302 IPC converted to 304 part II IPC. Husband killed his wife finding her in compromising position with stranger, sentenced to 5 year R.I.

Indian Penal Code, 1860 Section 302 Murder Alteration of conviction – Accused found his wife in a compromising situation with a stranger – Lost his sense and in a fit of anger, had assaulted his wife by the bamboo stick – Did not further assault his wife so as to cause her instantaneous death but remained near her – Conviction under Section 302, I.P.C. converted to under Section 304 Part-II, I.P.C. – Sentenced to period already undergone i.e 5 years.

GAUHATI HIGH COURT

(DB)

Before:- Mr. Mir Alfaz Ali and Mr. Manish Choudhury, JJ.

Crl.A. 110 of 2017. D/d. 08.01.2020.

Munsi Bhuyan S/o Late Deobor Bhunya – Petitioner

Versus

The State of Assam and Another – Respondent

For the Petitioner:- Mr.T Chakraborty, Advocate.

For the Respondent:- PP, Assam.

er:- Mr.T Chakraborty, Advocate.

For the Respondent:- PP, Assam.

JUDGMENT AND ORDER

Mr. Manish Choudhury, J. (Oral) – Heard Mr. P. Dutta, learned counsel for the appellant. Also heard Ms. S. Jahan, learned Additional Public Prosecutor for the State and Ms. P. Misra, learned counsel appearing for respondent no. 2-informant.

2. This appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (Cr.P.C), is directed against the judgment and order dated 20.02.2017 passed by the learned Additional Sessions Judge, Golaghat, Assam in Sessions Case No. 131/2015. By the impugned judgment and order, the learned Sessions Judge had convicted the accused-appellant under Section 302, I.P.C. and has sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs. 1,000/-, in default, to undergo simple imprisonment for further 2 (two) months.

3. As per the FIR lodged on 15.02.2015 by one Raghunath Khonal (P.W.1) before the officer In-Charge, Uriamghat Police Station, on 15.02.2015, at about 08.00 p.m., the accused-appellant was found assaulting his wife (the deceased) at his home and upon hearing the screams of his wife, the neighbourhood people as well as the informant went to the place of occurrence. On reaching there, the people including the informant, saw the accused-appellant beating his wife with a bamboo stick. Thereafter, the deceased was rescued somehow in an injured condition and the police was informed over phone. The police upon arrival at the place of occurrence, sent the deceased to Sarupathar Hospital immediately. However, at about 11.00 p.m., the informant was informed that the deceased succumbed to her injuries in the meantime and when she was brought to Sarupathar Hospital she was already dead. The accused-appellant was arrested from the place of occurrence. Upon receipt of the said FIR, the Uriamghat Police Station Case No. 11/2015 was registered and P.W.7 was entrusted to conduct the investigation. In the course of investigation and after holding inquest over the dead body, the Post-Mortem Examination Report was done by P.W.6 at K.K. Civil Hospital, Guwahati. The statements of the witnesses were recorded by the Investigation officer. Finding a prima facie case under Section 302, I.P.C. against the accused-appellant, the Investigation officer submitted a charge sheet on 25.04.2015. The committal Magistrate after securing production of the accused-appellant from judicial custody complying with the procedure prescribed under Section 207, Cr.P.C., by order dated 01.10.2015, committed the case to the Court of Sessions, Golaghat as the case was found exclusively by the Court of Sessions. On receipt of the case records, the learned Sessions Court framed charge against the accused-appellant under Section 302, I.P.C. On the said charge being read over and explained to the accused-appellant, the accused-appellant pleaded not guilty and claimed to be tried.

4. During the course of the trial, the prosecution side in order to bring home the charge against the accused-appellant, examined 7 nos. of witnesses and exhibited 6 nos. of documents. Thereafter, the accused was examined under Section 313 Cr.P.C. putting the incriminating circumstances found against him wherein, the accused denying the same, stated that he would adduce defence evidence. Thereafter, the accused examined himself as a defence witness, D.W.1. Upon appreciation of the evidence brought on record by the parties, the learned Sessions Court convicted and sentenced the accused-appellant as has been indicated above.

