JUDGMENT
1. By the impugned judgment and order, dated 11.08.2004, the learned Sessions Judge, Karimganj, has, in Sessions Case No. 2 of 2004, convicted the accused-appellant under Section 302 IPC and sentenced him to suffer imprisonment for life and pay a fine of Rs. 1,000 and, in default of payment of fine, to suffer simple imprisonment for six months.
2. The prosecution case, as was unfolded at the trial, may, in brief, be stated as follows:
The accused-appellant is the son of deceased Kulen Sutradhar (since deceased), who used to take alcohol heavily and, in drunken state, used to quarrel and abuse the members of his family including his wife and also, at times, even assaulted them. On 22.08.2003, in the evening, when Kulen’s wife, Renu, arrived home, she found Kulen in drunken state and, as usual, he started quarreling with Renu, abused her and beat her. On being so beaten, Renu left her home. At about 9.30 pm, on that very day, i.e., on 22.08.2003, Kulen’s son Bablu (i.e., the present accused-appellant) came home, Kulen started quarrelling with Bablu too and being enraged, the accused-appellant picked up a pira (i.e., a low level stool meant for sitting) and hit his father with the same. Unable to control his anger, the accused-appellant also assaulted his father on his head with a khukri. As a result of the fracture sustained on his head due to the assault at the hands of his son, Bablu, (i.e., the present accused-appellant) Kulen succumbed to his injuries. The accused-appellant, then, went to the house of Smt. Dumgi Basumatary and told her that he had come after killing his father. At the house of Smt. Dumgi Basumatary, the accused-appellant kept the khukri concealed somewhere in the roof of the kitchen and left her house. On reaching home at night, Dulu (i.e., the elder brother of the accused-appellant), found his father lying dead and, on hearing from the people, who had assembled there, that Bablu had killed his father, Dulu went to Kokrajhar Police Station and handed over to the police a written Ejahar informing the police that his brother, Bablu had injured his father and that his father had succumbed to the injuries, while being taken to the hospital. Based on this Ejahar, Kokrajhar Police Station case No. 155/2003 under Section 302 IPC was registered against the accused-appellant. During investigation, police held inquest over the said dead body and seized the khukri from the house of Smti. Dumgi Basumatary aforementioned. In course of time, the accused-appellant made a judicial confession and, on completion of investigation, the police laid charge-sheet against the accused-appellant under Section 302 IPC.
3. In support of their case, prosecution altogether examined as many as 12 witnesses. The accused-appellant was, then, examined under Section 313 Cr.PC and in his cross-examination aforementioned, he denied that he had committed the offence alleged to have been committed by him, the case of the defence being that of total denial. The defence also adduced evidence by examining one witness, namely, Renu, i.e., the mother of the. accused-appellant. On finding the accused-appellant guilty of the charge framed against him, the learned trial Court convicted him accordingly and passed sentence against him as mentioned hereinabove. Hence, the present appeal.
4. We have heard Mr. S.K. Medhi, learned Counsel, as amicus curiae, and Mr. D. Das, learned Addl. Public Prosecutor, Assam.
5. P.W.12 is the doctor, who had conducted the post-mortem on the dead body of deceased Kulen. According, to P.W.12, the post-mortem examination revealed as follows:
(1) One lacerated wound on right side of forehead with depressed underlying frontal bone of size 4″ × ½”. Placed transeverely.
(2) Two lacerated wounds on occipital region of head of size 4″ × ½” 1″ = 3″ × ½ X 1″ placed obliquely.
The examination of scalp, skull and vertebrae disclosed as follows:
(1) Frontal bone present with multiple fractures on right side.
(2) Occipital region present scalp injuries as described with multiple fractures of occipital bone.
6. P.W.12 has opined that the injuries were ante-mortem in nature and the death was caused due to shock and hemorrhage resulting from the head injuries sustained by the said deceased. There is no worthwhile cross-examination of the doctor (P.W.12) by the defence. This apart, we notice nothing untrue, illogical and/or incorrect in the evidence given by PW12. We, therefore, see no reason to doubt the veracity of the evidence given by PW12 and/or correctness of the opinion expressed by him.
