Joyram Kerkata vs State Of Assam

Suman Shyam, J

The sole appellant in this case has been convicted under Section 302 of the Indian Penal Code (IPC) and sentenced to undergo Rigorous

Imprisonment for life and also to pay a fine of Rs. 5,000/-with default clause, for committing murder of his father-in-law Bijoy Silonti.

The prosecution case, in brief, is that on 24/10/2014 at around 7-30 p.m., the accused had hacked the deceased Bijoy Silonti to death with an axe.

An Ejahar was lodged on 25/10/2014 reporting the incident to the Officer-in-Charge, Duliajan Police Station by Sri Sukram Rai based on which,

Duliajan P.S. case No. 360/2014 was registered under Section 302 of the Indian Penal Code. The matter was then taken up for investigation, on

completion of which, the Investigating Officer (IO) had submitted charge sheet against the accused. The accused had pleaded not guilty and claimed

to be tried. Accordingly, the case was taken up for trial and eventually, the Court of learned Session Judge, Dibrugarh had passed the impugned

judgement and order convicting the accused under section 302 of the IPC and sentencing him to undergo rigorous imprisonment for life and also to pay

the fine of Rs 5000/-.

The prosecution side had examined as many as 10 witnesses including the informant Sukram Rai, who was examined as PW-1. The PW-1 had

deposed before the court that on the day of occurrence he was at his house when he heard hue and cry raised near the house. At about 7 p.m. he

went out of the house and saw that the deceased was lying on the road with cut injury on his face. According to the PW-1, the deceased was already

dead when he first saw him. The witness had stated that many persons including the V.D.P. members had gathered at the place of occurrence who

had informed the Police and the Police had arrived at the spot at night. On the next morning, the PW-1 had lodged an Ejahar written by his sonâ€"in-

law Sri Sudarshan Nayak reporting the incident. PW-1 has also stated that he came to know from the place of occurrence that the accused Joyram

Kerketa has assaulted the deceased with an axe and killed him. PW-1 had identified the Ejahar as Ext-1 and his signature as Ext. 1(1). He has also

stated that the Police had seized one axe from near the dead body and Ext. 2 was the seizure list which contains his signature.

PW-2 Sri Sudarshan Nayak, who is the scribe of the Ejahar, had confirmed the fact that the Ejahar was written by him.

PW-3 Md. Rahmat Ali is a neighbor of the accused person, who had deposed that the deceased Bijoy Silonti has expired in the year 2014 during

Diwali. The witness has deposed that on the night of the occurrence, while he was returning from Bordubi market, he saw gathering of people at the

back side of his residence and accordingly went there and saw that the dead body of Bijoy Silonti was lying on the ground. PW-3 has also deposed

that he saw blood coming out from the face of Bijoy Salonti and at that time he was already dead. The witness has also deposed that he saw an axe

lying by the left side of the dead body of the deceased.

PW-4 is the brother- in- law of the accused person and also the nephew of the deceased and is the sole eye witness to the incident. PW-4 had

deposed that on the day of the occurrence, he was at his house and at around 7-30 p.m. he had heard that the accused and the deceased were

quarreling between them. Hearing their quarrel he came to the place of occurrence and saw that the deceased was holding a bamboo stick and the

accused was holding an axe. PW-4 has further deposed that when he tried to intervene in the quarrel, the accused had pushed him as a result of

which, he fell down on the ground and then he saw the accused had assaulted the deceased with the said axe in his hand on the cheek and near the

nose. The deceased had immediately fallen down on the ground and was struggling for his life. PW-4 has further deposed that at that stage he ran

away to call his younger brother Mutuk Keshab and when he returned with him, he saw that the deceased was already dead. During the cross

examination, the testimony of PW-4 could not be shaken by the defence counsel.

