Judgment · High Court · 2012

#2. Heard Ms. A Begum. Learned Addl. PP, Assam appearing on behalf of the re spondent. Mr. D Talukdar, learned counsel has appeared on behalf of the appellan t.

#3. The prosecution case, in brief, is that the accused appellant Smti. Dipa li Bora killed her husband Suren Bora inflicting blows by means of a dao. Therea fter, she appeared before Rowriah Police out post alongwith her son Milan Jyoti Bora. She handed over the dao to the In-charge of the Rawriah Police Out Post, w ho was present, at the outpost alongwith an A.S.I. named Hema Dutta, who seized the dao in presence of other police and independent witnesses. A.S.I. Hema Dutta after preliminary investigation lodged a formal police ejhar in writing. The co ntents of the FIR shows that the accused was living alongwith the deceased as hi s wife since 1993. She was subjected to torture and harassment by her husband an d that she left her matrimonial home alongwith her three childrens. Subsequently , the deceased brought her back with assurance that she will not be tortured in future. She joined the society of her husband but again she was treated cruelly by the husband. When the harassment and torture became un-bearable, on 7.8.2005 at about 9 P.M. she inflicted dao blows on her husband while he was sleeping in house and thereafter she surrender before the police alongwith the dao. On recei pt of the formal F.I.R., Jorhat PS Case No. 274 of 2005, under Section 302 of IP C was registered. Police visited the place of occurrence. Inquest and post morte m examination of dead body was held. After the preliminary investigation, the ca se was charge-sheeted under Section 302 of IPC against the accused. The accused confessed her guilt before the police and she was forwarded 4. to the court to record her confessional statement under 164 Cr.P.C. In her confe ssional statement, the accused took the plea of self-defense. The prosecution ex amined all together 10 (ten) witnesses. The accused in her statement under 313 C r.P.C. admitted that she surrendered at the out post after causing hurt on her h usband. On conclusion of trial the accused was held guilty under 304 part (II) o f IPC and she was sentenced accordingly as stated earlier. None except Milon Jyoti Bora, son of the deceased and accused witnessed PW 1 (Dr. Buddhadev Dutta) performed the post mortem examination on the

#5. the occurrence. He adduced his evidence as defence witness. 6. dead body of Suren Bora on 8.8.05 and his findings are as follows: (cid:28)1. Healthy male dead body. Rigor mortis present. 2. One incised wound present over dorsal 1/3rd of right joint metacarpal bone.( 1 (cid:29)x1/2 (cid:29)x1/2 (cid:29)) 3. One incised wound present over ulna side of right wrist joint and is bleedi ng.(2 (cid:29)x1/3 (cid:29)x1/4 (cid:29)). 4. One incised wound present over back of right elbow and is bleeding .(2 (cid:29)x1 /2 (cid:29)x1/3 (cid:29)) 5. One incised wound present over back of closure of left hand (2 (cid:29)x1/2 (cid:29)x1/4 (cid:29)) 6. One incised wound present over trachea below crisoid cartilage (2 (cid:29)x1/2 (cid:29)x ‰ (cid:29) ). Bleeding from adjacent side. WALLS,RIBS AND CARTILAGE 1.One incised wound over left scapula (2 (cid:29)x1/2 (cid:29)x ‰ (cid:29)).Blood clot is seen. 2. One incised wound (3 (cid:29)x1/2 (cid:29)x … (cid:29)). Bleeding present into adjacent membranes. 3. One oblique incised wound present over upper thorsaic space (3 (cid:29)x1/2 (cid:29)x1/4 (cid:29)) B leeding present into adjacent membranes.

#4. One incised wound present over interior angle of left scapula (2 (cid:29)x1 (cid:29)x1/3 (cid:29)). Bleeding present into adjacent structures.

