Hemanta Das vs State of Assam

P.G.Agarwal, J.—Heard Mr. J.M. Choudhury, learned senior counsel for the appellant and Mr. P. Bora, learned Public Prosecutor for the respondents.

This appeal is directed against the judgment and order dated 24.6.2002 passed by the Sessions Judge, Bongaigaon in Sessions Case No. 81(A)/99 whereby the accused appellant has been convicted and sentenced.

Smti. Rupa Bala Das since deceased was the daughter of the informant Nara Mohan Das and she was given in marriage to the accused appellant and out of the said wedlock, three children were born to her. The unfortunate incident took place on 17.7.97 and according to the prosecution the accused assaulted his wife with an iron axe causing instantaneous death. The accused appellant was tried by the Sessions Judge, Bongaigaon and vide impugned judgment the trial court convicted the accused appellant under Section 302 IPC and sentenced him to imprisonment for life and to r)ay a fine of Rs. 3000/ in default further imprisonment for one month. Hence, the present appeal.

In the present case, we find that during trial prosecution examined as many as 13 witnesses and produced and exhibited 11 documents. The defence examined two witnesses and produced one document. PW 10 is Dr. R.N. Deka, who held the autopsy over the dead body of the deceased Rupa Bala Das aged about 26 years and found the following injuries on her person:

"Injury : An incised injury 3" x 1/2" x 3/4" is seen from the occipital region with the involvement of occipital bone.

Another incised wound 3" * 1 " x 1" is seen upper part of the left side of the neck with the involvement of sternoomastoid muscle and great vessels of the neck.

Another incised wound l" x 1/2" x ''A" is seen in the upper part of the left side of the neck.

The incised wound l"x 1/2"x''/2" is seen over the right side of the chest just below the breast.

On examination of the scalp spinal canal Membrane are torn along the line of fracture of the occipital bone (already described). Blood clots are seen over the occipital region.

On examination of the Thorax found Injuries as described earlier. On examination of heart all the chamber of the heart were found empty. On examination of the abdomen found some full and partial digested food materials. Liver, spleen, kidney, bladder usehealthy, uterior i.e is of normal size.

The injuries described are ante mortem in nature. Antemortem blood clots are adherent to the margin of injuries."

In the opinion of the doctor, the death was due to shock and haemorrhage resulting from the injuries sustained. The doctor has further opined that the injuries were sufficient to cause death in the ordinary course of nature and the above injuries could have been caused by the material Ext. 1 the axe.

In view of the medical evidence which has not been challenged and other oral evidence on record, the trial court rightly held this to be a case of homicide and the death of the deceased as a result of the injuries sustained by her has not been disputed or challenged before us.

In this case, we find that PW 1, PW 2, PW 3, PW 5, and PW 6 have been declared hostile by the prosecution and there is no eyewitness to the occurrence that is no one saw the deceased being assaulted. The entire prosecution case rests on the circumstantial evidence and the judicial confession Ext. 5 recorded by PW 9. We have perused the statement of DC Chetia PW 9 who had recorded the confessional statement and we find that the learned Magistrate had taken the necessary precaution and recorded the confessional statement after complying with the requirements of law and the guidelines given. The accused was produced before him on 1.9.97 and thereafter he was sent to j ail custody and the confession was recorded on the next day after giving ample time for reflection. The assurance that even if the accused declines to confess he will not be sent to the police was also given and the learned Magistrate was satisfied that the accused is making the confessional statement voluntarily.

In this case, we find that the making of the confession as such is admitted by the accused in his statement under Section 313 Cr.P.C. wherein the accused has admitted his signature in Ext. 5. The accused has come up with the plea that he was assaulted by the police and he did not remember as to what he had stated before the Magistrate. On perusal of the materials available on record, we have no hesitation whatsoever to hold that the confessional statement Ext. 5 was made voluntarily. The relevant portion of the confession reads as follows:

"In the morning of July 17,1 had an altercation with my wife Rupa Bala Das. She was of loose character. I was lying on bed. Rupa Bala Das stabbed me in the belly with a dagger. In order to save my life, I struck her in the head with anaxe that I found nearby. I did not notice where the blow landed, later I came to know that Rupa had died."

