having informed the police that the appellant had hacked him. Though the Page No.# 19/23 evidence in the cross-examination in the form of denial cannot be a substantial evidence, yet, the possibility of the said witnesses, the husband and son of the appellant trying to save their own wife and mother, does not appear to be unusual.
37. The fact that the dead body of the deceased was lying in the courtyard of the appellant has been fully established by the evidence of PW-5 who is daughter-in-law of the appellant as well as PW-7, seizure witness who stated that on being informed by his father that as Ghana Mohan had fallen ill, he had been taken to hospital, he went to the house of the appellant and found the deceased with injury near his ear, lying dead in the house of the appellant.
38. Since the fact that the dead body of the deceased was found on the backyard of the appellant, has been firmly established, certainly, it was incumbent upon the inmates of the house to explain as to the circumstances leading to the lying of the dead body in the courtyard which is not satisfactorily explained by any of the inmates as explained by the appellant in her extra-judicial confession. Therefore, we have no reason not to believe the extra-judicial confession made by the appellant.
39. There is another issue raised by the learned Amicus Curiae that the recovery of the dao which was allegedly used has not been fully proved.
Though one of the seizure witnesses, namely, PW-6 resiled from his earlier statement that he was a seizure witness by stating that he did not see the police seizing the dao from the possession of the accused-appellant, the police obtained his signature on a blank sheet of paper, another seizure witness PW-7 did not deny the seizure list though he could not recognize the material Exhibit 2 in course of the trial as to whether the dao, which was Page No.# 20/23 produced was the same dao, which was seized.
PW-1 who is also a seizure witness, however, remained consistent and the evidence of PW-1 clearly establish seizure of the dao.
Therefore, even if one of the witnesses had resiled and did not support the prosecution witnesses, the other two seizure witness duly supported the fact of seizure of the dao from the appellant. It is to be noted that the said PW-6 was declared hostile.
40. As regards the absence of forensic examination of the weapon of crime as well as the blood stain, in our view, if such forensic examination had been conducted, it could have bolstered the case of the prosecution. Yet, non-examination, in our view, cannot be said to be fatal in the light of surrounding circumstances, which have been proved inasmuch as forensic report is only another form of expert opinion. It is proved through the post-mortem report that the deceased had suffered sharp injuries which led to hemorrhage and shock leading to his death. It is also proved beyond reasonable doubt that the dead body was found in the house of the appellant which would clearly indicate to the role of the appellant as it is nobody's case that the dead body was dumped in the appellant's house by somebody else. If other members of the family of the appellant have professed no knowledge of the crime, it does not necessarily exculpate the appellant in the light of the other evidences.
41. Coming to lack of motive which has been also highlighted by Mr. Prasad, learned Amicus Curiae, we have given our anxious thought on this issue. As far as the knowledge that by causing such injuries on the vital parts of the body it would lead to death, we are also of the view that the prosecution, perhaps, has not been able to prove beyond reasonable doubt as to the mens rea and motive causing such an injury of the appellant through the evidence Page No.# 21/23 of PW1 and PW3, which is the fulcrum of the prosecution case, i.e., the extra-judicial confession made by the appellant.
42. We have observed that when PW-1 asked the appellant as to why she had killed a person, she replied that the appellant used to quarrel with her.
In the cross-examination, PW-1 also stated that the deceased used to quarrel and cause ruckus under the influence of liquor. He also mentioned that the appellant seems to be a bit abnormal. Similarly, PW 3 also stated in his evidence that when the appellant was asked as to why she had killed her brother-in-law, she replied that she being helpless had hacked the deceased. PW3 also in the cross-examination stated that the deceased Ghana Mohan used to cause ruckus under the influence of liquor.
43. From the above evidences, what appears is that the said deceased Ghana Mohan under the influence of liquor used to cause ruckus and the appellant could have been provoked or engaged in certain activity which led to the aggressive behavior on the part of the appellant. Though the appellant has not made any specific plea in her defence as well as in the statement recorded under Section 313 Cr.P.C. The aforesaid evidence of PW1 and PW3 indicates the aggressive behavior by the deceased causing nuisance to the appellant resulting in the unfortunate incident.
It is also on record that the said deceased was dancing on the night during the Bihu Mela as stated by his wife, PW4.
44. In the facts and circumstances of the case, we are of the opinion that there is a distinct possibility that the deceased was creating a nuisance in the house of the appellant after getting drunk which made the appellant to strike him.
Page No.# 22/23 We find support in taking this view from the evidence of PW3 who stated that on being asked the appellant replied that being helpless she had hacked Ghana Mohan. The expression "being helpless" itself indicates immediate provocation on the part of the deceased Ghana Mohan. That the deceased used to create ruckus and caused nuisance on getting drunk has been already testified by both PW1 and PW3.
The evidences so brought on record do not indicate that the killing was premediated or planned. It is quite significant that the wife of the deceased PW-4 stated that when she was told about the death of her husband in the house of the appellant, she did not ask anything about it from the appellant. If the appellant was really guilty of committing murder of an innocent husband, the wife would have vehemently protested. The fact that the wife (PW4) did not demur indicates that her husband must have been in some manner to be blamed.
45. Under the circumstances, we are also of the view that the prosecution has not been able to establish beyond reasonable doubt the one of the vital ingredients for constituting the offence of murder punishable under Section 302 IPC i.e. motive or intention as there is element of doubt about its existence in the present case.
Accordingly, we are inclined to convert the conviction of the appellant from under Section 302 of the IPC to Section 304, Part II of IPC.
46. It has been brought to our notice that the appellant was arrested on 23.05.2014 and released on bail on 26.08.2014 and the appellant was again taken into custody on 30.05.2017 and has remained under detention since then and as such, she has undergone custody for 5 (five) years and 9(nine) months.
47. Under the circumstances, as discussed above, we are inclined to convert her sentence Page No.# 23/23 from Rigorous Imprisonment for life to conviction for a period of 6 (six) years for the commission of an offence under section 304 Part-II of IPC.
Resultantly, the appellant shall be set free on completion of sentence of 6(six) years of imprisonment.
48. To the aforesaid extent, the present appeals, CRL.A.(J) No.76/2017 and Crl.A. No.330/2017 are allowed.
49. The High Court Legal Services Authority will release honorarium to Mr. B. Prasad, learned Amicus Curiae who has ably assisted this Court in conducting these two appeals at the rate fixed for legal aid advocates under the rules.
JUDGE JUDGE Comparing Assistant