Jiten Rabha vs State Of Assam And Anr

AM Bujor Barua, J

Heard Ms. Meghali Barman, learned Amicus Curiae for the appellant. Also heard Mr. M Phukan, learned Additional Public Prosecutor, Assam appearing for the State of Assam.

The office note dated 18.06.2019 provides that the service report from the Officer-in-Charge of Chayygaon Police Station indicates that the informant/respondent No.2 had been duly served.

An ejahar dated 07.06.2005 was lodged by Kameswar Rabha being the Village Headman of Phalaghat village, inter alia, stating that around 6 P.M., on the given day, the son-in-law, Jiten Rabha had caused severe injury to his father-in-law, Narmeswar Rabha by hitting him with an axe following a quarrel. The ejahar was lodged by the informant, being the Village Headman of the concerned village. Accordingly the appellant was charged of intentionally causing the death of Narmeswar Rabha thereby committed an offence under Section 302 of the IPC.

PW-11, Dr. Gitimala Das who had conducted the post mortem examination on the deceased had deposed that the following injuries were found:

"1. Stitch wound present in left side below left lower eye lid of size 3cm in length.

Black eye present in left side.

Lacerated stitch wound in right parietal region 5 cm in length (5 stitches in situ)

Abrasion of size 7 cm x 5 cm in right side of back of shoulder joint.

Stitch would in right upper part of occipital region of length 6cm (6 stitches in situ)."

An opinion was also expressed that the death was due to coma resulting from head injury. All the injuries were ante-mortem and caused by blunt force impact. The prosecution relies upon the evidence of PW-2 and PW-5, who according to them are eye witnesses to the occurrence.

PW-2, Jiten Rabha in his deposition stated that he knows the accused Jiten Rabha as well as the deceased Narmeswar Rabha. He stated that the incident took place about 10/11 months ago and at the time of occurrence, the accused lived in the house of the deceased person as "gharjowai".

In his deposition, it is stated that at the time of the incident, PW-2 was present in the place of occurrence which took place around 8P.M., and that the occurrence followed a quarrel and the accused had hit Narmeswar on his head.

In cross, PW-2 stated that the police had not interrogated him, although to a suggestion, he stated that it is not a fact that he was not present at the place of occurrence when the incident took place.

The statement of PW-2, in cross, that the police did not interrogate him also implies that no statement under Section 161 Cr.P.C. of the PW-2 was taken by the Investigating Officer.

PW-5, who is the wife of the accused Jiten Rabha as well as the daughter of the deceased Narmeswar Rabha in her deposition had stated that she and the accused had lived in the house of her father. At around 8.30 P.M., on the day of the occurrence, a quarrel took place between her and the accused in which the father had interfered and upon such interference the accused pointed his finger at her father. PW-5 specifically stated that at that moment, PW-2 was also present in her house. PW-5 also stated that then the accused had hit her father on his head with an axe and her father fell down. Further the public along with PW-2 had caught the accused and kept him tied. At the time of the incident, PW-5 stated that she had her two years old son present at the place of occurence.

In cross, PW-5 stated that police had interrogated her and to a suggestion she had stated that it is not a fact that she did not tell the police that PW-2 was present at the place of occurrence when it took place.

Although the evidence rendered by PW-2 cannot be accepted inasmuch as no such statement was given by the PW-2 before the Investigating Officer at the time of investigation, but the evidence rendered by PW-5 in her deposition is found to be unconfronted by the defence in any manner. No question was put to the Investigating Officer that the PW-5 had not stated so before him at the time of investigation.

PW-5 stated that there was a quarrel between her and the accused, who was her husband. Prior to the occurrence, at around 8.30 P.M., on the given day when the deceased father interfered in such quarrel, the accused pointed his fingers at him, then the accused had hit the deceased father on his head with an axe and he fell down. When we look at the evidence of the PW-11, Doctor, we take note of that the injuries, more particularly, the injury Nos. 3 and 5 are around the head portion and further there is also a contusion in right front parietal and occipital region as well as left occipital region around the scalp and depressed comminuted fracture in right temporal parietal bone underneath the injury No.3 in the scull. The opinion of the Doctor is also that the death was due to coma resulting from head injury and the injuries were caused by blunt force impact.

We find that the report of the injuries sustained by the deceased are consistent with the evidence rendered by PW-5 in her deposition as regards the injuries caused on the head of the deceased. In the absence of any further material to conclude otherwise in a situation where the evidence of PW-5 remains unconfronted, we are constrained to accept the eye witness account of PW-5 that it is the accused alone who had inflicted the fatal blows on the head of the deceased resulting to his death.

The nature of the injuries sustained and the manner in which it was inflicted with an axe by giving a blow on the head of the deceased shows that the accused in doing the act had the intention to cause the death of the deceased. It being so, the act of the accused appellant would come within the purview of Section 300 of the IPC, but again the evidence of PW-5 itself shows that there was a prior quarrel between the accused and the PW-5 who happened to be the daughter of the deceased and thereafter when the deceased came forward and interfered in the quarrel between the accused and the PW-5, the attention of the accused in the quarrel shifted to the deceased, thereafter, the fatal blow was inflicted by the accused on the head of the deceased.

Accordingly, we are of the view that the act of the accused appellant can be brought within the purview of Exception 5 to Section 300 of the IPC. Hence, the accused appellant would not be guilty under Section 304 of the IPC. But as already concluded that as the fatal blow was inflicted by the accused appellant with the intention to cause the death, we are of the view that the accused appellant would be guilty for an offence under Section 304 Part I of the IPC by following the proposition propounded by the Supreme Court in the State of Madhya Pradesh Vs. Kalicharan & Ors.

Accordingly, we convict the accused appellant under Section 304 Part I of the IPC. It is stated that the accused appellant had been in prison since the date of the judgment i.e. 17.03.2007 meaning thereby that it is now more than 12 years that the accused appellant is in prison. It is stated that if the period of imprisonment undergone by the accused appellant prior to his conviction is taken into consideration, the total period comes up to 14 years 1 month and 17 days.

As we have convicted the accused appellant under Section 304 Part I of the IPC, we accordingly sentence him to undergo imprisonment for 10 years and also reduce the fine imposed on him to Rs.1000/- in default thereof further rigorous imprisonment for 1(one) month.

If the authorities find that the appellant had already undergone the period for which he had been sentenced, he be released forthwith, provided he is not required in connection with any other case.

The appeal stands allowed to the extent indicated hereinabove.

16 . Send back the LCR.

Before parting with the record, we appreciate the valuable service rendered by Ms. Meghali Barman, learned Amicus Curiae. Accordingly, it is directed that an amount of Rs.7,500/- as legal fees be paid to her by the High Court Legal Service Committee upon production of a copy of this judgment and order.