Gauhati High Court
Rajen Gowala vs The State Of Assam on 26 June, 2020
Author: Manish Choudhury
Bench: Manash Ranjan Pathak, Manish Choudhury
Page No.# 1/17
GAHC010028782015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J) 126/2015
1:RAJEN GOWALA
VERSUS
1:THE STATE OF ASSAM
2:SRI BIPUL GOWALA
S/O-RAJEN GOWALA
VILL-BORFOLUNG T.E. CHOWRA LINE
P.S.-KAMARGAON
DIST.-GOLAGHAT
ASSAM
Advocate for the Petitioner : MS.B SARMA
Advocate for the Respondent : PP, ASSAM
Page No.# 2/17 BEFORE HON'BLE MR. JUSTICE MANASH RANJAN PATHAK HON'BLE MR. JUSTICE MANISH CHOUDHURY Date of Hearing : 18.01.2019, 19.06.2020.
Date of Judgment : 26.06.2020.
JUDGMENT AND ORDER (CAV)
(Manish Choudhury, J.)
The judgment dated 12.10.2015 and the order dated 14.10.2015, passed by the learned Additional Sessions Judge, Golaghat, Assam in Sessions Case No. 09/2009 (G.R. Case No. 1127/2008), convicting the accused-appellant under Section 302 of the Indian Penal Code (IPC, in short) and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs. 1,000/-, in default, to suffer further simple imprisonment for a period of 6 (six) months, is the subject matter of challenge in the instant jail appeal.
2. The prosecution was set in motion by an Ejahar dated 30.10.2008, lodged by one Bipul Gowala (PW.2) before the In-Charge of Khumtai Police Out Post under Kamargaon Police Station, alleging, inter-alia, that on 29.10.2008 at around 9-00 p.m. in the absence of him and his brother in the house, his father, Rajen Gowala, the accused-appellant by kicked, punched and slapped his mother, Ankita Gowala inside the house and thereby brutally assaulted her and as a result of the same, she breathed her last inside the house itself. In the Ejahar, informant mentioned that his younger sister of 10 years, Dipanjali Gowala (PW.7) who was present, told him that she had witnessed everything at the time of the incident and that on arriving home from the puja ceremony, he could learn about the incident. The other brother of the informant, Bikash Gowala (PW.3) who was not at home, was intimated about the incident in the next morning. The informant in the Ejahar also stated that they had seen their father torturing their mother and when they resisted him, he used to chase them with dao or lathi to assault them.
3. The In-Charge of Khumtai Police Out Post, on receipt of the aforesaid Ejahar on 30.10.2008, made the General Diary Entry No. 492, took up the investigation and forwarded Page No.# 3/17 the said Ejahar to the Officer In-Charge of Kamargaon Police Station for registering a case. On receipt of the aforesaid Ejahar on 30.10.2008, the Officer-in-Charge of Kamargaon Police Station registered it as Kamargaon Police Station Case No. 61/2008 under Section 302 of the IPC and the corresponding G.R. Case No. 1127/2008 was also registered. In the course of investigation, the Investigating Officer (I.O., in short) of the case arrested the accused on 31.10.2008.
4. During the course of investigation, the Investigating Officer visited the site of the incident, drew its sketch map and got the statements of the witnesses recorded under Section 161 of Code of Criminal Procedure. The statements of the minor daughter of the deceased Dipanjali Gowala (PW.7) and the informant Bipul Gowala (PW.2) were recorded under Section 164 CrPC on 31.10.2008 before the Judicial Magistrate, First Class, Golaghat. The Police after causing inquest over the dead body of the deceased through the Circle Officer cum Executive Magistrate, Khumtai, sent the dead body for its Post-Mortem Examination to the Kushal Konwar Civil Hospital, Golaghat for its Post-Mortem Examination, which was conducted on 31.10.2008 itself. After completing the investigation, finding a prima-facie case, the I.O. on 31.12.2008 submitted the Charge Sheet No. 49/2008 dated (Exhibit-5) under Section 173 CrPC in said Kamargaon PS Case No. 61/2008 under Section 302 IPC against the accused-appellant in the case showing him to be in custody as he was in jail custody.