7. From the evidence given by PW12, what clearly transpires is that the said deceased had died because of the fracture sustained by him on his head, one of the fracture being on the right side of the forehead and other two being on the occipital region.
8. Bearing in mind the medical evidence on record, when we turn to the remaining evidence on record, we notice that from the inmates of the house, prosecution has not been able to elicit as to who had actually injured deceased Kulen. What, however, surfaces from the evidence of PW1, who is daughter-in-law of the said deceased, is that said deceased came home in drunken state and, on his arrival, this witness left the home. The evidence of PW2, who is a neighbour of PW1, is that PW1 came to her house and asked for shelter by saying that her father-in-law had died and, accordingly, remained at the house of PW2 for the night.
9. The evidence of PW1, however, as already mentioned hereinabove, indicates nothing except the fact that the said deceased came home in drunken state. So far as the evidence of PW5, PW6, PW7 and PW9 are concerned, they are co-villagers of the said deceased; but their evidence provides no clue as to how the said deceased had sustained injuries and/or died. It has, however, emerged from the evidence of PW7 that the said deceased used to, quite often, quarrel in drunken state. So far as the informant, i.e., PW4 is concerned, it needs to be noted that though he had lodged the FIR naming the present accused-appellant as accused, he (PW4) has, in his evidence, merely stated that when he came home, he found his father lying dead. In fact, PW4 has disowned that he knew the contents of the FIR. Though PW4 was cross-examined by the prosecution, nothing significant could be elicited from his cross-examination.
10. Turning to the evidence of PW10, we notice that according to her evidence, the accused-appellant came to her house on the night of the occurrence and he told her that he had killed his father and, then, he concealed the khukri in the roof of her kitchen and left. On the following day, according to the evidence of PW10, police came to her house along with the accused-appellant and recovered the said khukri.
11. What, thus, emerges from the above discussion is that Kulen habitually took alcohol and, in drunken state, quite often, quarrel and abuse the members of his family and, on the night of the occurrence, the accused-appellant came to the house of their neighbour PW10 and told her that he had killed his father and, after keeping a khukri concealed in the roof of her kitchen, the accused-appellant left the house of PW10 and, on the following day, the police, accompanied by the accused-appellant, came to the house of PW10 and recovered the said khukri. This recovery of the khukri is corroborated by the evidence of Investigating Officer (PW11), for, PW11 has deposed that he had seized the khukri (M. Ext.1) from the house of PW10.
12. Keeping in view the above discussion of the evidence on record, we, now, turn to the judicial confession of the accused-appellant. What we notice, in this regard, is that PW8, who was the Chief Judicial Magistrate, at the relevant time, has deposed that on 25.8.2003, the accused was produced before him for recording of his confessional statement, whereupon he sent the accused for reflection and when the accused-appellant was, again, produced, he gave the accused-appellant further time of 31/2 hours for reflection and kept the accused-appellant, in his chamber, under the control of his peon. Thereafter, according to what PW8 has deposed that he (PW8) had put some questions to the accused-appellant and, on the accused-appellant expressing his willingness to confess, the confessional statement of the accused-appellant was recorded. We have carefully examined the record of the confessional statement and we notice that PW8 had put to the accused-appellant all such questions, which were necessary and relevant to determine if the confession, which the accused-appellant was offering to make, was voluntary or not. From the questions, so put to the accused-appellant, it is abundantly clear that the accused-appellant had understood that PW8 was a Magistrate, he was not bound to make confession, he had not been compelled by anyone to make confession, his confession could be used against him and even if he chose not to confess, he would not be handed over to police. Moreover, the accused-appellant, in clear words, told PW8 that he wanted to confess, because he had killed his father and he wanted to have peace of mind.
13. From the answers, which the accused-appellant gave to PW8, we have no hesitation in our mind in holding that the confession offered to be made by the accused was voluntary in nature and that his confessional statement was voluntary. In his confessional statement, the accused-appellant has stated that on the day of the occurrence, his father had quarreled with him and, out of anger, he (accused-appellant) picked up a pira and hit his father on the head by the said pira and, then, he picked up a khukri and hacked him to death in a fit of anger. The accused-appellant has, however, not clearly stated as to whether he had used the sharp edge of the khukri or it was the blunt edge of the khukri. However, in the face of the fact that since the medical evidence on record reveals that the said deceased had sustained one lacerated wound with underlying fracture on the right side of his forehead and two lacerated wounds with the fracture underneath the occipital region of his head, it is quite reasonable to infer that the said fracture had occurred as a result of assault at the hands of the accused-appellant by pira as well as khukri.