#5. One transverse incised wound present in front of trachea below cervical carti lage. Trachea is cut across. Bleeding present into adjacent structures. All th e other organs are healthy. MORE DETAILED DESCRIPTION OF INJURY OR DISEASE All the injuries were ante-mortem in nature . Incised wound over trachea is sufficient to cause death of the deceased. All the injuries are caused by heavy sharp cutting weapon. (cid:29) In the opinion of the doctor the injuries were ante mortem in nature and the incised wound over and trachea is sufficient to cause death of the deceased . The injuries were caused by heavy sharp-cutting weapon. The cause of death was syncope as a result of the injuries sustained by the deceased. The findings of the doctor were not challenged by the defences during his cross-examination. PW2, Manik Chandra is a neighbour of the deceased. He did not see the o 7. ccurrence. Similarly PW 3 Bina Barbora Saikia did not witness the occurrence. Ho wever, she stated that the deceased was alcoholic and used to torture and assaul t his wife.

#8. PW4, Smt. Mani Phukan, saw the accused at the police station. He witness ed Seizure of the dao from possession of the accused. The blood stained bed cove r was also seized from the house of the deceased in presence of PW 4. In her cro ss-examination she admitted that the accused was alcoholic and used to torture h is wife.

#9. PW5, Rajib Bora is also a seizure witness. He deposed that the accused s urrendered at police station alongwith a dao. The evidence of PW6 Ganesh Bardolo i is also in the same line.

#10. PW 7, Utpal Kr. Das was the In-charge of Rawriah Police Out Post. The ac cused surrendered at the Police out post and informed that she had assaulted her husband. PW 7 entered the information in the general diary and instructed A.S.I . Hema Dutta (PW 9) to seize the dao. He also directed A.S.I. Dutta to conduct p reliminary investigation, who after preliminary investigation lodged the F.I.R.

#11. PW 8, Mridul Kr. Saikia was a Judicial Magistrate first class at Jorhat . He recorded the confessional statement of the accused under section 164 Cr.P.C . He deposed that on 9.8.05, the accused was produced before him for recording h er confessional statement and after explaining her the consequences of her confe ssional statement, she was sent to Judicial custody for reflection her mind. Ne xt day i.e. 10.8.05 she was again produced before PW 8 at 12 noon. She was agai n cautioned by PW 8 and kept in the court room of PW 8 for 3 hours for reflecti on her mind. Thereafter, after giving statutory warning again her statement unde r section 164 Cr.P.C. was recorded. PW 8 has categorically stated that he being satisfied that she was going to make confession voluntarily, he recorded the con fessional statement. In his cross-examination he stated that confessional statem ent of the accused was recorded at 3 P.M.

#12. PW 9, Hema Dutta is one of the Investigating Officers who also lodged th e formal F.I.R. He deposed that the accused surrendered at Police Station alongw ith a dao. He seized the dao from her possession. He also seized the blood stain ed bed cover of the deceased in presence of the witnesses. When he arrived at th e occurrence, the victim was still alive. He sent the victim to hospital where h e succumbed to his injuries. He drew a sketch map of the site of occurrence. O n completion of preliminary investigation, he lodged the formal F.I.R. and hande d over the supplementary case diary.

#13. PW 10, Samiran Bora witnessed the inquest on the dead body.

#14. The elder son the deceased Milan Jyoti Bora adduced his evidence as defe nce witness. In his evidence he stated that the deceased was alcoholic and under the influence of liquor used to pick up quarrel with him. The deceased was also gambler. He used to quarrel with his mother also who was often beaten by him. A day ahead of the incident his mother was mercilessly beaten by his father. His father asked for money and when she refused to give him money she was assaulted . On the date of occurrence, he woke up hearing in scream. He asked his father why he is assaulting his mother and then his father holding a dao chased him ou t. Later on his mother came out of the house in injured condition. He then came to know that his mother has assaulted his father.

#15. In this case, there is no dispute that accused assaulted the deceased by means of a dao which resulted his death. From the confessional statement of the accused as well as evidence adduced by the prosecution, it appears that the acc used was subjected to torture and harassment by her husband. In the night of occ urrence also she was assaulted by the deceased and thereafter, she snatched away the dao and inflected dao blows on the deceased. The learned trial court rightl y held that the accused did not intentionally cause death of the deceased. The a ccused appellant has been rightly convicted under section 304 part (II) of I.P.C . There is nothing to interfere with findings of the trial Court. 16. ourt is upheld. Send down the LCR alongwith a copy of this judgment. This appeal is accordingly dismissed. The judgment passed by the trial c