5. On appearance of the accused before the Judicial Magistrate, First Class, Golaghat by causing his production from custody, the copies under Section 207, CrPC were furnished to him. As the offence alleged under Section 302 IPC is exclusively triable by the Court of Sessions, the said Magistrate by Order dated 03.02.2009 under Section 209 CrPC committed the case record of G.R. Case No. 1127/2008 to the Court of learned Sessions Judge, Golaghat.
6. On such transfer pursuant to commitment, the Court of learned Sessions Judge, Golaghat on receiving the record of said G.R. Case No. 1127/2008 registered and numbered it as Sessions Case No. 09/2009. Upon hearing the learned Public Prosecutor, the State defence counsel and on perusal of the case records, the learned Sessions Judge, Golaghat on 17.02.2009 framed charge under Section 302 IPC against the accused, which was read over Page No.# 4/17 and explained to him, to which, the accused pleaded not guilty and claimed to be tried.
7. During the course of trial, nine witnesses including the I.O. were examined by the prosecution. The defence did not adduce any evidence but cross examined the prosecution witnesses. The accused was examined under Section 313 Cr.P.C. and in the said examination, he denied of assaulting the deceased. Having found the charge framed under Section 302 IPC proved against the accused, the learned trial Court convicted him accordingly and passed the sentence mentioned hereinabove. Aggrieved by the impugned Judgment of conviction and order of sentence, the accused preferred the instant appeal.
8. We have heard Ms. Bijita Sarma, learned Amicus Curiae for the accused-appellant and Mr. Makhan Phukan, learned Additional Public Prosecutor for the State.
9. Ms. Sarma, learned Amicus Curiae submitted that there were contradictions and inconsistencies in the evidences of the witnesses and the prosecution has failed to bring home the charge under Section 302 IPC against the accused-appellant beyond all reasonable doubts. In that view of the matter, the accused-appellant is entitled to be acquitted of the said charge. She further submitted that evidence of the minor daughter of the deceased and the accused, PW. 7, Dipanjali Gowala could not have been relied upon in view of her evidence during the trial. Further, her statement recorded under Section 164, Cr.P.C. cannot be taken into consideration. When the other evidence are taken into consideration, the same would reveal that the prosecution has failed to prove the culpability of the accused-appellant. Mr. Phukan, the learned Additional Public Prosecutor, on the other hand, submitted that the evidence on record clearly proved the case of the prosecution beyond all reasonable doubts and it goes to show that the accused only caused the injuries with the intention and knowledge to kill his wife.
10. In order to appreciate the submissions of the parties in the proper perspective, it would be essential to discuss the evidence of the prosecution witnesses.
11. PW. 1, Dr. Manab Jyoti Barman was working as the Medical & Health Officer at K.K. Civil Hospital, Golaghat on 31.10.2008 when he examined the dead body of Ankita Gowala, female of about 45 years, in reference to Khumtai Out Post General Diary Entry No. 492 dated 30.10.2008. Upon examination, his observations were as under:-
Page No.# 5/17 "Dead body of a female person of about 45 years of age, dark complexion with long black hair, mouth and eyes are closed. Rigor mortis present in both upper and lower limbs.
Injuries.
1) Bruises over both molar prominences of the face.
2) Haematoma over the forehead of 1" diameter.
3) Bruise over anterior chest wall of 1"x4" towards right side.
4) Bruise over the epigastria region of the abdomen of 2"x4" in size.
5) Bruise over the right lateral surface of the chest wall of 3"x4" size.
Multiple bruises seen over the chest as described above. Fracture of the ribs No. 4th, 5th and 6th detected in the right mid auxiliary line beneath the fracture site both parietal visceral pleura are lacerated. Clotted and liquid blood in large amount filling the pleural space found. The right lung is compressed due to large amount of blood in the pleural cavity. Laceration of the lung measuring 1" X 5" seen at the fracture site.
6) Other organs are healthy.
7) Injuries were ante mortem in nature.
8) Time since death is less than 36 hours."