PW-5 Sri Jiten Bhagawat was the Secretary of the V.D.P. of Duliajan at the relevant point of time and he had deposed that the incident took place

on the day of Kalipuja in the year 2014 at about 7 p.m. PW-5 had stated that when he went to the place of occurrence, he saw the dead body of Bijoy

Silonti drenched in blood. Immediately, he had informed the Bordubi Police Station who had asked him to report the matter to the Duliajan Police

Station. Accordingly, the PW-5 had informed the Duliajan Police Station and after an hour, the Police had arrived at the place of occurrence. The

PW-5 had also stated that on being asked by the Police he had made arrangement for an Ambulance for carrying the dead body to the garden

hospital.

Sri Sombaru Orang i.e. the PW-6 had deposed that he had heard that the accused was murdered and he had accompanied the dead body on the

next day when it was taken to the AMCH, Dibrugarh. Similar in the testimony of Sri Deepak Munda i.e. PW-7 who had also stated that he had seen

the injury on the face of the deceased.

PW-8 Sri Moon Gogoi is the Circle Officer who had conducted the inquest over the dead body of the deceased Bijoy Silonti . The witness has

deposed that Ext. 3 is the Inquest Report and Ext. 3(2) is his signature. Ext .3 mentions the approximate date and time of death as 24/10/2014 in the

evening time.

Dr. Subhajit Deka i.e. PW-9 is the doctor who had conducted the Post Mortem examination on the dead body of Bijoy Silonti. According to the

PW-9, the death was instantaneous as a result of the injury sustained on the head. All the injuries were ante-mortem and caused by blunt force impact

and were homicidal in nature. PW-9 has confirmed the entries in the Post Mortem Report (Ext.-4) and has opined that the time since death was

approximately 18-24 hours from the time of the post mortem examination.

Ext. 4 is the post-mortem report which contains the description of the injuries, which are as follows :-

“Injury : (1) Incised look lacerated wound of 12 cm x 4 cm over the left side of the head extending from tragus to right medial centre in the front

brain deep, fracture line of the bone with gap, reddish.

(2) Lacerated wound of 4 cm x 2 cm over the face, below nose and above upper lip bone deep horizontally reddish in colour.

(3) Lacerated wound of 5 cm x 2 cm above right face below …. (illegible)… of (5 cm x 2 cm) bone deep extending from right along nose downward

and backward upto angle of the mandible 3cm away.

(4) Abraded contusion over the front of the size of 5cm x 3 cm reddish in colour.â€​

PW-10 Sri Bhabesh Chandra Sharma was the then In-charge of Tingrai Chariali Police Outpost and he has deposed that at about 10-15 a.m. in

the morning time on that day, one Sri Jogen Bhagawat of Dirial Tea Estate had informed him over phone that on 24/10/2014 at about 7 p.m. at night

Sri Bijoy Silonti of Kachari Line of Dirial Tea Estate had been killed by his son-in-law Jerom Kerketa by assaulting him with an axe. PW-10 has

stated that on receipt of the information he had made a G.D. entry bearing No. Tingrai Police Out Post Entry No. 447 dated 25/10/2015 and

thereafter, he along with the other staff, had rushed to the place of occurrence. On reaching the place of occurrence, the PW-10 had learnt from the

gathering that the dead body of deceased Bijoy Silonti had been kept at the nearby hospital of Dirial Tea Estate and then he inspected the place of

occurrence and seized an axe which was lying near the place of occurrence.PW-10 has stated that Seizure List Ext. 2 was prepared by him and M.

Ext. 1 was the axe which was seized from the place of occurrence. PW-10 had also stated in his deposition that he had come to know that Joyram

Kerketa had already surrendered before the Bordubi Police Station and that he had sent the dead body to the Assam Medical College Hospital,

Dibrugarh for post mortem.

Smt. Jamini Mukta(CW-1) who is the wife of the deceased, was examined as court witness. CW-1 had deposed before the Court that a quarrel

took place between the accused and her husband over a sum of Rs. 1,000/- which the accused had taken from her husband and have spent the money

in gambling. When her husband had asked the accused to return the money, the accused had told him that he had lost the amount of Rs. 1000/-

somewhere. According to the CW-1, the accused had called her husband to his parent’s house on the next day but when her husband went to

their house on the same night at about 7 p.m, he had returned back and told her that the accused person first gave blow to him and tried to strangulate

him by his neck. He also showed her the nail marks in the neck. The witness has deposed that she later on came to know from Junas @ Mutu that

her husband was assaulted by the accused person with an axe. On receiving the information she had rushed to the place and found her husband lying

dead on the road with cut injuries on his face and blood was oozing out.

