Judgment & Order (Cav)

Kaushik Goswami, J.

1. Heard Ms. R. D. Mazumdar, learned Amicus Curiae appearing for the appellant. Also heard Ms. B. Bhuyan, learned Senior Counsel/Additional Public Prosecutor assisted by Ms. R. Das appearing for the State respondent and Ms. R. B. Bora, learned Legal Aid Counsel appearing for the respondent No. 2.

2. This appeal is directed against the judgment and order dated 09.02.2022 passed by the learned Sessions Judge, Karbi Anglong, Diphu in Sessions Case No. 25/2021, whereby the accused/appellant was convicted under Section 302 of the IPC and sentenced to undergo imprisonment for life and to pay fine, with default stipulation, for committing the murder of his mother.

3. The prosecution case, in brief, is that on 05.08.2021 at about 12:30 p.m., the accused/appellant, had an altercation with his mother, over domestic issues and, in a fit of rage, assaulted her on the head with a wooden lathi/battam inside their house. She sustained severe head injury and was taken first to Manja Hospital and thereafter to Diphu Civil Hospital, where she was declared dead. On the basis of an ejahar lodged by PW-1, the Gaonbura of the village, Manja P.S. Case No. 40/2021 under Section 302 of the IPC was registered and investigated.

4. On completion of investigation, charge sheet was laid against the appellant under Section 302 of the IPC. The case being triable by the Court of Session, it was committed and the learned Sessions Judge framed charge under Section 302 of the IPC against the accused/appellant, to which he pleaded not guilty and claimed to be tried.

5. The prosecution examined seven witnesses including the informant (PW-1), i.e., Sri Longsing Teron, the wife of the accused/appellant (PW-2), i.e., Smti Rima Kropi, the sister-in-law of the accused/appellant (PW-3), i.e., Smti Maloti Ronghangpi @ Timungpi, the brother-in-law (PW-4), i.e., Shri Lokhiram Terang, the doctor who conducted the post-mortem (PW-5), i.e., Dr. Samual Tokbi, the auto-driver who carried the victim (PW-6), i.e., Shri Rintu Das and the Investigating Officer (PW-7), i.e., Jitumoni Deka. The defence did not examine any witness. The statement of the accused/appellant under Section 313 of the Cr.P.C. was recorded; he admitted his presence in the house at the relevant time but offered no plausible explanation as to how his mother received the fatal injuries.

6. Ms. R. D. Mazumdar, learned Amicus Curiae for the accused/appellant contended that the conviction under Section 302 of the IPC is unsustainable. Her submissions, in substance, are:

                   (i) PW-2, the wife of the accused/appellant, has clearly stated in cross-examination that she did not see the incident, and therefore the prosecution case suffers from lack of direct evidence;

                   (ii) there are material inconsistencies in the testimonies of the witnesses;

                   (iii) the wooden lathi/battam allegedly used by the accused/appellant was not sent for forensic examination, which is a serious lapse in investigation;

                   (iv) even taking the prosecution case at its face value, it is apparent that the incident occurred during a domestic altercation when the deceased asked the accused/appellant not to consume alcohol, and the assault was a single blow with a wooden lathi without premeditation; therefore, Exception 4 to Section 300 of the IPC is attracted and the conviction ought to be altered to one under Section 304 Part II of the IPC.

7. In support, reliance is placed on the decision of the Supreme Court in Jugut Ram v. State of Chhattisgarh, reported in AIR 2020 SC 4395.

8. Per contra, Ms. B. Bhuyan learned Senior Counsel/Additional Public Prosecutor for the State respondent submitted that the conviction is well-merited. It is argued that:

                   (i) PW-2, PW-3 and PW-4, read together, clearly establish the presence and participation of the accused/appellant; PW-3 is an eye-witness and PW-2 is a natural witness who was in the house and saw the accused/appellant immediately after the assault;

                   (ii) the medical evidence of PW-5 conclusively proves that the deceased died a homicidal death due to a forceful blow on the head by a blunt object;

                   (iii) non-forwarding of the weapon for FSL examination is at best an irregularity which does not demolish the otherwise cogent evidence;

                   (iv) there was no mutual fight; the deceased merely admonished her son not to drink alcohol, whereupon he assaulted her on a vital part with great force; this conduct cannot be brought within Exception 4 to Section 300 of the IPC.

It is, therefore, submitted that the appeal deserves dismissal.

9. Ms. R. B. Bora, learned Legal Aid Counsel for the respondent No.2 by relying upon the testimonies of the eye witnesses, i.e., PW-2 and PW-3, submits that the prosecution has clearly established the guilt of the accused/appellant beyond reasonable doubt.