On the basis of the above findings, the doctor, PW.1 opined that the cause of death was due to massive intrathorasic hemorrhage following severe blunt injury to the chest of the deceased. He further opined that the injury No. 5 was sufficient to cause death of a person in the ordinary course of nature. The Post-Mortem Examination Report was exhibited as Exhibit-1. In his cross-examination, PW. 1 stated that except injury No. 5, the other injuries might be caused by falling or dashing against hard substance.
12. PW. 2, Bipul Gowala, the son of the deceased and the accused, who is the informant of the case stated that the incident took place in the night of Diwali. He arrived home at about 9-00/10-00 p.m. and when he called his mother, she did not get up. When he looked for his mother, he saw his mother lying on the ground inside the house. He lifted his mother on to the bed and fomented her, but he found his mother already dead. PW.2 deposed that when he arrived home his younger sister, Dipanjali Gowala (PW.7), was in the prayer house and on being asked, she (PW.7) informed him that their father had killed their mother. PW.2 stated that his younger brother informed the V.D.P. and the police was informed. In the next Page No.# 6/17 morning, at around 9-00/10-00 a.m., police arrived and conducted inquest on the dead body of the deceased wherein PW. 2 was an witness. PW.2 deposed that one Radheshyam wrote the Ejahar as per his version wherein he subscribed his thumb impression.
13. In his cross-examination, PW.2 stated that when he went out of the house, his mother i.e. the deceased and his younger sister were present. When PW.2 arrived home at night, his father i.e. the accused was sleeping on the bed. He further stated that his mother was a patient of blood pressure and she used to fall here and there occasionally. He denied the suggestion that he did not return home in that night when the alleged incident took place. He further denied the suggestion that his younger sister did not tell him that their father had killed their mother. He also deposed that their father used to provide wearing apparels, ration, etc. to their mother.
14. PW.3, Bikash Gowala, who is the other son of the deceased and the accused, deposed that the incident took place in the night of Kali Puja and when he arrived home in the next morning, he found his younger sister and the elder brother weeping. They informed him that their mother had died. Going inside the house, he saw the dead body of his mother lying on the bed. PW. 3 stated that he was told by his younger sister and the elder brother that their father had killed their mother. In his cross-examination, he stated that he was not present at home at the time of the alleged incident but he denied the suggestion that his younger sister did not tell him about his father killing his mother.
15. PW. 4, Radheshyam Keot, is the V.D.P. President. He deposed that the incident took place in the night of 29.10.2008 and he was informed by PW.3, Bikash Gowala in the morning of the following day that their father had killed their mother and kept the dead body inside the house. Getting this information, PW.4 went to the place of occurrence and there, he found the accused at home and the dead body was kept laid inside the house. Dipanjali Gowala (PW. 7), the daughter of the accused and the deceased, told him that she had seen her father assaulting her mother through the window. PW.4 also stated that he saw blood stains on the wall of the room and also saw wiping out blood marks from the floor. PW.4 also stated that he saw blood on the face of the deceased and that the V.D.P. members had kept the accused apprehended there and informed the police, who arrived there along with a Magistrate around 10-00 a.m. The Magistrate held inquest on the dead body and he signed Page No.# 7/17 the Inquest Report which was exhibited as Exhibit-2. Exhibiting the Ejahar, Exhibit-3, PW.4 stated that he had written it as per the version of Bipul Gowala, PW. 2. In his cross- examination, PW.4 denied the suggestions made on behalf of the accused that he had falsely stated that Bikash had told him that his father had killed his mother that Dipanjali had told before him that she had seen her father assaulting her mother, etc.
16. PW. 5, Mahendra Sawachi, a member of the V.D.P. deposed that the incident took place at night during the Diwali festival. On the following day of the incident he heard from others that Rajen Gowala had killed his wife, then he went to the place of occurrence and going there, he saw Ankita Gowala lying dead inside the house. He deposed that, the young daughter of the accused, on being asked, replied that her father had killed her mother. He proved the Inquest Report, Exhibit-2. In his cross-examination, this witness stated that he did not witness the incident. He denied the suggestion of the defence that the daughter of the accused did not state before him that her father had killed her mother.
