Suman Shyam, J.:— Heard Mr. M.K Das, learned Amicus Curie appearing for the appellant. Also heard Ms. B. Bhuyan, learned Addl. P.P, Assam appearing for the State.
2. The sole appellant Smti. Suljina Dhan was convicted under Section 302 of the Indian penal Code (IPC) for committing murder of her husband late Benu Dhan and was sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs. 5000/- with default clause.
3. The prosecution case, in brief, is that on 20-07-2014, at about 09:00 p.m the Assistant Manager of Disang Tea Estate had informed the Officer-in-Charge of Nahorkatia Police Station over phone that a murder had taken place in Girja Line of the tea estate. On receipt of the information, the Officer-in-Charge of the Police Station had rushed to the Disang Tea Estate and on arriving at the Girja Line, he found that the deceased Benu Dhan was lying unconscious inside the house in a pool of blood and an axe was lying by his side. The injured was then sent to the garden hospital and the axe was seized by the police. Later on, it transpired that the appellant had killed her husband Benu Dhan with an axe.
4. An ejahar was lodged on 21-07-2014 at the Nahorkatia Police Station by Sri. Isac Dhan reporting the incident. Based on the ejahar, Nahorkatia P.S Case No. 78/2014 was registered under Section 302 of the IPC against the appellant as the accused person. On completion of investigation by the police, charge-sheet was submitted against the appellant. Charge of having committed murder was framed and since, the accused had pleaded not guilty, the case was put up for trial which has ultimately led to the conviction of the appellant under Section 302 IPC.
5. There is no eye witness in this case and the prosecution case is entirely based on circumstantial evidence. The prosecution side has examined as many as nine witnesses but no evidence was adduced by the defence.
6. Dr. Nayan Moni Pathak, i.e PW-8 is the Medical Officer working in the Department of Forensic Medicine, Assam Medical College, Dibrugarh, who had conducted the Postmortem examination on the dead body of Benu Dhan. The postmortem report Exhibit-3 mentions the following injuries on the body of the deceased:—
I EXTRANAL APPERANCE
1. Condition of subject stout emaciated, decomposed etc:
Male dead body of average build, dark complexion, dressed in a black long pants and underwear. Body found cold both externally and internally. Rigor mortis passing off and present partially over lower half of body.
2. Wounds - position, and character: Injuries:
(1) Chop wound of size 8 × 2 cm × brain deep over left temporal area of scalp. On dissection, facture of length 6 cm found over left temporal bone underneath cut injury seen over membrane (3 cm length) and temporal lobe of brain (3 cm).
(2) Chop wound of size 6 × 2 cm × bone deep over left cheek over maxillary area, cutting maxilla as well as top of left pinna.
7. The doctor has opined that the death of the deceased has occurred due to coma following head injuries sustained by him and that all the injuries were ante mortem caused by sharp cutting heavy weapon and were homicidal in nature.
8. PW-1 Isac Dhan, who is the elder brother of the deceased is the informant in this case and he had deposed that on 20-07-2014 at about 09:00 p.m his nephew Nikudin Barla came to their house and told him that he had got the information over phone that a fight had taken place at his youngest uncle's house and had asked the witness to go over there but as it was night time, the PW-1 did not go there immediately. Around 05:00 p.m on the following morning, he, being accompanied by his wife and nephew Nikudin, had gone to Disang Tea Estate and on reaching there, he saw his brother's dead body kept in the trailer of a tractor parked in front of the Garden Hospital. Later on, the dead body was taken to the police station and from there it was taken to Dibrugarh for conducting postmortem examination. The witness has confirmed that Exhibit-1 is the ejahar lodged by him and Exhibit-1(1) was his signature. He has also stated that Exhibit-2 is the seizure list.
9. PW-2 Trijan Kulla was declared hostile witness and therefore, it would not be necessary to discuss in details the testimony of the said witness. However, it may be relevant to note here-in that during the cross-examination of PW-2 by the prosecution, she had stated that at about 08:30 p.m the children of the deceased made a hue and cry and then she went to the house of the deceased and found him lying in pool blood in the first room. The witness has also stated that an axe was lying near the deceased.
