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2007 Supreme(Gau) 397
GAUHATI HIGH COURT
Aftab H.Saikia,R.B.Misra, JJ.
Maheswar Majhi -Appellant
Versus
State of Assam -Resopndent
Criminal Appeal No. 240(J) of 2002
Decided On : 05-06-2007
K.C.Mahanta, T.J.Mahanta
The main legal point established in the judgment is that sudden provocation leading to the deprivation of self-control can influence the court to convert a conviction from section 302, IPC to section 304, Part II, IPC.
Headnote:
Extra Judicial Confession - Criminal Law - IPC Section 302, IPC Section 304 - The judgment discusses the evidence presented in the case and the court's analysis of the testimonies, medical evidence, and the appellant's statement under section 313, Cr.PC. The court found that the conviction under section 302, IPC cannot be sustained and converted it to one under section 304, Part II, IPC, as the appellant appeared to have been deprived of his power of self-control by sudden provocation and caused the death of his father without any intention.
Fact of the Case:
The appellant faced trial for an offence under section 302, IPC pertaining to the killing of his father. The trial court found the appellant guilty and sentenced him to life imprisonment. The appellant appealed against the conviction.
Finding of the Court:
The court found that the evidence presented did not inspire confidence to believe that the appellant was guilty of killing his father. The medical evidence did not support the use of an axe, and the appellant's statement under section 313, Cr.PC indicated sudden provocation. The court converted the conviction to one under section 304, Part II, IPC and ordered the appellant's release.
Issues: The issues revolved around the reliability of the evidence, the use of an axe in the killing, and the appellant's state of mind during the incident.
Ratio Decidendi: The court's decision was influenced by the lack of reliable evidence, the absence of corroborating testimonies for the extra judicial confession, and the appellant's statement indicating sudden provocation, leading to the conversion of the conviction from section 302, IPC to section 304, Part II, IPC.
Final Decision: The appeal was allowed, the conviction under section 302, IPC was converted to one under section 304, Part II, IPC, and the appellant was ordered to be set at liberty.
1. Heard Mr. T.J. Mahanta, learned counsel who has been appointed as amicus curiae in place of Mrs. Nandita Moral, as the said appointed amicus curie is found to be absent when the matter is called upon for hearing.
2. Also heard Mr. K.C. Mahanta, learned P.P, Assam representing the State.
3. The appellant faced the trial for commission of an offence under section 302, IPC pertaining to the killing of his father Harua Majhi.
4. The trial court, having appreciated the material evidence of as many as 7 witnesses so produced by the prosecution, found the appellant guilty of the offence under section 302, IPC and accordingly sentenced him to undergo Rigorous Imprisonment ('the R.I.') for life with a fine of Rs. 1,000 in default to further R.I. for another 6 months by passing its judgment and order dated 19.3.2002 in Sessions Case No. 88(S-C) 2001.
5. The prosecution case in brief may be noticed. On 12.9.1997 in the night, the appellant murdered his father Harua Majhi ('the deceased') by assaulting him with an Axe. The deceased's other son and brother of the appellant Bishnu Majhi P.W-1 lodged the ejahar with the concerned Police station having been written by one Rupeswar Gogoi, P.W-2, Goan Burah on 13.9.1997.
6. On the basis of such FIR, the investigation ensued and the dead body of the deceased was sent to post mortem examination to be conducted by P.W-4 Dr. Anil Sarma.
7. On 13.9.1997 the appellant himself surrendered before the concerned Police Station and he was arrested on 14.9.1997 and sent to custodial detention.
8. It has come on record that the appellant-petitioner was released on bail on 16.12.1997 after completion of three months of statutory period of detention. During the trial before the learned Sessions Judge, the appellant was while on bail, found to be absent for which non bailable warrant of arrest was issued against the appellant on 18.4.2001 and the same was executed on 23.5.2001 and thereafter he was sent to custodial detention and meanwhile the abovementioned conviction and sentence was handed down to him by the impugned judgment on 19.3.2002.Consequently he has been put in incarceration till date.
9. We have meticulously scrutinized the testimony of all the 7 witnesses including the P.W-4, the Doctor, Anil Sarma who conducted autopsy of the deceased and P.W-7 the Investigating Officer ('the I.O.').
10. P.W-1, Bishnu Majhi, the informant, in his deposition stated that the accused Maheswar Majhi was his brother and deceased was his father and one day at about 4 years back, the appellant along with his wife went to his house and told him that he killed his father-the deceased and then the appellant went to the Police station. Then this witness informed the Goan Burahs, i.e., P.W-2 and P.W-3 as according to him, there were two Goan Burahs-one was P.W-2, Shri Rupeswar Gogoi and other was P.W-3 Shri Chandra Kanta Gogoi. He lodged an Ejahar written by P.W-2, Shri Rupeswar Gogoi. In cross-examination this witness claimed that they were not in good term with their father. Even the deceased used to quarrel with him and the accused. Their father was addicted to smoking and drinking. This witness deposed that he had separated from his father since last five years. He stated that they had regular quarrel with their father. He also deposed in his cross-examination that the deceased*used to abuse to the wife of the appellant. Around 4 a.m. on that day the accused and his wife informed him about the occurrence by coming to his house.
11. P.W-2, Shri Rupeswar Gogoi, the Scribe of the Ejahar, told that at about 6 a.m on 13.9.1997 the accused's elder brother Bishnu P.W-1 went to his house and told him that the accused killed his father-the deceased. Having had his bath and tea, he went to the house of the accused accompanied by another Goan Burah Chandra Kt. Gogoi, P.W-3 and found the-door of the accused-appellant under lock. The wife of the appellant unlocked the door and from the doorstep he along with P.W-3 saw tha
