Sufal Baskey vs State Of Assam

M.A. Ali, J

Heard Mr. P. Goswami, learned Amicus Curiae for the appellant and Mr. M. Phukan, learned Addl. P.P., Assam for the respondent State.

This appeal is directed against the judgment and order dated 11.01.2019 rendered by the learned Sessions Judge, Kokrajhar in Sessions Case No.

23/2017, whereby, the appellant was convicted under Section 302 IPC and sentenced to rigorous imprisonment for life and fine of Rs. 3000/- with

default stipulation.

The case of the prosecution, in brief, was that on 24.10.2016, at about 1 PM, when the appellant Saful Baskey and his wife Fulmoni Saren

(deceased) were coming home from kaliabari Bazar, the appellant Saful Baskey dragged his wife Fulmoni from the road towards the river side, where

the appellant hit on the face of his wife with stones kept in the umbrella, and thereby caused multiple injuries. After inflicting the injuries, the appellant

had thrown her on the bank of the river. At about 4 AM, when the appellant and his younger son went to the bank of the river to bring her (injured)

home, she was found in unconscious state. Later on, Fulmoni died and the appellant Saful Baskey surrendered before the Police Out Post. Lakhiram

Hasda (PW-4) lodged an FIR (Ext.2) before the in-charge of Sapkata Out Post, who made a GD entry and forwarded the FIR to Gossaigaon Police

Station for registering a case. On the basis of the said FIR, the officer-in-charge of Gossaigaon Police Station registered Gossaigaon P.S. Case No.

588/2016 under Section 302 IPC and upon completion of investigation submitted charge sheet against the appellant under Section 302 IPC.

During trial learned Sessions Judge framed charge against the appellant under Section 302 IPC, which was abjured by him. In order to substantiate

the charge prosecution examined 6 witnesses including the doctor and the investigating officer. Upon completion of the prosecution evidence, the

accused appellant was examined under Section 313 CrPC, wherein, he pleaded innocence. The appellant did not adduce any defence evidence.

The informant Lakhiram Hadsa was examined as PW-4. He deposed that after coming to the place of occurrence, he had seen the body of the

deceased, which was taken away by police. He also stated that he had no personal knowledge about the occurrence. During cross examination he

stated that the appellant and his wife (deceased) maintained good relationship.

One Maoria Mushahary was examined as PW-1. He deposed that he had seen the accused Saful Baskey killing his wife by hitting her with stone.

He also stated that the stones were kept inside the umbrella. During cross examination it was elicited that the occurrence took place in the evening,

and he had seen the occurrence. He also stated that the deceased and her husband, both were drunk and were under the influence of alcohol.

According to him, a quarrel ensued between them.

PW-2, Sanjoy Mushahary was another eye witness to the occurrence. According to him, he had seen the accused assaulting the victim with stones.

According to PW-3 (Gautam Narzary), when the appellant was assaulting his wife, he tried to resist the appellant. He further stated that he had no

knowledge as to why the accused killed his wife. During cross examination he stated that on the next day, he came to know about the death of the

deceased.

PW-5 the Investigating Officer Ramjan Ali Sk stated that on 25.10.2016 he was at Sapkata Police Out Post as incharge. On that day, at about 9.15,

the accused appeared before the Police Out Post and confessed that he had killed his wife. Accordingly, he made the GD entry No. 377 dated

25.10.2016 and kept the accused at the police station. He also informed the Officer-in-charge of Gossaigaon Police Station and proceeded to the place

of occurrence. He further stated that he had found the body of the victim lying in the courtyard. He informed the Executive Magistrate, who had held

the inquest of the body. He also stated to have come to know from the witness that at 2 PM, the accused and his wife were coming together from the

fish market and both of them were drunk. A quarrel ensued between them on the way and out of anger the accused took his wife to the bank of the

river, where he had assaulted his wife with an umbrella. He further stated to have learned from the villagers that at about 2 AM, the appellant

accompanied with his son brought the injured home, where she died after sometime. He also stated that though, he made a request for recording

confession of the accused, learned Magistrate did not record the confession.

Dr. Ratan Ramchiary, who conducted the postmortem examination was examined as PW-6. According to him, “three numbers of cut injuries

were seen over the face, forehead, just above right eye brow, bruises over back of chest and all are ante mortem in character.†In the opinion of the

doctor, the death was due to shock and hemorrhage as a result of the cut injuries on the face and forehead.

Taking note of the above evidence, learned trial court convicted the appellant under section 302 IPC and awarded sentence as indicated above.

Assailing the impugned judgment the learned amicus curiae submits, that there was no pre-meditation on the part of the appellant, nor had he any

intention to cause death of the victim inasmuch as, when the deceased and the appellant being husband and wife were coming together from the

market, a quarrel ensued between them and in course of the quarrel the appellant, who was under the influence of alcohol, assaulted the victim in the

heat of passion. As such, the conviction of the appellant under Section 302 IPC cannot be sustained, submits Mr. Goswami. Learned Addl. P.P, Mr.

M. Phukan, also very fairly concedes to the submission made by the learned amicus curiae.

The death of the victim Fulmoni due to the injuries inflicted by the appellant was not in dispute. Evidently the injuries were inflicted by hitting with

an umbrella and the stones kept in it. It is also discernible from the evidence and materials brought on record that the accused and his wife (the victim)

were maintaining cordial relationship and they were coming together from the market. Evidently both of them were drunk and quarrel ensued between

them and in course of the quarrel, the accused assaulted the victim. It is also discernible from the evidence on record that the accused came back to

the place of occurrence at about 4 AM to take his wife back home. All these facts and circumstances, more particularly the facts that the appellant

and deceased, being husband and wife, were maintaining cordial relationship and even immediately before the occurrence they were coming home

together from the market, shows that the act of the appellant causing death of his wife was not pre-mediated and the injuries were inflicted in the heat

of passion in course of quarrel. The nature of injuries and the weapon used also clearly suggest that neither the appellant acted in a cruel and unusual

manner nor had he taken any undue advantage. Therefore, the act of the appellant causing death of his wife, in our considered opinion, comes within

the sweep of exception 4 to Section 300 IPC, and as such, we concur with the submission of the learned amicus curiae, the conviction of the appellant

u/s 302 IPC is not sustainable. In the facts and circumstances of the case, in our considered view, though, knowledge, that the injury might cause

death may be attributed to the appellant, no intention can be attributed to him. Therefore, we set aside the conviction of the appellant under Section

302 IPC, instead convict him under Section 304 Part-II.

The record shows that the appellant has been in jail for about four and half years. Therefore, we are of the considered opinion that sentence for

the period, which the appellant had already undergone in jail would meet the ends of justice. Accordingly, we sentence the appellant to undergo

rigorous imprisonment for the period which he has already undergone.

The appeal stands partly allowed with the modification and alteration to the extent indicated above.

The appellant shall be released forthwith if not required in connection with any other case.

Appreciating the assistance rendered by Mr. P. Goswami, learned Amicus Curiae, we hereby provide that he will be entitled to Rs. 7500/- as

professional fee, which shall be paid to him by the Gauhati High Court Legal Services Committee upon production of a copy of this judgment.

Send down the LCR.