5. The learned counsel for the accused-appellant has submitted that the prosecution witnesses other than the doctor, who conducted the Post Mortem examination and the Investigating officer, had deposed in similar lines about the alleged incident. He submits that though the incident of assault could be held to be true but the same cannot be considered to be a case of murder coming within the purview of Section 302, I.P.C. Referring to the defence evidence, he submits that the incident of assault had occurred on grave and sudden provocation and there was no pre-meditation on the part of the accused-appellant. In such view of the matter, he submits that the conviction of the accused-appellant should be converted from under Section 302, I.P.C. to 304 Part-II, I.P.C. It is submitted by the learned Additional Public Prosecutor that it is established from the evidence on record that due to the assault on the part of the accused-appellant, the deceased who was his wife, had succumbed to the injuries. The story projected by the accused-appellant as a defence witness are not acceptable and the same should be discarded and taken out of the purview of consideration. The submission of the learned Additional Public Prosecutor has been supported by Ms. Misra appearing for informant-respondent no. 2.

6. We have considered the submissions of the learned counsel for the parties and also perused the materials available on record of the Sessions Case No. 131/2015, in original.

7. P.W.1 is the informant who had lodged the ejahar on the date of the incident i.e. 15.02.2015. P.W.2 is the wife of P.W.1. P.W.1 deposed, inter-alia, to the effect that on the date of the incident, at around 07.30 p.m., he was having meal with the other members of his family. Having heard hue and cry from the house of the accused-appellant, he and the members of his family came out and went to the house of the accused-appellant wherein they saw the deceased lying in the courtyard in an injured condition with the accused-appellant, with a lathi in his hands, moving around the deceased. When P.W.1 tried to approach near the deceased, he was prevented by the accused-appellant to come near the deceased. Thereafter, hearing the commotion, lot of people assembled there. P.W.1 stated to have informed the Village Headman over telephone about the incident and as per the instruction of the Village Headman, he informed the Police and called ambulance service. The Police upon arrival at the place of occurrence, apprehended the accused and the deceased was sent to hospital for treatment. He further stated that at that time, the deceased was alive but was not in a condition to speak. A bamboo stick (Material Ext.-1) was seized in his presence by a seizure list (Ext.- 2) where he signed as a witness. In his cross-examination, he deposed that he did not witness the act of assault on the deceased by the accused-appellant. On his arrival at the place of occurrence, he also saw the presence of P.W.3. P.W.2 who is the wife of P.W.1, had corroborated the statements of P.W.1 in material particulars.

8. P.W.3 who is also a neighbour of P.W.1 and P.W.2 and also of the accused-appellant, had also deposed in similar lines like P.W.1. He stated that having heard hue and cry, he came out of the house and saw the deceased lying in the courtyard of her house with the accused-appellant with a bamboo stick in his hands, moving around her. Though he tried to come inside the compound of the accused-appellant, the accused-appellant prevented him from doing so. He also like P.W.1, had admitted that he did not see as to who had assaulted the deceased, but had said that he was the first person to reach the place of occurrence.

9. P.W.4 who is the daughter-in-law of the accused-appellant and the deceased, and P.W.5, a neighbour, also deposed in similar lines as regards finding the deceased lying in the courtyard with the accused-appellant hovering around her with a lathi in his hands. The evidence of these prosecution witnesses about their reaching the house of the accused-appellnat and finding the deceased lying in the courtyard of the house of the accused-appellant with him near her with a bamboo stick in his hands, had remained unshaken.

10. P.W.6, the doctor who conducted the Post-Mortem Examination on the dead body of the deceased on 16.12.2015 at K.K. Civil Hospital, Golaghat had found the following injuries :

As regards the cause of the death, he opined that the death was due to shock and haemorrhage as a result of the injuries sustained by the deceased. The defence declined to cross-examine this witness.

11. The Investigating officer (P.W.7) had deposed about the investigation carried out by him. He deposed that he seized one bamboo stick from the possession of the accused-appellant in presence of witnesses and he exhibited the same as Material Ext.-1. He deposed about conducting the inquest on the dead body of the deceased vide Ext.-5 through the Executive Magistrate and thereafter, sending the dead body for Post-Mortem examination.