17. PW. 6, Jiten Chawla, is a neighbor and the V.D.P. Secretary who deposed that at around 9-00/10-00 p.m., he heard the weeping of Dipanjali, the daughter of the accused. On hearing the cry, he went to the house of the accused along with other persons and he saw the accused at his home. He deposed that on being asked, she told that her father had killed her mother. When he went to the place of occurrence, the dead body was lying on the ground. The neighbourhood people kept the accused confined in the house and in the next morning the police arrived.
18. PW.7, Dipanjali Gowala, is the minor daughter of the deceased and the accused. She deposed that her mother died at around 8-00 p.m. about 11/12 years back. On the date of her deposition on 30.06.2012, she said that she was staying with her father. Her elder brothers viz. Bipul Gowala, PW.2 and Biwanath Gowala, PW.8 and her father i.e. the accused- appellant were living together. She deposed that at the time of the incident, her mother had gone to a shop and while going to the shop, her mother fell down on the road as she was patient of blood pressure. She deposed that then her father carried her mother home from the road. She lighted an earthen lamp and found that her mother had died. It was stated by her that when her mother died, she came to the Court once and made statement. At this stage the said witness, PW.7, was declared hostile by the prosecution and subjected her to Page No.# 8/17 cross-examination. In her cross-examination, she denied those portions of her statement in the case-diary to the effect that "My elder brother went to enjoy 'Kali Puja' last night, i.e. on 29.10.2008. My mother, father and I were at home. Around 9-00 p.m., my father dealt blows and punches to my mother inside the house as a result of which my mother fell down on the ground. Then, my father thrashed the head of my mother against the ground whereupon my mother lost her senses. Thereafter, my father kept trampling my mother. My mother became incapable of speaking. After a short while, seeing my mother lying in that way, I called my mother, but, she did not respond. Later, I found that my mother died". She deposed that her father, Biswanath and she were at home that night. She stated that she had come with her father i.e. the accused on the day of deposition. She denied the suggestion that for the sake of her father, she had deposed falsely.
19. PW.8, Biswanath Gowala, is another son of the deceased and the accused and he deposed that on the day of the incident, there was 'Kali Puja' celebration in the garden and he accompanied by the other two brothers, went to enjoy the Puja. His parents and his younger sister were at home. At 10-00 p.m., he returned home leaving his two brothers. His mother was at home and she was found lying on the floor. His sister, Dipanjali was outside the house. He stated that his mother fell down on the road when she had gone to bring kerosene. At this stage the said witness, PW.8, was declared hostile by the prosecution and he was subjected to cross-examination. He declined that he stated before the police that at around 9-00 p.m., his father Rajen Gowala killed his mother Ankita Gowala inside the house by slapping, punching and kicking her. He also denied the suggestion that his younger sister told him that she herself witnessed the incident. He also denied the suggestion that he had deposed falsely for the sake of her father.
20. PW.9, Ganga Narayan Bora, in his deposition stated that on 30.10.2008, he was the Officer-in-Charge of Kamargaon Police Station and Sariful Hussain, the then InCharge of Khumtai Out Post on 30.10.2008 received an Ejahar from one Bipul Gowala (PW. 2) alleging that his (Bipul's) mother, Ankita Gowala had been killed by his father Rajen Gowala. On receipt of the same, the In-Charge of said Out Post entered it in the Diary being the General Diary Entry (GDE) No. 492 dated 30.10.2008 and forwarded the said Ejahar to the Officer-in- Charge of Kamargaon Police Station for registering a case. On its receipt on 30.10.2008, Page No.# 9/17 PW.9, registered the said Ejahar as Kamargaon Police Station Case No. 61/2008 under Section 302 IPC and entrusted the case to, Sariful Hussain, Sub-Inspector of Police, the In-Charge of Khumtai Out Post, who accordingly took up the investigation. In the course of investigation, the Investigating Officer (I.O., in short) visited the place of occurrence, drew the sketch map of the place of occurrence, made the inquest of the dead body of Ankita Gowala with the help of the Magistrate, in presence of witnesses and thereafter sent the dead body of the said deceased for its Post Mortem Examination and after Post Mortem Examination, he collected the Post-Mortem Examination Report. The said I.O. examined the witnesses and arrested the accused, Rajen Gowala. The PW.9 proved the said sketch map as Exhibit-4 and deposed that the said I.O. on finding sufficient incriminating materials against the accused, submitted the charge sheet against him under Section 302, IPC. PW.9 also stated that PW.7, Dipanjali Gowala stated before the I.O. to the effect that - "My elder brother went to enjoy 'Kali Puja' last night, i.e. on 29.10.2008. My mother, father and I were at home. Around 9-00 p.m., my father slapped and punched my mother inside the house as a result of which she fell down on the ground. Then, my father thrashed the head of my mother against the ground. My mother became unconscious. Later, my father kept trampling my mother. Seeing my mother lying in such a way for a while, I called her but, she did not respond. Later, I could learn that she had expired." PW.9 proved the Exhibit-6, statement of PW.7 recorded by the Magistrate under Section 164 Cr.P.C.