10. On the rival contentions, the following points arise for determination:

                   (i) Whether the death of deceased was homicidal?

                   (ii) Whether the accused/appellant is proved, beyond reasonable doubt, to have caused the said death?

                   (iii) If so, whether the offence would amount to murder within the meaning of Section 300 of the IPC or would fall under any of its Exceptions, particularly Exception 4, so as to attract Section 304 Part II of the IPC?

11. It appears from the testimony of PW-5, i.e, Medical Officer, who conducted the post-mortem examination on the body of the deceased at Diphu Medical College and Hospital, that he has deposed to the effect that there was hematoma over the whole area of the left temporal region of the scalp and extradural hemorrhage over the left cerebral hemisphere. He opined that death was due to coma resulting from injury sustained over the head, all injuries being ante-mortem and caused by blunt force impact, and that the injury on the head could be caused by a heavy wooden stick or by a similar blunt object.

12. Nothing substantial has been elicited in cross-examination to cast doubt on his opinion. The nature and extent of injury, coupled with the surrounding circumstances, leave no manner of doubt that the deceased died a homicidal death on account of a forceful blow on her head. Issue No. i is therefore, answered in the affirmative.

13. Now coming to the issue of the involvement of the accused/appellant in the offence, it appears from the testimony of PW-1, i.e, the Gaonbura and informant, who deposed that on the date of occurrence he was informed that the accused/appellant had assaulted his mother with a wooden battam. When he went to the house of the accused/appellant he found that the mother of the accused/appellant had been shifted to hospital. He lodged the ejahar (Exhibit-1).

14. PW-2, is the wife of the accused/appellant and a most natural witness. In her examination-in-chief she has stated that on the date of occurrence at about 1:00 p.m. the deceased told the accused/appellant not to consume alcohol as he was suffering from fever; the accused/appellant, in anger, assaulted the deceased on her head with a wooden lathi, whereupon she fell down on the ground and blood started oozing from her head. Thereafter, she informed PW-4, who came and the injured was taken first to Manja and then to Diphu Civil Hospital, where she later came to know that the victim had expired. She clearly stated that she saw the accused/appellant assaulting his mother with the wooden battam. In cross-examination she has said that at the time of altercation she was inside her room and came out after hearing the commotion. She denied the suggestion that she had not seen the incident and had implicated her husband on suspicion.

15. The defence lays much emphasis on the line in cross-examination that she was inside her room at the time of altercation. Read in isolation, that statement may appear to dilute her claim of having seen the actual assault. However, appreciation of evidence is not a matter of picking isolated sentences; her entire testimony must be read as a whole. In the very same deposition she has consistently asserted that she saw the accused assaulting his mother with a wooden battam, saw blood oozing from the head of the victim, and immediately informed PW-4. Her presence in the house is undisputed. The minor inconsistency as to whether she was inside when the altercation began does not discredit her substantial version that she emerged from her room during the incident and actually saw the blow and the immediate aftermath. The trial court rightly treated her as a reliable witness.

16. PW-3, the sister-in-law of the accused/appellant, has deposed that on the day of the occurrence she was in the house of the accused/appellant; she heard some sound and saw the accused/appellant assaulting his mother with a wooden lathi on her head, resulting in bleeding. She further stated that at that time PW-2, the wife of the accused/appellant, and PW-4 were also present. Her testimony corroborates the material particulars of PW-2 regarding the manner of assault and the weapon used.

17. PW-4, the brother-in-law of the accused/appellant, has stated that on being informed by PW-2 he went to the house of the accused/appellant and found that the deceased had already expired owing to a head injury allegedly caused by the accused/appellant with a wooden battam. On the next day, the police seized a wooden battam from the house of the accused/appellant under seizure list (Ext.2) where he signed as a witness, and he identified the seized stick (Material Ext-1) in court.

18. PW-6, the auto-driver, confirms that he carried the injured lady from the village to Manja, and later came to know that she had been beaten by her son. PW-7, the Investigating Officer, proves the registration of the case, preparation of sketch map, seizure of the wooden battam, recording of statements and filing of charge sheet. He admitted in cross-examination that he did not send the wooden battam for fingerprint or bloodstain examination as no blood was visible on it.

19. The omission to send the weapon to the FSL, though an investigative lapse, is sufficiently explained and, in the facts of this case, is not of such magnitude as to shake the core of the prosecution case. The ocular account of PW-2 and PW-3, corroborated by medical evidence and the seizure of the wooden battam from the house of the accused/appellant, forms a convincing chain pointing to the guilt of the accused/appellant.

