JUDGMENT
A.H. Saikia, J.
1. Heard Ms. K. Dutta, learned Counsel who has been appointed by this Court as Amicus Curiae today itself due to absence of Mr. M.R. Pathak, learned Counsel who was earlier appointed as Amicus Curiae. Also heard Mr. B.B. Gogoi, learned Public Prosecutor, Assam.
2. The conviction of the appellant Under Section 302 IPC and his subsequent sentence to rigorous imprisonment for life and also with fine of Rs. 2,000/-, in default of payment of fine, further rigorous imprisonment for one month, awarded by learned Sessions Judge, Bongaigaon vide judgment and order dated 25.07.01 in Sessions Case No. 17(B)/2001, has been assailed in this appeal being preferred by the appellant from jail.
3. The facts in brief as unfolded by the prosecution are that the appellant, Sri Burlang Narzary married Smti. Bilani Narzary about 7/8 years ago of the incident. They were blessed with two children of their wedlock and living together under the same roof. On the eventful day on 25.07.00 at about 11-00 A.M. while Smti. Bilani Narzary, the wife, was asleep inside the house, the appellant without any rhyme and reason dealt fatal blows on her head by means of an axe causing severe injuries as a result of which she died on the spot.
4. P.W.-3, Thengna Goyari, the elder brother of the deceased Bilani Narzary immediately, after the occurrence lodged an FIR dated 25.07.00 with the officer-in-charge, Amguri Police Out-post under Bijni Police Station. On the basis of the said FIR, the law of investigation ensued. On completion of the investigation, the police chargesheeted the appellant Under Section 302 IPC and sent for trial.
5. The learned Magistrate on receipt of the chargesheet having found the case exclusively triable by the Court of Sessions, committed the case for trial to the Court of learned Sessions Judge, Bongaigaon.
6. The learned Sessions Judge after going through the chargesheet and statement so recorded by the police and upon healing learned Counsel for the parties charged the accused Under Section 302 IPC. The Court also recorded the statement of the accused Under Section 313 Cr.P.C, whereby the accused pleaded guilty. Although the appellant pleaded guilty, for the ends of justice, the learned Sessions Judge proceeded with the trial against the appellant.
7. During the trial, the prosecution examined as many as seven witnesses including Doctor Bhupesh Chowdhury as PW 1, Sri L.C. Nath the Sub-Divisional Judicial Magistrate, Bijni as PW 2 who recorded the confession of the appellant Under Section 164 Cr.P.C. as well as Shri Gojen Gohain, the Investigation Officer as PW 7, who was entrusted with the investigation of the case. The prosecution also examined the relevant documents, which were exhibited, particularly the Ext. 2 being the confessional statement and Ext. 4, the inquest report.
8. On proper appreciation of the material evidence on record, both oral and documentary, the trial Judge found the appellant guilty of the offence of murder and accordingly convicted and sentenced him as already indicated above. Hence this appeal from jail.
9. We have meticulously scanned the deposition of relevant witnesses, mainly, PWs 1, 2, 3, 4, 5, 6 and 7 and also carefully examined Ext. 2, the confessional statement as well as the Ext.-4, the inquest report. We have noticed that all the witnesses had testified their deposition with complete corroboration and reliability to the fact that the appellant murdered his wife while she was asleep on the very eventful day at noon. It also clearly transpires that the appellant in his confessional statement categorically confessed his involvement in commission of the crime.
10. From a close perusal of his confessional statement, so indicated above, it is testified that the appellant had taken a little liquor at noon on 25.07.00 and that time his wife, the deceased Binlani Narzary was sleeping without paying any heed to his words and she frequently behaved in such disobeying manner, for which the appellant became angry and out of such anger he took the axe and dealt at random three cut blows with it on her causing her instant death. Nonetheless the three injuries had been countered by the medical evidence of Doctor, PW 1.
11. For the sake of proper appreciation and to find the corroboration of confessional statement with the medical evidence, the Doctor’s evidence may be noted and the same is given below:
INJURIES:
(i) Lacerated injury seen at right side of occipital bone size 3/2 cms. Blood and blood clot seen around injury.
(ii) Occipital bone was fractured. Intracranial haemmorage was seen both hemoshphere of brain. Other organs were found healthy, but on dissections of uterus, eight months focus (female) was seen.
The Doctor also opined that the cause of death was due to haemmorhage and shock as a result of fatal blow and injury sustained.
12. The medical evidence also clearly shows that only one injury which became fatal for causing the death was being corroborated with the confessional statement of the appellant that he, out of anger dealt a blow upon his wife.
13. Under such factual premises, we hold that out of immediate and sudden provocation, on the spur of moment the appellant gave such fatal blow due to non-response of the deceased. It is noticed that while the appellant called her to wake up at that relevant time at noon, she did not pay any heed to the words of the appellant.
14. Besides this, admittedly the conviction has been based on circumstantial evidence. Following the settled law, we are of the view that the corroboration to the confession and the circumstantial evidence judged from the statements made by the appellant in his examination under Section 313 Cr.P.C. give rise to no scope to dislodge the chain of circumstantial evidence which becomes the foundation of such conviction.
15. In a recent case of Bishnu Prasad Sinha and Anr. v. State of Assam reported in 2007 AIR SCW 569, the Apex Court held that a confessional statement, as was well known, was admissible in evidence. It was a relevant fact. The Court might rely thereupon if it was voluntarily given. It might also form the basis of the conviction wherefore the Court might only have to satisfy itself in regard to voluntariness and truthfulness thereof and in given cases, some corroboration thereof. The Supreme Court in the said case was of the opinion that since the appellants were convicted only on the basis of circumstantial evidence, imposition of punishment of rigorous imprisonment for life instead of death penalty would meet the ends of justice and thus directed that both the appellants were sentenced to undergo rigorous imprisonment for life instead of death penalty. It is further held by the Supreme Court that statements made under Section 313 Cr.P.C. could not form the sole basis of conviction; but the effect thereof may be considered in the light of other evidences brought on record.
16. Having regard to the proposition of law laid down in Bishnu Prasad Sinha’s case (supra) and on meticulous analysis of the facts and circumstances of the case it its totality, we have found that the appellant acted in com-mission of the offence by grave and sudden provocation as the deceased wife did not respond to the appellant’s call in usual disobeying approach.
17. In view of the above, we are of the considered view that it is not a case for conviction of the appellant under Section 302 IPC. At best, it would be a case under Section 304 Part-II IPC. Accordingly, the sentence of imprisonment for life Under Section 302 IPC has been converted to Section 304 Part-II IPC and the appellant is sentenced to undergo rigorous imprisonment for 7(seven) year under Section 304 Part II IPC. Accordingly, we convict the appellant Under Section 304 Part-II IPC in stead of Section 302 PC.
18. Subject to the modification in the sentence to the extent indicated above, this appeal stands dismissed.
19. Before parting with the case, we would like to put on record our appreciation for Ms. K. Dutta, learned Counsel for her valuable support and legal assistance as Amicus Curiae in arriving at the above decision in this appeal. Ms. K. Dutta, learned Amicus Curiae shall be entitled to a professional fees of Rs. 2,500/-.
Send down the records forthwith.