12. After denying the case of the prosecution in his examination under Section 313, Cr.P.C., the accused-appellant deposing as D.W.1, had stated that at around 07.00 p.m. on the day of the incident, he returned from Chennai. Thereafter, he along with his two sons went out for shopping and he after an hour, returned home alone. Thereafter, he went to the shop of P.W.1 and remaining there for about half an hour, he returned home again. Reaching home, he saw none in the house except his younger son sleeping. When he opened the rear door of his house, he saw one Moniram Bhuyan having sexual intercourse with his wife by laying her on the ground. Seeing his entry, Moniram Bhuyan ran away and he taking a bamboo stick with him, chased Moniram Bhuyan but failed to catch Moniram Bhuyan. After he returned home, a quarrel ensued between his wife and him and then he assaulted his wife with the bamboo stick. As it was dark at the time of the incident, he could not see in which parts he inflicted the blows but he stated to have inflicted blows in a fit of anger and emotion.

13. From the testimonies of the prosecution witnesses, it has emerged that at the relevant time, the deceased was found lying in the courtyard of her house in an injured condition and the accused-appellant was also found near her with a bamboo stick in his hands. From the trend of the cross-examination of the prosecution witnesses, we have found that the defence did not make efforts to deny that part of the evidence. The learned counsel for the appellant in his submissions, has also not denied the said part of the evidence. In fact, the accused-appellant in his evidence had also admitted about assaulting his wife with a bamboo stick. The said fact of injuries have also found corroboration from the evidence of the autopsy doctor (P.W.6) and the Post-Mortem Examination Report (Ext.-3). The deceased was found to have received one lacerated would over right temporal region which resulted in the fractures of right temporal bone, right maxilla bone and right humerus bone, apart from the fracture of the right ulna bone. From the evidence of the prosecution witnesses, it has not emerged that the deceased when found lying in the courtyard, was not in a position to speak.

14. We have also found that the testimony of the accused-appellant that there was a quarrel which took place between him and his wife just before he assaulted his wife, had been unchallenged by the prosecution side during his cross-examination. The reason of the said quarrel ensued between him and his wife, had been stated to be the untoward situation of finding his wife in a compromising situation with a stranger. He had projected that as he had returned from Chennai on the date of the incident itself he having found his wife in such a situation, had lost his sense and in a fit of anger, had assaulted his wife by the bamboo stick which he took in his hand, having seen the stranger inside his house along with his wife. It has also emerged from the evidence on record that when after being assaulted, the deceased was lying in an injured condition in the courtyard, he despite having opportunity to inflict further blows, did not further assault his wife so as to cause hear instantaneous death but remained near her in which condition the prosecution witnesses had found him when they reached the place of occurrence. As it has emerged that nobody had seen the actual act of assault on the deceased by the accused-appellant and the evidence is only to the point of time immediately after assault, the accused-appellant by adducing evidence which has not been tested by prosecution side, had provided an explanation as to why he had assaulted his wife with the bamboo stick in his hands and despite having the opportunities to cause instantaneous death, he stopped short from committing the same when he found his wife lying in injured condition. The accused-appellant by providing the explanation had sought to probabilise the cause of his assaulting his wife in a fit of anger having lost the sense due to grave and sudden provocation resulted from an untoward situation he least expected to face, he had no intention of causing death to his wife to commit the offence of murder.

15. In view of the evidence that has emerged on records and in the light of the discussions made above, we are of the considered view that the accused-appellant cannot be convicted for the offence of murder under Section 302, I.P.C. As it appears that there was no pre-meditation on the part of the accused-appellant and it was in the heat of passion upon a sudden quarrel he had inflicted his wife, the act of the accused-appellant does not appear to be a case of murder but amounts to culpable homicide not amounting to murder coming within the purview of Section 304 Part-II, I.P.C.

16. In view of the same, we set aside the conviction of the accused-appellant under Section 302, I.P.C. and the sentence passed thereon. Considering the entire fact situation, we deem it appropriate to convict him under Section 304 Part-II, I.P.C. It is submitted at the bar that the accused-appellant is in custody since the date of his arrest i.e. 15.02.2015 till date. Having considered the period of detention of the petitioner since 15.02.2015, we order that the period already undergone by the accused-appellant would meet the ends of justice. Accordingly, we sentence him for the period already undergone.

17. With the above observations and directions this appeal stands partly allowed. We, however, do not interfere with that part of the direction made by the learned Sessions Judge as regards compensation payable under Section 357A, Cr.P.C.

18. As the accused-appellant has already undergone the sentence, he be set at liberty forthwith if he is not required in connection with any other case.

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