21. In his cross-examination, PW.9 denied the suggestion that PW.7, Dipanjali did not state before the I.O. in the manner he had stated. PW.9 had, however, stated that PW.4, Radheshyam Keot did not state in his statement before the I.O. that he had learnt from Bikash that the accused, who was his father, had killed his mother and Dipanjali had seen her father assaulting her mother, through the window. PW.9 also stated that PW.4 did not state before the I.O. that he had seen blood stains on the walls and floor of the house and on clothes worn by the deceased. The I.O. was not confronted by the defence in any manner relating to the statement of PW. 7 recorded before the Magistrate.
22. From the evidence of PW.2, it can be seen that when he arrived home at around 9- 00/10-00 p.m. after attending Diwali celebration he found his father i.e. the accused sleeping on the bed. PW.4 who was the V.D.P. President, stated that the V.D.P. members kept the Page No.# 10/17 accused confined to the house. PW.6 had particularly deposed that at around 9-00/10-00 p.m. of the day of the incident he heard PW.7 crying and he went to the house of the deceased along with other persons immediately and there, he found the accused. The defence failed to discredit that part of the evidence. It is, thus, clearly established that at the time of the incident and immediately after the incident, the accused was found at home and he was kept confined in the house by the V.D.P. till the time the Police arrived and till he was arrested.
23. From the examination-in-chief part of PW.7, Dipanjali Gowala it is clear that she, her father (the accused) and her mother (the deceased) only were present at their house during the time of the incident. There was no evidence about the presence of any other person excepting them at the house during that time. When those facts about his presence at the house at the time of the incident and his confinement thereafter, were put to the accused, he simply denied about the confinement and stated that after his arrival at the house he was lying there witnessing the incident. But, there was no evidence which goes to show that at the time of the incident the accused was somewhere else. In Trimukh Maroti Kirkan Vs. State of Maharashtra, reported in (2006) 10 SCC 381, it is observed by the Apex Court that where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling house where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In the case of Ganeshlal Vs. State of Maharashtra, reported in (1992) 3 SCC 106, where the accused was prosecuted for the murder of his wife which took place inside his house, the Hon'ble Supreme Court observed that when the death had occurred in the custody of the accused, he is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife.
