Tulung Manki Mura vs State Of Assam

AM Bujor Barua, J

Heard Mr. B Prasad, learned Amicus Curiae for the appellant. Also heard Ms. S Jahan, learned Additional Public Prosecutor, Assam appearing for the State of Assam.

By the order dated 21.06.2019, it was accepted that service on informant/respondent No.2 has been duly served. Inspite of such service, none appears.

An ejahar dated 28.07.2015 was lodged by Budhuni Manki Mura wife of Late Suka Manki that on 26.07.2015 at around 12 in the midnight Tulung Manki the brother of her husband Suka Manki had assaulted her husband with a split fire wood as a result of which he succumbed to his injury at about 3 AM in the house itself.

PW-1 Dr. Gauri Sankar Gogoi, who had conducted the post mortem examination found the following injuries on the deceased:

"Fracture of right parietal bone of size 4cm x 4cm.

Blood stains seen from both ears.

Membrane - Ruptured under the wound and subdural haematoma found of size 5cm x 5cm x 2cm.

Brain was ruptured on right parietal region of size 2cm x 2cm x 2cm.

Other organs were normal and healthy."

PW-2, the informant, in her deposition stated that the deceased Suka Manki Mura was her husband and the accused Tulung Manki Mura is her brother-in-law, being the younger brother of her husband. On the night of the given day, at about 9 P.M., the accused went to her house in a drunken condition and asked for a meal, which was refused as it was not prepared. At that stage, her husband told the accused that he should earn some money by doing work and that they cannot provide him with the meal although he came and asked for it. When the husband of PW-2 stated as such, a quarrel took place between the deceased husband and the accused. In the quarrel, the deceased husband first hit the accused on his back with a wooden batten, thereafter the accused picked up the wooden batten and hit her deceased husband on his head. It was also deposed that at the relevant time nobody was present in the locality as the other villagers had gone to the house of some other family where a death had occurred.

In cross, PW-2 stated that at the time of the occurrence, she was sleeping in the house in the middle room, where there were three rooms in the house. She also stated that she came out of the house after the occurrence had taken place.

Other than the aforesaid evidence, the further evidence led by the prosecution in our view would not be relevant to decide the issue against the appellant and hence we refrain from depicting the same in this order.

The PW-2, being the eye-witness and also a natural witness to the occurrence which took place in the middle of the night, as she was the wife of the deceased, her eye witness account of the occurrence would be relevant for the purpose of arriving at a conclusion that it is the accused alone who had inflicted the blow resulting in the injury which had caused the death of the deceased. The eye witness account of the occurrence of PW-2 is also consistent with the nature of injuries sustained by the deceased as deposed by PW-1, the Doctor who had conducted the post mortem examination.

Mr. B Prasad, learned Amicus Curiae had raised the contention that the accused by examining himself as DW-1 had deposed that at the relevant time when the occurrence took place he was at a different place named Bordumsa. In other words, the accused appellant through his deposition as DW-1 has taken a plea of an alibi.

But in cross, the accused appellant who examined himself as DW-1 has stated that it is not a fact that on 27.07.2015, while he gave his statement to the police, he had admitted the facts as mentioned in the ejahar and further the exhibit-A is his statement recorded under Section 161 of the Cr.P.C. The said suggestion extracted from DW-1 accused appellant shows that he was confronted by the prosecution on the basis of his statement under Section 161 Cr.P.C as regards his plea of alibi that he was present at Bordumsa when the occurrence had taken place.

On a perusal of the statement of the DW-1 accused appellant made under Section 161 Cr.P.C., it is taken note of that the accused had stated that he had approached his sister-in-law for some food in her house, which was refused and further that a quarrel took place between him and the deceased in the house of the deceased. He also stated that he had picked up the wooden batten and threw it which resulted in the batten hitting the head of the deceased. The said statement under Section 161 Cr.P.C of the DW-1 appellant is a contradiction of his deposition as DW-1 and as such the plea of alibi taken by him in the said deposition is found to be unacceptable.

Mr. B Prasad, learned Amicus Curiae has also raised the contention that in cross PW-1 had stated that she came out of the house after the occurrence had taken place and therefore, she cannot be an eye witness.

Ms. S Jahan, learned Additional Public Prosecutor, per contra, contends that the statement of PW-2 in cross that she came out of the house after the occurrence took place does not mean that the witness had not come out of her room earlier in order to witness the occurrence which took place within one of the rooms inside her house. The contention raised by the learned Additional Public Prosecutor, finds credence from the statement of PW-2 in cross where she states that she was sleeping in her house in the middle room, where there are three rooms in the house. The said statement is a clear indication that PW-2 was aware of and had distinguished between the rooms inside the house and the house itself. As such, her statement that she came out of the house after the occurrence had taken place necessarily does not mean that she had earlier not come out of the room where she was sleeping in order to witness the occurrence which took place within one of the rooms inside the house.

Accordingly, the contention of the learned Amicus Curiae, Mr. B Prasad that PW-2 could not have been an eye witness as she came of the house after the occurrence had taken place cannot be accepted.

The evidence of PW-2 clearly shows that the accused came to the house of the deceased in an inebriated condition and asked for some food which was refused and thereafter a quarrel took place between the accused and the deceased, where the deceased took a wooden batten and struck the accused on his back and only thereafter the accused picked up the wooden batten and struck the deceased which fell on his head.

The aforesaid circumstance in which the fatal blow was struck by the accused as stated by the eye witness is clearly a mitigating circumstance to bring the act of the deceased within the purview of Exception 4 to Section 300 of the IPC. Accordingly the act of the accused appellant being a culpable homicide not amounting to murder and further considering the circumstance and the manner in which the fatal blow was struck, we are also of the view that the accused did not had the intention to cause the death of the deceased.

Accordingly, we convict the accused appellant under Section 304 Part II of the IPC and considering all the circumstances sentence him to an imprisonment for 5(five) years and a fine of Rs.2000/- (Rupees Two Thousand) in default thereof a further imprisonment of 2(two) months.

The judgment dated 24.01.2018 of the learned Sessions Judge Tinsukia in Session Case No.32(T)/2017 accordingly stands modified.

The appeal stands partly allowed.

18 . Send back the LCR.

Before parting with the record, we appreciate the valuable service rendered by Mr. B Prasad, 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 this judgment and order.