IMPORTANT POINT
Unintentional homicide is not murder.

JUDGMENT :

1. Leave granted.

2. The Gauhati High Court has dismissed the jail appeal, vide the impugned judgment dated 12.03.2019, preferred by the appellant against the judgment and order dated 03.10.2016, passed by the learned Sessions Judge, Jorhat whereby the appellant was held guilty of having committed the murder of his son-in-law, namely, late Markush Borja and sentenced to undergo life imprisonment with a fine of Rs. 10,000/- with the stipulated imprisonment of six months on default of payment of the fine amount in Sessions Case No. 188(J-T)/2015, arising out of Titabar P.S. Case No. 65/2015.

3. The above-stated FIR, under Section 302 IPC, was registered on the receipt of an ejahar submitted by PW-8 (Well Borja), on the same day, to the effect that his younger brother- Markush Borja had been assaulted and killed by the appellant with a bamboo stick. The occurrence took place inside the house of the appellant. The informant had gone to the house of the appellant and found his brother, who had been staying with his in-laws for the last 3/4 months, lying dead.

4. Following the registration of the FIR, the appellant was arrested and a charge-sheet under Section 302 IPC was filed against him. The prosecution examined nine witnesses including the wife of the appellant-Mononit Jajara (PW-5) and his daughter-Sarani Boria (PW-6). The appellant’s wife supported the prosecution’s case to the extent that her son-in-law was killed by the appellant. However, she did not witness the occurrence as she could not enter the house out of fear. The statement of the appellant’s daughter, who is the wife of the deceased (PW-6), has a direct and material bearing on the fate of this appeal. Hence, we propose to reproduce her statement in extenso, which reads as under:

“I know accused Sri Markash Jajara who is present in the dock of the court today. The accused is my father.

I also knew deceased Markush Borha who happened to be my husband.

The incident occurred about one and a half years back. On the date of incident I alongwith my husband proceeded towards the house of our parents as they were suffering from illness.

On the date of incident I was present at my work place. When I returned back home at about 4 P.M. I came to know that my husband had been murdered by my father [accused].

Out of fear I did not enter into the house. When police arrived at our house then only I entered into my house.

I noticed the dead body of my husband lying in the floor of the kitchen of the house. I questioned my father about the incident and he confessed before me that he had murdered my husband. Police took the dead body of my husband to the hospital for post-mortem examination. My father was also taken to the police station.

CROSS-EXAMINATION: ON BEHALF OF ACCUSED

I do not know anything about the incident. I did not witness the incident.

We reside separately from our parents. My parents resided alongwith my brother and his wife.

My husband was an alcoholic person. Prior to the date of incident my husband used to quarrel with me as well as with my father after consuming alcohol. My father murdered my husband as he used to ill-treat me after consuming alcohol.

My father confessed before me that he had murdered my husband with a piece of bamboo.”

5. The other material witness examined by the prosecution includes PW-8 (Well Borja)- the brother of the deceased, who is also admittedly not an eye witness. Having come to know that his brother had been assaulted by the appellant, he reached the place of occurrence and saw his younger brother lying dead on the floor.

6. It may also be mentioned at this stage that as per the postmortem report, the deceased suffered the following injuries:

“1. Laceration of size 7 cm x 1 cm x muscle deep is present over right forehead, 3 cm from mid-line and 2.5 cm above eyebrow.

2. Laceration of size 2 cm x 1 cm x muscle deep is present over left mastoid region.

3. Laceration of size 2 cm x 1 cm x muscle deep is present just below the chin and placed obliq