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24. From the records, it is seen that the statement of Dipanjali Gowala (PW.7), who is the minor daughter of the deceased and the accused, was recorded on 30.01.2018 by the Judicial Magistrate, First Class, Golaghat. In her said statement, PW.7 had narrated the incident which had occurred on 30.01.2018. In the said statement, PW. 7 deposed to the effect that her father dragged her mother to their home from the road and assaulted her. Her father assaulted her mother in her hands and chest and he also pressed mother's neck. The evidence of a child witness can be considered under Section 118 of the Evidence Act, provided such a witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof depends upon the circumstances of each case. In the instant case, before recording the statement of PW.7 under Section 164 Cr.P.C., the learned Magistrate tried to assess the capacity and intelligence of the said child witness by putting certain questions to her and eliciting the answers thereof. Having assessed the capacity and intelligence of the PW.7 in such manner, the learned Magistrate went on to record her statement. This Court is mindful to the fact that the statement recorded under Section 164 Cr.P.C. is not a substantive piece of evidence as per the Evidence Act. Such statement, at best, can be used for the purpose of contradiction or corroboration. It is also established that the evidence of a child witness is not required to be rejected per se, but as a rule of prudence, such evidence is required to be considered with utmost scrutiny for the purpose of its reliability. The Court is also not oblivious of the fact that child witnesses can be easily influenced sometimes and their evidence could be moulded. As can be seen from the evidence of the PW.7, which was also observed by the learned Trial Court that at the time of recording the statement of PW.7 under Section 164 Cr.P.C., her father i.e. the accused was in judicial custody. On the other hand, the deposition of PW.7 was recorded on 30.06.2012, when her father i.e. the accused was not in judicial custody. In her cross-examination, PW.7 stated that she came to the Court with her father i.e. the accused. Thus, there is a clear possibility that her evidence could be influenced by the accused being her father who had the care and custody of her on 30.06.2012. That could be the reason why PW.7 had to be declared as a hostile witness.
25. It is not a rule of law that it does not necessarily follow the statement of a witness recorded under Section 164 Cr.P.C. is always to be viewed with distrust. It is only that such Page No.# 12/17 evidence must be considered with caution and if there are other circumstances on record which might support the truth of such evidence, it can be acted upon.
26. On the other hand, on scrutiny of the evidence of PW.6, who is a neighbour and an independent witness, it is observed that this witness went to the place of occurrence immediately after the incident on hearing the cry of PW.7 Dipanjali Gowala, the minor daughter of the accused. When he asked said PW.7, Dipanjali, she replied that her father had killed her mother. In the Ejahar (Exhibit-3) lodged by PW.2, Bipul Gowala it was mentioned that his younger sister, Dipanjali Gowala told him that she had witnessed everything at the time of the incident. PW.3 Bikash Gowala, another son of the deceased and the accused, stated that his younger sister and elder brother told him that their father had killed their mother. In view of the fact that PW.7 had reported to PW.6 immediately after the incident that her mother was killed by the father, the said part of the evidence is acceptable in the view of the principle or law embodied in Section 6 of the Evidence Act. As per Section 6 of the Evidence Act, facts which, though not in issue, are so connected with a fact in issue to form part of the same transaction are relevant, whether they occurred at the same time and place or at different times and places. The general rule is that hearsay evidence is not admissible but the rule of res gestae, embodied in Section 6 of the Evidence Act, is an exception to the hearsay rule. If a statement is made substantially contemporaneously with the act or immediately after it, so that there is no opportunity for reflection or fabrication of improvement, such statement or fact is admissible on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. Therefore, in the fact situation obtaining in the present case, it can safely be held that the deceased died due to the act of assault of the accused and as a result of the injuries suffered thereto, more particularly, due to injury No. 5, as mentioned herein above. In view of the corroboration lent by the statement of the minor daughter of the deceased and the accused to the other evidence on record, notwithstanding her hostility in the changed situation, it can be used for purpose of corroboration.
27. The question is as to what offence the accused, Rajen Gowala had committed. The learned Trial Judge was of opinion that the act of the accused is culpable homicide amounting to murder.
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28. Section 299 and Section 300 of the IPC have provided for the definitions of culpable homicide and murder. Section 299 reads as under:-
"299. Culpable homicide. - Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
Section 300, IPC has provided as under:-
"300. Murder. - Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -
2ndly. - It is done with intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
4thly. - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
29. From the above definitions of culpable homicide and murder, as provided in Sections 299 and 300 of the IPC respectively, it is clear that there is distinction between culpable homicide and murder in the sense that a culpable homicide to be a murder, any one of the four situations mentioned in Section 300, Indian Penal Code must be present. In Subhash Shamrao Pachunde Vs. State of Maharashtra, reported in (2006) 1 SCC 384, it has been observed as under:-
''26. The distinction between the offences of culpable homicide and murder is the presence of special mens rea which consists of four mental attitudes in the presence of any of which the lesser offence becomes greater. These attitudes are stated in Section 300 IPC as distinguishing murder from culpable homicide not amounting to murder."