14. The fact that assault by pira could have caused lacerated wound and fracture thereunder is not in dispute. The reasonable possibility that the accused, in his anger and without paying attention to what he was doing, assaulted his father with the blunt edge of the khukri causing two lacerated wounds on his occipital region can also not be boldly ruled out. At any rate, the medical evidence on record lends support to the confessional statement of the accused-appellant.
15. Coupled with the above, the evidence of PW10 clearly indicates, which we have already discussed hereinabove, that the accused-appellant had confessed before her that he had killed his father.
16. Situated thus, it is abundantly clear that apart from the medical evidence on record, the oral evidence of PW10 also convincingly proves that it was the accused-appellant, who had assaulted, and killed his father.
17. Bearing in mind, what we have concluded above, when we turn to the evidence of mother of the accused-appellant, who has been examined as the sole defence witness, we find that her evidence is that the accused-appellant does not take alcohol, her husband Kulen (since deceased) used to heavily drink and on the night of the occurrence also, when she came home, her husband was causing disturbance in drunken state as he was speaking in uncivilised manner, quarrel ensued therefrom and, on being beaten, she left her home and when she returned after one hour, she found her husband lying dead. The evidence of the wife of the said deceased, (i.e., DW1) gives the background in which the occurrence took place inasmuch as even the DW1’s evidence clearly shows that the said deceased was in provocative state and had been quarrelling at home on the night of the occurrence. Thus, the confessional statement of the accused-appellant receives substantial support from the evidence of the defence witness too.
18. What, thus, crystallizes from the above discussion is that the said deceased was in provocative state, quarrelling with the members of his family, abusing them and even beat his wife. Since the accused-appellant is a young man, his father used to, often quarrel, abuse and even beat in drunken state, it is quite possible that the accused-appellant used to feel angry, but, somehow, managed to suppress and/or controll his anger and became, in the process, a victim of suppressed fury.
19. In the above backdrop, it is quite natural to infer that being a young man and, on finding his father quarrelling as usual, the accused-appellant lost, as a result of the sudden and grave provocation caused by his father, self-control, which he had been applying so far, and gave blow with a pira on the head of his father. It is, no doubt, true that the accused-appellant had exceeded his limits by assaulting his father on his head with a khukri. However, it is difficult to infer, in the face of the fact that no incised or sharp cut wound was sustained by his father, that the intention of the accused-appellant was to cause nothing less than his father’s death. What is, however, clear is that the accused-appellant had full knowledge that by giving blows with khukri on his father’s head, he was likely to cause his father’s death.
20. In view of the fact that the accused-appellant, having lost his control as a result of sudden and grave provocation given by his father, assaulted his father with the knowledge that he was likely to cause his father’s death, committed really an offence under Section 304(1) IPC and not the offence of murder under Section 302 IPC. The accused-appellant ought to have been accordingly held guilty of the offence committed by him under Section 304(1) IPC.
21. Situated thus, we have no hesitation in holding that it was the accused-appellant, who had assaulted his father in the manner as indicated hereinabove, and it was as a result of the injuries sustained at the hands of the accused-appellant that his father succumbed to his injuries. In the given set of facts and attending circumstances of the present case, there can be no escape from the conclusion that the accused-appellant is guilty of the offence under Section 304(1) IPC.
22. In the result and for the foregoing reasons, this appeal partly succeeds. While conviction of the accused-appellant under Section 302 IPC is set aside, the accused-appellant is held guilty of the offence under Section 304(1) IPC and he is convicted accordingly. The accused-appellant is sentenced to undergo rigorous imprisonment for five years with a fine of Rs. 1,000 and, in default, to suffer rigorous imprisonment for a further period of six months.
23. With the above observations and directions, this appeal shall stand disposed of.
24. Send back the LCRs.