Sankar Murmu vs State Of Assam

A.M. Bujor Barua, J

Heard Mr. N. Deka, learned Amicus Curiae appearing for the appellant. Also heard Ms. S. Jahan, learned Additional Public Prosecutor for the State authorities.

Office note dated 15.02.2019 shows that notice had been served on the informant respondent No.2 but inspite of the same, none appears.

An ejahar dated 25.01.2016 was lodged by Soniram Hemrom before the Officer-in-Charge of Gingia Police Station, Sonitpur, Assam inter alia alleging that at about 5 am on 25.01.2016 his son-in-law Sankar Murmu had struck his daughter Rajina Hemrom with an axe and thereby caused her death at her house itself. The informant while deposing as PW-1 stated that at around 9 am on the given day one person had informed him that his daughter died at about 5 am. Hearing the same, he went to her house and saw the dead body of his daughter lying on the ground. After some time, the police came and arrested the accused and took the dead body for post mortem.

PW-2 Smti Parbati Mardi who is the mother the accused had deposed that around 10 am on the given while she was in the house of a relative, some village people came and informed her that her son was not opening the door. Thereupon she went to her house and knocked the door and when her son had opened the door she went inside and saw that her daughter-in-law was lying on the bed and she was dead and further blood was oozing out from her head. She deposed that the village people had informed the police and after some time the police came and took away her son and the dead body of her daughter-in-law.

PW-3 Sri Sebastian Murmu in his deposition stated that one Rabin Murmu and Khandu came to his house and told him that the accused person was not opening the door. Upon hearing the same, he went along with them to the house of the accused person and asked him to open the door. The accused person replied that the police be called and only thereafter he will open the door. Accordingly, when the police came upon being called and when the accused did not open the door, the police broke open the door and went inside and saw that the accused was sitting on the ground and the dead body of his wife was lying on the bed and her clothes were full of blood stain. He deposed that he saw some cut injury across her cheek.

PW-4 Sri Lakhiram Mardi in his deposition stated that when Khandu had informed him that the accused was not opening the door then he himself, Khandu, Sabastin along with others went to the house of the accused and asked him to open the door. But the accused did not open the door and asked them to call the police. Then Sebastain called the police over phone. After some time when the police came the accused opened the door and all of them along with the police went inside the room and saw that the dead body of the wife of the accused was lying on the ground. The witness also saw some cut injury across the cheek of the wife of the accused.

PW-5 the Investigating Officer in his deposition stated that upon going to the place of occurrence he found the dead body of Rajina and had done the inquest and sent the dead body to the police station for post mortem. The witness also stated that on the same day he recorded the statement of the witness, drew the sketch map and also seized the axe from the accused person which was exhibited as Exbt-1.

PW-6 the doctor who had done the post mortem examination had deposed that the following injuries were found on the deceased:-

"(i) One lacerated scalp injury in size ( 2 X 2 X brain depth) over right side of the occipital area depressed fracture as expulsion of brain-matter.

(ii) Incised wound of size ( 2 X 1 X 0.5) over right mediolateral aspects of the mandible just beneath the lower lip.

(iii) Incised wound of size ( 4 X 1 X 1) over right parietal-temporal area expanding the earlobe of right ear.

(iv) Incised wound of size ( 3 X 1 X 0.5) over right fronto-temporal region of the scalp"

The doctor also gave the opinion that death was due to cerebra-vascular accident as a result of injuries sustained.

The accused in his statement under Section 313 Cr.P.C. had denied as to how the death was caused to his wife. He also stated that at the relevant time he was in a drunken condition and he did not know what had happened. The accused also stated that his mother was about 60 years old who looked after his 8 years old son and that she has about 10 bighas of land and earns her livelihood by giving the land for share cropping. The accused further prayed that leniency be showed to him.

From the nature of the injuries sustained by the deceased, it is seen that three blows were given around the head portion of the deceased apparently from the blunt side of the axe which again shows the intention of the accused to cause such injury upon the deceased which may result in her death. But at the same time, from the evidence of PW-3 and 4, it is seen that the conduct of the accused after the occurrence was such that he refused to leave the place of occurrence and even not to open the door and to wait till the police came and take over the matter for investigation. Secondly, we also take note of that in his statement under Section 313, the accused had stated that he was in an inebriated condition.

In Kalu Ram -vs- State of Rajasthan reported in (2000) 10 SCC 324, in paragraph-7 the Supreme Court had the occasion to deal with a matter where the accused was in a highly inebriated condition and had caused the death of the deceased therein by pouring kerosene and by lighting a matchstick. But the subsequent conduct of the accused therein was taken note of where immediately thereafter the accused person tried to douse the flames and also had taken the deceased therein for appropriate medical treatment. In the instant case, a parallel can be drawn in the conduct of the accused herein, wherein, after the occurrence the accused instead of fleeing away from the place of occurrence remained in the room by locking the door from inside and waited till the police arrived at the place and subjected himself for investigation. In his statement under Section 313 Cr.P.C. also the accused had pleaded for leniency and taken the only stand that he was in an inebriated condition.

But at the same time, we also take note of that the case of the appellant herein would also be covered by the principle laid down by the Supreme Court in Paragraph-22 of Trimukh Maroti Kirkan -vs- State of Maharashtra reported in (2006) 10 SCC 681, wherein, it has been held that the burden shifts to the accused person to explain as to how the death was caused in a situation where the occurrence took place within the dwelling premises of the accused and the deceased where they are husband and wife. In the instant case the evidence on record shows that the occurrence took place within the dwelling house of the accused and the deceased who are husband and wife and therefore, the burden shifts on the accused appellant to explain as to how the death was caused to the deceased. Neither in the evidence nor in his statement under Section 313 Cr.P.C. the accused had taken any stand to offer an explanation as to how the death was caused. In the absence of any such explanation by following the principle laid down in Trimukh Maroti Kirkan(supra), we are constrained to hold that it is the accused appellant who had caused the death of the deceased. But again by taking into consideration the circumstances indicated above, where a parallel can be drawn to the post conduct of the appellant to the circumstance that prevailed in Kalu Ram (supra), we are inclined to bring the conviction of the appellant from Section 302 IPC to that of Section 304 IPC.

But however taking note of the nature of the injuries sustained by the deceased and the manner in which the injuries were inflicted, we are of the view that it is a case where the accused had the intention to cause death to the deceased. Accordingly, the accused appellant is convicted under Section 304 Part-I IPC.

As regards the sentence to be imposed on the accused appellant, we take note of the mitigating circumstance as regards the post conduct of the appellant as well as the stand taken by him under Section 313 and accordingly, sentence him to undergo rigorous imprisonment for 10 (ten) years by retaining the fine of Rs.2,000/- imposed by the learned Additional Sessions Judge, FTC Biswanath Chariali, Sonitpur, Assam in his judgment dated 14.03.2018 in Sessions Case No.20/2017 and in default thereof to undergo further rigorous imprisonment of 1 (one) month.

The conviction and sentence of the accused appellant as per the judgment dated 14.03.2018 of the Additional Sessions Judge, FTC, Biswanath Chariali, Sonitpur, Assam in Sessions Case No.20/2017 is modified accordingly. The appeal stands partly allowed.

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

Send back the LCR.