30. In order to understand the distinction between culpable homicide and murder, it is apposite to refer to the following excerpts from the decision of the Apex Court in Rajwant Singh Vs. State of Kerala reported in AIR 1966 SC 1874 :-
''8. ................................................ Two offences involve the killing of a person. They are the offence of culpable homicide and the more heinous offence of murder. What distinguishes these two offences is the presence of a special mens rea which consists of four Page No.# 14/17 mental attitudes in the presence of any of which the lesser offence becomes greater. These four mental attitudes are stated in Section 300, Indian Penal Code as distinguishing murder from culpable homicide. Unless the offence can be said to involve at least one such mental attitude it cannot be murder. We shall consider the acts of the appellants in relation to each of the clauses of Section 300.
9. The first clause says that culpable homicide is murder if the act by which death is caused is done with the intention of causing death. An intention to kill a person brings the matter so clearly within the general principle of mens rea as to cause no difficulty. Once the intention to kill is proved, the offence is murder unless one of the exceptions applies, in which case the offence is reduced to culpable homicide not amounting to murder. As there is no question of any of the exceptions they need not be mentioned.
10. The second clause deals with acts done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom harm is caused. The mental attitude here is two-fold. There is first the intention to cause bodily harm and next there is the subjective knowledge that death will be the likely consequence of the intended injury. English Common Law made no clear distinction between intention and recklessness but in our law the foresight of the death must be present. The mental attitude is thus made of two elements- (a) causing an intentional injury and (b) which injury the offender has the foresight to know would cause death.
11. The third clause discards the test of subjective knowledge. It deals with acts done with the intention of causing bodily injury to a person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. In this clause the result of the intentionally caused injury must be viewed objectively. If the injury that the offender intends causing and does cause is sufficient to cause death in the ordinary way of nature the offence is murder whether the offender intended causing death or not and whether the offender had a subjective knowledge of the consequences or not. As was laid down in Virsa Singh v. State of Punjab, 1958 SCR 1495 for the application of this clause it must be first established that an injury is caused, next it must be established objectively what the nature of that injury in the ordinary course of nature is. If the injury is found to be sufficient to cause death one test is satisfied. Then it must be proved that there was an intention to inflict that very injury and not some other injury and that it was not accidental or unintentional. If this is also held against the offender the offence of murder is established.
15. ...................... That clause (fourth clause) comprehends, generally, the commission of imminently dangerous acts which must in all probability cause death."
31. Even if none of the exceptions are pleaded or prime facie made out in evidence on record, the prosecution is still required under the law to bring the case under any of the four Page No.# 15/17 clauses of Section 300 IPC, to sustain the charge of murder. If the prosecution fails to discharge the onus in establishing any of those four clauses, the charge of murder would not be made out and it can at best come under Section 299 IPC. When there is no apparent motive for murder it is necessary to scrutinize the prosecution evidence with great care. In the instant case, when the Ejahar was lodged by PW.2 the informant mentioned that on previous occasions, they had seen their father torturing their mother and on those occasions, whenever they tried to resist him he used to chase them with dao or lathi to assault them. It is clear that there were past instances of the accused beating his wife and the accused used to chase his wards whenever they tried to resist him. But there is no evidence to the effect that the accused had ever threatened to kill his wife at any earlier occasion. The informant, PW.2, had himself had stated that the accused used to provide the essentials to his wife. The conduct of the accused, in the instant case, is relevant. After the act of assault the accused was found in his house and he did not leave the place of occurrence till he was confined to his house by the members of the V.D.P. and, thereafter, his arrest by the I.O. It appears from the injuries sustained by the deceased, as reflected from the post mortem examination report (Exhibit-1) that the accused did not use any kind of weapon except his hands and feet. PW.1, in his evidence, had stated that except injury No. 5, the other injuries might be caused by falling or dashing against hard substance. According to him, the cause of death was due to massive intrathorasic hemorrhage following severe blunt injury to the chest of the deceased.
He further opined that the injury No.5 was sufficient to cause death of a person in the ordinary course of nature. The injury which led to the death of the deceased was the result of kicking of the accused on the chest of the deceased by his legs when the deceased was on the ground.