10. PW-3 Hira Kumari Tappo was the other witness examined by the prosecution who had deposed that on the night of the occurrence while preparing meal, she had heard people raising commotion on the road that the husband of the accused has been cut by his wife. When she went to the house of the deceased then she found that he was lying on the ground and near him there was an axe.
11. PW-4 Jibanti Dhan is the daughter of the deceased Benu Dhan and she had deposed that the occurrence took place one night in the month of July after dinner. The witness has stated that as her father had been raising “hulla” inside the house she went out through the backside and after sometime when there was silence, she entered the house and saw her father lying in the floor on the side of the bed. PW-4 has also stated that she saw marks of injury on the left side of her father's head and that he was bleeding and her mother was standing nearby. When she went to call the neighbors, she fell unconscious and on regaining her consciousness, she saw that the police had arrived. Thereafter, the police had taken her father to the hospital. PW-4 has also stated that the police took the axe from their house.
12. Similarly, PW-5 Manual Dhan, who is the son of the accused and the deceased, had deposed that on the night of occurrence at 08:30 p.m when he was watching television at his neighbor's house, a person went there and informed him that his mother has killed his father by assaulting him with an axe. He then returned home and saw his father lying on the bed and an axe was sticking to his father's head on the left side. PW-5 has stated that his mother was not at home. His elder sister had called the neighbors then police came and took his father's dead body to the garden hospital in a vehicle.
13. PW-6 Kamil Panna is another witness examined by the prosecution side who has deposed that on the morning following the day of occurrence, he saw lots of people gathered at the accused person's house and he came to know about the incident when the people were saying that the accused person has cut her husband. This witness has, however, deposed that he did not go to see the dead body.
14. PW-7 Arun Panna had deposed that the occurrence took place last year and on that evening, when he went out for a walk, a friend had told him that the appellant had killed her husband by assaulting with an axe. Then he went to the house of the accused and saw that the dead body of the deceased was lying on the floor inside the room and an axe was sticking to his head.
15. PW-9 Utpal Bora is the Investigating Officer in this case and he had categorically deposed before the court that on receipt of the information from the Assistant Manager of the Disang Tea Estate at about 09:30 p.m, that an incident of murder had taken place in the tea line, he had made an entry in the General Diary vide GD Entry No. 434 of 21-07-2014 and then proceeded to the tea estate being accompanied by his staff. On reaching the tea garden and the place of occurrence he saw some people had gathered there and he found that inside the house a man was lying unconscious and smeared with blood and an axe was lying in the place where the injured had been seen. The people present there told him that it was Benu Dhan. PW-9 has deposed that he had sent the injured in a vehicle of that garden to the garden hospital. PW-9 has further stated that after the inquest was over and the dead body was brought to the police station he had sent it for postmortem examination to the Assam Medical College and Hospital. The accused, who was in police custody, was arrested, interrogated and then she was sent for medical examination and thereafter, forwarded to the court.
16. As noted above, the witnesses PWs 3, 4, 5 and 7 have categorically stated in their evidence that they had seen the body lying in the floor of the house in an injured condition. PW-4 had stated that she had seen injury marks on the left side of her father's head and the Post Mortem report Ext 3 confirms the said injuries on the dead body. PWs 5 and 7 had corroborated the said version and stated that they had seen an axe sticking to his head. During cross examination, the testimony of the said witnesses could not be shaken by the defense side.
17. The inquest Report (Ext-5) also shows that the deceased was a male aged about 48 years and the body was identified by the son of the deceased Manual Dhan (PW-5). From a minute scrutiny of the evidence available on record, we find that the prosecution side has succeeded in clearly establishing the fact that the death of the deceased was homicidal in nature which had taken place on 20-07-2014 inside his house due to injuries sustained by sharp heavy weapon. The axe used in causing the injuries had also been duly seized by the Police from the place of occurrence. It is further established from the evidence on record that besides the accused and the deceased, no one else was present in the house at the time of occurrence.