20. The conduct of the accused/appellant is also significant. The consistent evidence of the prosecution witnesses is that immediately after the assault, the accused/appellant fled from the house and was not found there when PW-1, PW-4 and other villagers arrived. In his examination under Section 313 of the Cr.P.C., the accused/appellant has merely denied the allegations but has not offered any explanation as to how his mother, with whom he was residing, received the fatal head injury inside their house. In such a situation, the incriminating circumstances being within his special knowledge, his failure to explain them provides an additional link in the chain of circumstances, though the prosecution case largely rests on direct evidence.

21. On overall appraisal, this Court finds no reason to disbelieve PW-2 and PW-3. Their evidence is natural, cogent and consistent, and is fully supported by the medical evidence and other circumstances. Issue No. ii is, also therefore, answered in the affirmative. Hence, the accused/appellant is proved, beyond reasonable doubt, to have inflicted the fatal head injury on his mother with a wooden battam.

22. Now turning to the principal contention of the accused/appellant to the effect that the case is covered by Exception 4 to Section 300 of the IPC and, accordingly, the conviction should be altered to one under Section 304 Part II of the IPC, Exception 4 reads to the effect that culpable homicide is not murder if it is committed:

                   (a) without premeditation;

                   (b) in a sudden fight;

                   (c) in the heat of passion upon a sudden quarrel; and

                   (d) without the offender having taken undue advantage or acted in a cruel or unusual manner.

23. All the four requirements must co-exist for the Exception to apply.

24. The facts emerging from the evidence are that the deceased, an elderly mother, merely admonished her son not to drink alcohol as he was suffering from fever. There is no evidence of a mutual fight or of any grave and sudden provocation from the side of the deceased. The accused/appellant, in an inebriated condition, reacted by picking up a wooden battam and delivering a forceful blow on the head of his defenceless mother inside their house, causing a fracture and extradural hemorrhage leading to her death. He thereafter fled the scene instead of rendering assistance or taking her to hospital.

25. These facts do not constitute a “sudden fight” within the meaning of Exception 4. A mere unilateral assault in response to a casual admonition cannot be elevated to a mutual fight or a sudden quarrel of the nature contemplated by the Exception. Moreover, the accused/appellant clearly took undue advantage of his position as a young able-bodied male against an aged woman and acted in a cruel manner by striking a heavy blow on a vital part with a hard stick, fully knowing the likely consequences. The ingredients of Exception 4 are, thus, not satisfied.

26. The reliance placed on Jugut Ram (supra) is misconceived. In that case, on its peculiar facts, the Apex Court found that there was a sudden fight between the parties with mutual assault and that the accused/appellant had not acted in a cruel or unusual manner. The present case stands on an entirely different footing. There was no mutual fight; the victim here was the own mother of the accused/appellant, unarmed and vulnerable, and the assault was on a vital part of the body causing a grievous head injury. The ratio of Jugut Ram (supra) therefore is of no consequence in the context of the present case.

27. Considering the nature of the weapon (a sturdy wooden battam), the part of the body targeted (head) and the severity of the injury, the intention to cause at least such bodily injury as was likely to cause death is clearly deducible. The act of the accused/appellant squarely falls within clauses firstly and thirdly of Section 300 of the IPC and amounts to murder.

28. Issue No. iii is, accordingly, answered by holding that the offence proved against the accused/appellant is murder punishable under Section 302 of the IPC and not a lesser offence.

29. On re-appreciation of the entire evidence on record, this Court finds itself in full agreement with the findings and conclusions recorded by the learned Sessions Judge. The conviction of the appellant under Section 302 of the IPC is based on proper appreciation of evidence and correct application of law and calls for no interference.

30. The sentence of imprisonment for life imposed on the accused/appellant is the minimum prescribed for the offence under Section 302 of the IPC. Having regard to the circumstances that the appellant brutally assaulted his own mother, this Court finds no mitigating factor warranting any reduction of sentence.

31. The appeal is, therefore, dismissed. The conviction and sentence of the appellant under Section 302 of the IPC as recorded by the learned Sessions Judge, Karbi Anglong, Diphu in Sessions Case No. 25/2021 by judgment and order dated 09.02.2022 are hereby affirmed.

32. The accused/appellant shall continue to undergo the sentence as awarded. The Jail authorities be informed accordingly.

33. Send back the Trial Court Records forthwith along with a copy of this judgment.

34. This Court appreciates the service rendered by Ms. R. D. Mazumdear, learned Amicus Curiae and her fee is fixed at Rs. 9,000/- only and the service rendered by Ms. R. B. Bora, learned Legal Aid Counsel and the requisite fee is to be paid by the Assam State Legal Services Authority as per existing rates.