The evidence on record leaves no room for doubt that the incident, which led to the death of the deceased, took place on the night of

24/10/2014.The eye witness PW-4 has categorically deposed that he had seen the accused assault the deceased with an axe on the cheek and near

the nose. During cross examination, the testimony of the said eye witness could not be displaced by the defence side. The injuries mentioned in the

Post Mortem Report (Ext. 4) and the testimony of the doctor (PW-9) corroborates the account of the eye witness. From the above evidence brought

on record it is established beyond all reasonable doubt that the deceased had suffered a homicidal death on being struck by a blunt heavy weapon.

From the testimony of the CW-1 the motive for committing the murder has clearly emerged. It may be noted here-in that the CW-1 is not only the

wife of the deceased but is also the mother-in-law of the accused. Although she is not an eye witness to the incident, yet, she has not only seen the

dead body lying on the ground but is also a witness to the incidents involving the deceased and the accused that took place even before the

occurrence. That apart, the CW-1 has categorically deposed before the court that on the same evening her husband had told her that the accused had

tried to strangulate the deceased and he had also shown the marks of nail in his neck. The CW-1 is an important witness in this case and her version

appears to be wholly consistent with the testimony of the other witnesses examined by the prosecution side. Moreover, during the cross

â€"examination there was no suggestion made by the defence counsel with a view to contradict her. We also see no reason as to why the CW-1

would give false evidence against her own son-in-law. We are, therefore, of the opinion that the testimony of the CW-1 can be regarded as truthful

and trustworthy and therefore, can be safely relied upon by the court.From the evidence available on record it is thus established beyond doubt that the

accused had struck the deceased with an axe which had resulted in his homicidal death.

Having held as above, we may also mention here-in that the testimony of PW-1 and CW-1 clearly indicates about there being a quarrel between

the accused and the deceased on the day of the occurrence and therefore, with a view to ascertain as to whether there was any provocation that can

be said to be grave and sudden enough so as to trigger a violent reaction of the accused leading to the homicidal death of the deceased. From the

evidence on record we find that the quarrel between the accused and the deceased had started on the previous day when the deceased had asked the

accused to return back the money borrowed from him. The account of the eye witness PW-4 also clearly goes to show that around the proximate

time of the incident, both the deceased and the accused were engaged in a quarrel and at that time the deceased was armed with a bamboo stick.

Therefore, existence of grave and sudden provocation leading to the commission of the crime cannot be ruled out in this case.

It would further be apposite to mention here-in that from the testimony of the PW-9 it is seen that the injury had been caused by blunt force

impact. As such, it is apparent that the although the accused was holding an axe, yet, he did no use the sharp edge of the same but had hit the

deceased with the blunt side.

On a threadbare examination of the materials available on record, we are of the view that the accused had assaulted the victim in a fit of rage.

Having regard to the circumstances in which the incident took place, we are of the un-hesitant opinion that it is not a case of pre-meditated assault on

the deceased but the accused had inflicted the fatal blows upon the deceased out of anger, having lost his self control. Under the circumstances, the

conviction of the accused under section 302 of the IPC, in our considered opinion, would be wholly unwarranted in the facts of this case.

We therefore, set aside the conviction of the accused Joyram Kerketa under section 302 of the IPC and the sentence of imprisonment for life and

instead, convict him under section 304 part II of the Indian Penal Code and sentence him to undergo rigorous imprisonment for 7 (seven) years.

The sentence of fine is, however, affirmed.

The appellant, who is in jail, be released on his undergoing the sentence awarded by us. The appeal stands partly allowed.

Send back the LCR.