18. In her statement recorded under section 313 of the Cr.P.C the accused has admitted her presence inside the house at the time of the occurrence but according to her, the deceased had sustained injury by falling upon the axe. From a careful examination of the Postmortem Report (Ext-3) as well as the evidence of the PW-9, we, however, find that there were multiple deep cut injuries sustained by the deceased. In our considered opinion, such multiple injuries of the nature indicated in Ext-3 cannot occur merely by falling upon the axe. On the contrary, we are of the view that the deep wounds sustained by the deceased was the result of assault made upon his body by a heavy sharp weapon like an axe.
19. By relying upon the decision of the Supreme Court in the case of Trimukh Maroti Kirkan v. State of Maharastra reported in (2006) 10 SCC 681 the learned Sessions Judge has held that since the incident had occurred inside the house where only the deceased and the accused were present, there was a duty cast upon her under Section 106 of the Evidence Act to establish her innocence which duty was not discharged by the accused in this case. We have already noted that the accused did not adduce any evidence in support of her case.Having regard to the law laid down in the case of Trimukh Maroti Kirkan (supra) we are also of the view that the onus to lead evidence to establish the fact that the deceased had sustained injury by falling upon the axe was upon the accused which burden she has failed to discharge.
20. For the reasons stated here-in-above, we are of the view that the prosecution side has been able to prove beyond all reasonable doubt by leading cogent evidence that the accused had assaulted the deceased by an axe causing grievous injuries as a result of which, he had died. We therefore, hold that the learned Sessions Judge has rightly held that the homicidal death of the deceased Benu Dhan had taken place due to the assault made by the accused i.e his wife, on the night of 20-07-2014 inside their house.
21. Having held as above, we cannot be unmindful of the testimony of PW-3 who had stated that he had come to know about a quarrel that had taken place on that night at the house of his uncle i.e the deceased and he was asked to go there by his nephew Nikudin Barla. PW - 4 has stated about a “Hulla” being raised by her father i.e the deceased just before the occurrence as a result of which, she had to go behind the house.
22. PW-2 had also stated that deceased had been quarreling with his wife i.e the accused since the evening and that is why she had killed him by hitting on his head. During cross-examination, no suggestion was made by the defence side challenging the statement made by the said witness. PW-2 has also stated during her cross-examination that the deceased was a habitual drunkard. Although PW-2 was declared as a hostile witness, yet, law is well settled that the testimony of a hostile witness need not be discarded as a whole and, relevant parts thereof, which are admissible in law, can be used by either by the prosecution or the defence. [see Birju v. State of M.P, (2014) 3 SCC 421]. We find no cogent reason to discard the testimony of the PW-2 which goes to show that there was a quarrel between the deceased and his wife just before the occurrence.
23. In her statement recorded under section 313 of the Cr.P.C the accused has also stated that on the night of the occurrence, her husband had come home in an inebriated condition and picked up a quarrel with her. She has stated that her husband had taken a “dao” to assault her. The cumulative evidence of PWs 2, 3 and 4, as noticed above, lends ample support to the version of the accused that the deceased had picked up a quarrel with her immediately before the incident had occurred. It is also to be noted here-in that the prosecution side has not been able to establish the motive behind the crime in this case.
24. From a careful scrutiny of the materials available on record, we are convince that there was a quarrel which took place between the deceased and the accused immediately before the incident and therefore, it is a clear case of provocation cause by the husband, which was grave and sudden and had led to the incident resulting in the death of the deceased. It quite unusual for a wife to kill her husband by assaulting him with an axe and in the absence of any other motive for committing the crime, we are of the un-hesitant opinion that, save and except grave and sudden provocation by the deceased husband, there was no proximate reason for the accused to kill her husband. Therefore, in our opinion, the present case would fall under the Exception No. 1 of the Section 300 IPC. The appellant was apparently a victim of circumstances and hence, deserves a lesser sentence of 05 years imprisonment instead of rigorous imprisonment for life.
25. We accordingly, set aside the conviction of the appellant under section 302 of the IPC as well as the sentence of life imprisonment imposed upon her by the trial court and instead, convict the appellant under Section 304 part-II of the Indian Penal Code and sentence her to undergo rigorous imprisonment for 5 (years) years.
26. The sentence of fine, however, stands affirmed.
27. The appellant, who is in jail, be released after undergoing the sentence awarded by us.
28. The appeal stands partly allowed.
29. Send back the LCR.
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