Judgment · High Court · 2012

#5. Having, however, found the accused guilty of the offence charge with, th e learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence passed against him, the accused, convicted person, has preferred this appeal.

#6. rned Additional Public Prosecutor, Assam. We have heard Mr. K Das, learned Amicus Curiae, and Mr. KA Mazumdar, lea

#7. Before we enter into the discussion of the incriminating circumstances a ppearing against the accused-appellant, we may pause to refer to the evidence of the doctor (PW8), who admittedly, conducted the post mortem examination, on 19- 11-2005, on the dead body of Putul Mahato, aged about 19 years. According to the evidence of the doctor (PW8), the injuries found on the said dead body were as follows: (cid:28)Injury No. 1 - One oblique cut injury present over the right shoulder size 3 c m x 1 cm x muscle deep. Injury No. 2 - One cut injury present in the hand over the occipital bone, size 10 cm x 4 cm x brain deep. Occipital bone of the brain lacerated. Injury No. 3 - Cut injury present on vault of the hand, size 10 cm x 4 cm x brai n deep underneath parietal lobes of the brain lacerated. (cid:29)

#8. In the opinion of the doctor (PW8), the cause of death was coma due to he ad injury. The doctor also opined that all the injuries were ante mortem and hom icidal in nature and the same were caused by a heavy sharp cutting weapon and th at the injuries were sufficient to cause death of a person in the ordinary cours e of nature.

#9. The defence declined to cross-examine the doctor. As a result thereof, th e entire evidence of the doctor (PW8) went unchallenged by the defence. This apa rt, we, too, do not notice anything inherently incorrect, untrue or improbable i n the evidence given by the doctor (PW8). There is no reason, therefore, to doub t the veracity or correctness of the evidence given by the doctor and or his opi nion with regard to the nature of injuries, which had been sustained by the said deceased, the nature of weapon, which could have been used for causing the said injuries, and also the cause of death. Bearing in mind, therefore, the medical evidence on record as discussed 10. above, we, now, come to the evidence of PW2 and PW3. A combined reading of the e vidence of PW2 and PW3 shows that deceased Putul was the wife of the accused-app ellant and both of them had come, on a social visit, from a place called Poornea in Bihar, to the house of PW1 and PW3, who are married to each other, deceased Putul being the niece of PW3. While staying at the house of PW1 and PW3, as indi cated hereinbefore, the accused-appellant brought, on 18-11-2005, meat to the ho use of PW1 and PW3 and asked his wife, Putul, to cook the same. As Putul was obs erving some religious fast, she declined to cook the meat and PW3, then, asked h er maid servant (PW2) to cook the meat. When PW2 was cooking the meet, an alterc ation took place between the accused-appellant and his wife. The accused-appella nt, then, picked up an axe and gave blows with the same on Putul, who fell down and died. The accused-appellant, then, went back to his room and PW2 bolted the door of the said room from outside. As PW3, being in bath room, had not seen the assault taking place on Putul at the hands of the accused-appellant, PW2 inform ed PW3 as to what the accused had done.

#11. Though both PW1 and PW3 were cross-examined by defence, except eliciting from the cross-examination of these two witnesses that the incident had taken p lace at the verandah, where there was darkness, nothing material could be elicit ed by the defence to show that the evidence of PW2, whose evidence we have alrea dy discussed above, was either false or unsafe to place reliance upon. There was , strictly speaking, no effective cross-examination of PW2 and PW3 and/or their unshaken evidence clearly prove that the accused, on 18-11-2005, while staying a t the house of PW1 and PW3, brought meat and asked his wife to cook the same; bu t as Putul, wife of the accused, was observing a fast, she declined to cook the meat and though PW3 asked her maid servant (PW2) to cook the meat and PW2 starte d cooking the meat, an altercation took place between the accused and Putul. Fol lowing this altercation, the accused, suddenly, picked up an axe and gave blows with the same on Putul and Putul, having suffered, as clearly seen from the medi cal evidence on record, cut injuries on her head, died on the spot.

#12. Coupled with the above, the evidence of PW3 is that when her husband (PW 1) returned home at about 10.00 pm, she informed her husband about the occurrenc e. This piece of evidence also went undisputed by the defence. The evidence on r ecord also makes it clear that PW1, in turn, informed the police by lodging an F IR and the Investigating Officer (PW11) visited the house of PW1 and, apart from arresting the accused and holding inquest over the said dead body, the Investig ating Officer (PW11) seized the axe, which the accused-appellant had used for th e purpose of assaulting his wife. Unfortunately, though, the seized axe was neve r sent for serological examination by the Investigating Officer, the evidence, a s given by PW2 and corroborated by PW3, leave no room for doubt that it was none , but the accused-appellant, who had assaulted, by means of an axe, his wife, Pu tul, in the manner as described above leading to her death.

#13. Though Mr. K Das, learned Amicus Curiae, has referred to the case of Sal im Salhab -vs- State of M.P., reported in (2007) 1 SCC 699 and Ramkrishan S/O Ma dhav Shelke -vs- State of Maharashtra, reported in (2007) 3 SCC 89, we do not fi nd that the law, laid down in Salim Salhab (supra) and Ramkrishan (supra), help the case of the appellant inasmuch as both the cases, relied upon by the learned Amicus Curiae, were on Exception 4 embodied in Section 300 IPC. In the case at hand, though there was an altercation between the accused and his wife, there wa s no ’fight’ between them and, in the absence of any ’fight’, Exception 4 is not attracted inasmuch as Exception 4 clearly lays down that culpable homicide is n ot murder if it is committed without premeditation in a sudden fight, in the hea t of passion, upon a sudden quarrel and that too if the offender has not taken t he undue advantage or has not acted in a cruel and unusual manner.

#14. We can also not ignore the fact that the weapon, which had been used by the accused-appellant, was deadly in nature and the part of the body, which he h ad selected, was head of his wife. The nature of weapon, which had been used, th e number of blows, which had been given on the head of Putul, and the vital part of the body, where the blows were given, all go to prove beyond reasonable doub t that the accused-appellant intended to cause death of his wife and he did, ind eed, succeed in what he had intended. The accused-appellant was, thus, in our co nsidered view, rightly convicted under Section 302 IPC. We also do not find that the sentence, which has been passed on the accused-appellant, is harsh, excessi ve, illegal or improper. We, therefore, find no merit in this appeal.

#15. In the result and for the reasons discussed above, the appeal fails and the conviction and the sentence, which have been passed against him by the judgm ent and order, under appeal, are hereby upheld. The appeal shall accordingly sta nd dismissed.

#16. stance rendered to this Court. Let the Amicus Curiae be paid a sum of Rs. 5,000/- for his valuable assi

#17. Send back the LCR with a copy of this judgment and order.