The conviction for murder under Section 302 IPC was upheld as the act did not constitute a lesser offence due to absence of premeditation or mutual combat, with clear evidence supporting the intentional fatal assault.

JUDGMENT :

Kaushik Goswami, J.

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. Bhuy