32. The question for consideration is whether the appellant Rajen Gowala in kicking on the chest of the deceased by his legs had the intention of causing such bodily injury as he knew that his said act was likely to cause the death of his wife, Ankita Gowala, or whether he kicked on her with the intention of causing such bodily injury as was sufficient in the ordinary course of nature to cause her death. The essence of the crime of murder under Clause (2) of Section 300, IPC is that there must be the intention of causing such bodily injury as the offender knows is likely to cause death. In order to convict Rajen Gowala of the offence of Page No.# 16/17 murder under Section 300 IPC, it has to be found that he had the intention of causing such severe blunt injury on the chest of the deceased so as to cause intrathorasic hemorrhage and also that he had the knowledge that such injury which he intended to inflict was likely to cause death. It is hard to suppose that he intended to cause such injury on the chest of the deceased by his beating which was likely to cause intrathorasic hemorrhage leading to the death of the deceased. The evidence and circumstances including posterior conduct lead us to suppose that he could have no such intention. We are of opinion that the accused had no intention of causing such bodily injury as he knew that said act likely to cause death, but intended only to assault her severely. In our opinion even the third clause of Section 300 IPC also does not apply to the case in hand.
33. In the present case also, it must be shown that the injury which the accused intended to cause was such as to be sufficient in the ordinary course of nature to cause death. By kicking with legs and blows with bare hands on the chest without even using any weapon, instrument or means is likely to cause death and the person who inflicts the injuries on the chest of another person must be presumed to have the knowledge of causing such bodily injury as is likely to cause death. But to our mind it does not necessarily follow that blunt injuries on the chest without any use of weapon, instrument, etc. but by blows with hands or kicks on the chest is always sufficient in the ordinary course of nature to cause death, and we have already found that he had no intention of causing the bodily injury which was caused due to intrathorasic hemorrhage resulting from the blunt injury suffered on the chest which resulted in the death of the deceased. If a person, causes death by doing an act with the intention of causing such bodily injury as is likely to cause death, his offence comes under Section 299, and it is only, if the intention was to cause bodily injury, which injury was sufficient in the ordinary course of nature to cause death, that the offence would come under Section 300, Clause (3). The difference between the two is fine, but there is certainly a difference.
34. The attending evidence on record does not indicate that the appellant beat the deceased with the intention causing death with his hands and feet. The facts and circumstances are not enough for reaching a conclusion that the accused beat the deceased with both knowledge and intention of causing death or causing such bodily injury as is likely Page No.# 17/17 to cause death to the deceased attracting punishment under Section 304 Part-I of the Indian Penal Code. From the posterior conduct demonstrated by the appellant, by remaining in his own house after inflicting the injuries on his wife, such intention of causing death appears to be lacking. If there is intent and knowledge then the same would be a case of Section 304 Part I and if it only a case of knowledge and not intention to cause murder and bodily injury then the same would fall under Section 304 Part II.
35. Thus, considering the entire factual background and the legal position stated above, the conclusion is that the appropriate conviction of the accused appellant of this appeal would be under Section 304 Part-II of the IPC and not under Section 302 IPC.
36. Therefore, we deem it proper to convert the impugned conviction under Section 302 IPC to one under Section 304 Part-II IPC. Considering the aforesaid facts and circumstances of the case, we are accordingly of view that the interest of justice would be served if the sentence is converted to rigorous imprisonment of 8 (eight) years and to pay a fine of Rs. 1,000/-, in default, to suffer further simple imprisonment for a period of 6 (six) months.
37. Accordingly, this appeal is partly allowed to the extent above.
38. We mention our appreciation for the services rendered by Ms. Bijita Sarma, learned Amicus Curie and direct that an amount of Rs. 7,500/- be paid to her as remuneration by the State Legal Services Authority, Assam.
39. Registry shall furnish a free copy of this Judgment to the accused appellant through the Superintendent of District Jail, Golaghat, Assam for his necessary use.
40. Registry shall return the records of the Trial Court to the Court of learned Additional Sessions Judge, Golaghat with a copy of this Judgment.
JUDGE JUDGE Comparing Assistant