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2014 Supreme(Gau) 1043
Gauhati High Court
C.R. Sarma, P.K. Saikia, JJ.
Raghu Nath Routia - Appellant
Versus
State of Assam - Respondent
Crl. A. No.88 (J) of 2011
Decided On : 09-12-2014
For the Petitioner: M.B. Baruah.
For the Respondent: Mr. D. Das.
Headnote:
Indian Penal Code, 1860 - Section 302 - Penalty - Imprisonment for life - Appeal is directed against the Judgment passed by the learned Addl. Sessions Judge in Sessions Case convicting the accused /appellant, of offence and sentencing him to undergo imprisonment for life and also to pay a fine in default S.I. for 1month for the aforesaid offence - Held, It is well apparent from the record that the general health of the deceased was far from satisfactory, may be for her habit of regular drinking which means that she must be suffering from some other alcohol related ailments - When all these things are considered together, one would find that the accused had killed his wife on the night in a sudden fight in a heat of passion upon a sudden quarrel - So situated, in our considered opinion, the accused person cannot be said to have committed offence - Rather, he needs to be held guilty of offence U/s 304 Part-II IPC since all materials on record show that he caused the death of his wife with the knowledge that his act of assault is likely to cause her death but without any intention to cause death or with intention of causing such bodily harm as is likely to cause her death - Appeal allowed.
2. Heard Ms. M.Buzarbaruah, learned Amicus Curiae appearing for the accused/appellant. Also heard Mr. D.Das, learned Addl. Public Prosecutor, Assam, appearing for the State respondent.
3. The projected case of the prosecution, in short, is that on 26.09.2010 at about 7 P.M. the accused person allegedly caused the death of his wife Dipa Rautia by strangulating her. In that connection, an FIR was lodged with the Office-in-Charge, Sapekhati Police Station (in short, O/C, Sapekhati P.S) on 27.09.2010. On receipt the FIR, O/C, Sapekhati P.S registered a case vide Sapekhati P.S Case No.70/2010 and ordered one Sri Nabin Ch.Gogoi, S.I. of Police to investigate the case.
4. Being so entrusted with the investigation of the case, the I.O. visited the place of occurrence, held inquest on the dead body and sent the same to the hospital for post mortem examination, examined the witnesses and did other needful and on conclusion of investigation, the police officer, who was entrusted with the investigation, submitted charge sheet U/s. 302 IPC against the accused person and forwarded him to the court to stand his trial there for the offence aforesaid.
5. The learned Magistrate, before whom charge sheet was so laid, committed the case to the Court of Sessions since the offence U/s. 302 IPC is exclusively triable by a Court of Sessions. On commitment of the case, the learned Sessions Judge , Sivasagar transferred the same to the file of the learned Addl. Sessions Judge (FTC), Sivasagar for disposal in accordance with law.
6. The learned Addl Sessions Judge( FTC), Sivasagar on receipt of the case on transfer and on hearing the learned counsel for the parties, framed charge U/s 302 IPC against the accused person and the charge, so framed, on being read and explained to the accused person, he pleaded not guilty and claimed to be tried. During trial, the prosecution had examined as many as 10 (ten) witnesses including the informant, Medical Officer (M.O.) and the Investigating Officer (I.O.).
7. The statement of the accused person was also recorded U/s. 313 CrPC. The accused person took the stand that on the fateful night, his wife Dipa Rautia drunk heavily for which got intoxicated and then quarreled with him for which he got angry and assaulted her and subjected her to several kicks and blows for she sustained injuries and got killed. He, however, had no intention to kill his wife. But he did not adduce any evidence in support of such claim.
8. On conclusion of the trial and on hearing the arguments, advanced by the learned counsel for the parties, the learned court below was pleased to convict the accused person of offence U/s. 302 IPC and sentenced him punishment as aforesaid. It is that judgment which has been assailed in the present appeal citing several infirmities in the judgment under challenge.
9. The learned Amicus Curiae appearing on behalf of the accused person strenuously submits that the prosecution case is based on circumstantial evidence as well as dying declaration reportedly made by the accused person before PW 1, Delip Majhi, PW 2, Birsing Rautia and PW 3, Niveswar Chetia . According to the learned Amicus Curiae, the dying declaration aforesaid are not uniform in contents and stuffs.
10. In that connection, it may be stated that though PW 2 states that the accused person admitted to have killed his wife by slapping her on the night in question, yet, PW 3 deposes that the accused admitted to have killed his wife subjecting her to various of kicks. On the other hand, though PW 1 deposes that the acc
