The main legal point established in the judgment is that for a conviction under Section 302, IPC, there must be an intention to cause death or such injury likely to cause death. In the absence of such intention, the offense may fall under a different section of the IPC, such as Section 304 Part II.

JUDGMENT

Mir Alfaz Ali, J. - Heard Dr. B.N. Gogoi, learned Amicus Curiae and Mr. M. Phukan, learned Additional Public Prosecutor, Assam.

2. This jail appeal is directed against the judgment and order dated 25.09.2017 passed by the learned Sessions Judge, Karimganj in Sessions Case no. 20/2015 whereby the learned Sessions Judge convicted the appellant under Section 302, Indian Penal Code (IPC) and sentenced to rigorous imprisonment for life and fine of Rs. 500 with default stipulation.

3. The prosecution case as reflected in the FIR in brief was that the appellant married the victim and they were also blessed with two children, however, their conjugal life was not very happy and eventually on the date of occurrence, the appellant assaulted the victim being his wife demanding money whereby caused serious injury, to which the victim succumbed. Exhibit 1, FIR was lodged by Munna Das, on the basis of which police registered Karimganj Police Station Case no. 604/2014 under Sections 498(A)/304(B), IPC and on completion of the investigation, submitted charge sheet against the appellant.

4. In course of trial, learned Sessions Judge framed charge against the appellant under Section 302, IPC which was abjured by him. The prosecution examined 9 (nine) witnesses to substantiate the charge framed against the accused. On conclusion of the prosecution evidence, the appellant was examined under Section 313, CrPC, wherein the appellant had taken a plea, that when quarrel ensued between him and his wife on family issues, one Joy Dhar came to interfere, whereupon he got agitated and dealt a blow aiming at Joy Dhar. In the meantime, the victim came between them and the blow given by the appellant landed on the head of the victim which caused the injury. Thus, the plea of the appellant in the statement recorded under Section 313, CrPC was that he had no intention to cause any injury to his wife (victim) and the injury to the victim was caused accidentally. Upon appreciation of the evidence and materials brought on record, the learned Sessions Judge convicted the appellant and awarded sentence as indicated above.

5. Learned Amicus Curiae while assailing the impugned judgment does not contest the finding of the learned trial Court holding that the injury leading to death of the victim was caused by the present appellant. However, the contention of the learned Amicus Curiae is that there was no intention to cause death and, as such, the ingredients of the offence of murder as defined under Section 300, CrPC was not present. Therefore, the learned trial Court ought not to have recorded conviction under Section 302, IPC. At best, according to the learned Amicus Curiae, it was a case of culpable homicide not amounting to murder punishable under Section 304 Part II, IPC.

6. On our assessment of the evidence, we find that the learned Sessions Judge basically relied upon the oral testimony of P.W.4 and P.W.5 who are the children of the deceased, besides the medical evidence as well as the statement of the accused-appellant recorded under Section 313, CrPC.

7. P.W.4 deposed that in the morning when she woke up, she had noticed that her parents were quarrelling. The victim sent her to wash her face. Accordingly, she came out and her mother started cleaning the utensils. At that point of time, she heard the scream of her mother and immediately rushed to the place of occurrence and found her mother falling on the ground. She had also noticed her father running away from the place of occurrence throwing away the rod which was in his hand. Immediately, she informed the P.W.1, her maternal uncle about the occurrence. The evidence of P.W.4 who is none but the daughter of the accused and also the victim remained unshaken.

8. P.W.5, the son of the victim also stated in the same tune that he had noticed his parents quarrelling in the morning and when he went to wash his face, he heard the scream of his mother and immediately came into the room and found the victim falling on