In order to base conviction on the basis of the confessional statement, it is required to meet the twin requirement of voluntariness and truthfulness. From the confessional statement we find that the accused assaulted the deceased with an axe and we find that there is medical evidence on record to corroborate the above. Further the axe was seized by police when they found it lying near the dead body and the doctor also opined that the injuries on the person of the deceased could have been caused by the said axe. The other circumstances that has been brought against the accused is regarding the recovery of the axe which the accused has admitted to be his in his statement under Section 313 Cr. P.C. Further the accused has claimed that he had sustained injury on his belly and the above injury was allegedly caused by the deceased. There is oral evidence on record to show that the accused in fact sustained injury on his person and immediately after his apprehension he was sent to hospital for treatment. Although the medical evidence as regards the exact nature of the injury is not available, the fact that the accused sustained injury as claimed by him stands fully established. As stated above, the factum of death of Rupa Bala Das wife of the accused is also established from the evidence on record and thus there is material corroboration to the statements made in the confessional statement Ext 5 to show that the statement is true.

Besides the confessional statement there is another strong circumstantial evidence appearing against the accused. The wife of the accused was found dead in the house, which belonged to the accused and the said house was used by the accused to live along with his wife and minor children. The accused was present in the house at the time of incident and later on he was seen going out with injuries on his person. The accused has not been able to explain the above circumstance appearing against him and the trial court has considered the said circumstance along with the confessional statement to hold the accused guilty for killing his wife.

The law regarding basing conviction on the basis of confessional statement has been more or less well settled and we do not propose to restate the law on this point. However, the question as to why the offence has been committed by the accused or the act of the accused will amount to murder or not, shall be considered tit a later stage.

We propose to first of all consider the plea of insanity raised by the accused before the trial court. During trial the accused examined himself under Section 315 Cr.P.C. and examined another witness to show that the appellant was suffering from insanity. Ext. A is the medical certificate produced by him and DW 2 claims to be a practising Kabiraj who had treated the accused appellant. We have also perused the evidence of DW 1 and DW 2 and Ext. A reads as follows:

"This is to certify that Shri Hemanta Das was treated as an outdoor patient in Deptt. of psychistry of Medical College Hospital, Guwahati from 19.6.97 to 13.8.97 and was suffering from Nerum Disorder."

The doctor who had issued Ext. A has not been examined before the Court and Ext. A was issued on 18.2.2000 that is after three months of the alleged treatment. On perusal of Ext. A, and the evidence of the accused appellant we find that the defence has not been able to established any legal insanity. Ext. A may be a case of medical insanity and as we know medical insanity is not a defence in a criminal trial and the defence is required to establish that at the relevant point of time the accused appellant was suffering from legal insanity. In absence of any evidence to the effect the trial court rightly rejected the plea of insanity. The learned counsel for the appellant has submitted that when conviction is based on the confessional statement, the entire confessional statement is to be taken as a whole and the court cannot exclude certain part out of it. If we read the confessional statement as quoted above we find that the accused had made a specific plea that he assaulted his wife to defend himself from the assault of his wife and he had sustained injuries. The fact that the accused sustained injury has also been stated by other witnesses although there is no medical evidence as regards the exact nature of the injury sustained by the accused appellant. Moreover, the burden of the defence to establish his plea is not that heavy as that of the prosecution and hence we do find force in the submissions that the accused had acted in defence of his right of person when he was assaulted by his wife. The question therefore arises as to whether the right of the accused extended to causing death. Section 100 IPC reads as follows :

"100. When the right of private defence of the body extends to causing death. The right of private defence of the body extends, under the restrictions mentioned in the last preceding Section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely :

FirstSuch an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

SecondlySuch an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault

ThirdlyAn assault with the intention of committing rape;

FourthlyAn assault with the intention of gratifying unnatural lust;

FifthlyAn assault with the intention of kidnapping or abducting;

SixthlyAn assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release."

In order to bring home the case of the accused appellant within clause First and Second of Section 100 IPC the burden was on the accused but we find that there is no evidence on this point that the assault was of such nature that the accused apprehended that he may be killed or grievous injury may be caused to him. The accused was in the witness box and he did not take up this plea of right of private defence on the contrary he claimed insanity. Hence in absence of any medical evidence on record as regards the nature of the injury sustained by the accused and considering the injuries caused by the accused to the deceased, we have no hesitation to hold that the accused had exceeded his right of private defence which never extended to causing death of the deceased.

In the above circumstances, the act of the accused will not amount to commission of offence of murder but will constitute an offence punishable under Section 304 PartII IPC.

In the result the conviction is modified and altered to one under Section 304 PartII IPC.

We have heard the learned counsel for the appellant and the learned Public Prosecutor on the point of sentence.

We sentence the accused appellant to imprisonment for five years and to pay a fine of Rs. 1000/ in default further imprisonment for one month. The period undergone by the accused shall be set off under Section 482 Cr.P.C.