Jagannath Barman vs The State Of Assam And Anr
2021 Latest Caselaw 2008 Gua

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GAHC010117222019




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : CRL.A(J)/45/2019

            JAGANNATH BARMAN
            S/O. LT. HIRENDRA BARMAN, VILL. NO.2 HATIGARH, P.S. BAITHALANGSO,
            DIST. KARBI ANGLONG, ASSAM.

            VERSUS

            THE STATE OF ASSAM AND ANR.
            REP. BY PP, ASSAM.

            2:SRI DEBNATH BARMAN
             S/O- LATE HIRENDRA BARMAN
            VILL.- HATIGARH NO.-2
             PS- BAITHALANGSO
             DISTRICT- KARBI ANGLONG
            ASSA

Advocate for the Petitioner   : MR. BIPUL BHAGAWATI, AMICUS CURIAE

Advocate for the Respondent : PP, ASSAM

                                    BEFORE
                    HONOURABLE MR. JUSTICE N. KOTISWAR SINGH
                     HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

                                     JUDGMENT (ORAL)

Date : 31-08-2021

(N. Kotiswar Singh, J)

This is an odious Jail Appeal of matricide.

Page No.# 2/13

2. Heard Mr. B. Bhagawati, learned amicus curiae. Also heard Mr. P. Barthakur, learned

Additional Public Prosecutor, Assam.

3. The present appeal has been preferred against the judgment and order dated

12.12.2018/13.12.2018 passed by the learned Sessions Judge, Karbi Anglong, Diphu by which

the appellant was convicted under Section 302 IPC and sentenced to undergo rigorous

imprisonment for life and to pay fine of Rs.2,000/- and in default of payment of fine, to

undergo Simple Imprisonment for three months.

4. The aforesaid conviction arose out of an FIR lodged on 01.03.2015 by the informant's

brother before the Officer-in-Charge, Dalimbari PP, Karbi Anglong stating that the informant's

brother, Shri Jagannath Barman, the appellant herein, brutally killed their mother Niyati

Barman on 26.02.2015 by assaulting her with a bamboo lathi and fastening her by a bi-cycle

tube around her neck, as informed to the informant by his wife, who was present at the time

and place of the incident. It was alleged that the appellant after returning home from the

market at around 5 pm on 26.02.2015 had an altercation with his mother and the informant's

wife was also threatened when she tried to intervene and the appellant assaulted their

mother in the manner mentioned above and the appellant fled the scene after assaulting her

mother.

5. On conclusion of the investigation, charge-sheet was filed against the appellant.

6. The prosecution adduced evidence by examining six witnesses on the basis of which

the learned Trial Court after examining the evidences, convicted the appellant under Section

302 IPC and sentenced him to undergo imprisonment for life as mentioned above.

7. Let us, now, examine the evidence of the prosecution witnesses.

Page No.# 3/13

8. PW1, Sonju Mondol, a neighbour and VDP Secretary, though was not an eye witness,

came to the place of occurrence after he learnt about the incident and saw the dead-body of

the deceased lying in the courtyard and found a cycle tube wrapped around the neck of the

deceased. PW1 also found a bamboo lathi lying near the dead-body. PW1 deposed that police

seized one bamboo lathi about 3 feet long and one cycle tube from the place of occurrence.

PW1 was a witness to the seizure of the aforesaid items.

9. PW2, Dhananjay Mallik, was another neighbour. Though not an eye-witness, as a VDP

Secretary, after he came to know about the incident, came to the place of occurrence and

saw the dead-body of the deceased lying in the courtyard and found a cycle tube wrapped

around the neck of the deceased. He also saw a bamboo lathi lying near the dead-body. He

also stated that the wife of the informant informed him that the appellant killed his mother by

wrapping with a cycle tube on her neck and beating with a bamboo lathi. Thereafter, they

informed the police and police came to the place of occurrence.

10. PW3, Smt. Karabi Singha, is also another villager, who deposed that in the evening of

the day of the incident, PW5, Smti Mampi Barman came to her house and informed her that

the appellant had killed his mother. After getting the said information, PW3 rushed to the

place of occurrence and saw the deceased lying dead on the ground. She also noticed a

bicycle tube at the place of occurrence. PW3, however, stated that she did not see the

accused when she reached the place of occurrence and she did not know the reason why the

accused killed the deceased.

In the cross-examination, PW3 stated that she did not know anything about any quarrel

between the appellant and the deceased.

Page No.# 4/13

11. PW4, Dr. Norendra Nath Rajkhowa, was the doctor who conducted post mortem

examination on the dead-body of the deceased. In his deposition, PW4 described the injuries

as follows:-

"Injury of right hand with fracture at elbow joint. Also fracture of forehead bone with injury mark. Wrist joint of left side is also fractured. Bruises over the neck and mark of strangulation. No ligature mark seen. A case of physical assault causing extensive injury and fracture of forehead, left hand and neck causing hemorrhage fracture of wrist joint and forehead bone is also seen. In my opinion, the cause of death is due to shock and hemorrhage resulting from head injury. Ext.2 is the PM report, Ext.2(1) is my signature and Ext.2(2) is the signature of Superintendent of Diphu Civil Hospital and Ext.2(3) is the signature of Joint Director of Health Services, Karbi Anglong, Diphu which I know."

12. PW5, Smt. Mampi Barman, is the star witness and eye-witness primarily on whose

evidence the appellant was convicted. She stated that the complainant was her husband. The

incident took place in the year 2015. The appellant is the elder brother of her husband and,

as such, the deceased was her mother-in-law. The incident took place at about 5.30/6.00 pm.

At the time of the incident, PW5, the deceased and the appellant were living in the joint

family. It was a market day. At the time of the incident, the appellant came home in a

drunken state and after entering the house, he started an altercation with his deceased-

mother. She also stated that at the time of the incident, her mother-in-law was sitting as she

was incapable of walking. PW5 stated that at the time of the incident, she was the only other

person present in the house as at that time, her husband was staying at Bombay. She also

stated that the appellant dragged her mother-in-law to the courtyard by fastening a cycle

tube around her neck. Thereafter, PW5 went out raising alarm to draw attention of the

villagers and when she came along with the villagers, she saw the deceased lying dead in the Page No.# 5/13

courtyard. She stated that by that time, the appellant had fled from the scene. Thereafter, on

being informed by the villagers, the police arrived and took the dead-body to Diphu for post-

mortem examination and after three days of the occurrence, her husband came home and

lodged the FIR.

In her cross-examination, PW5 admitted that she did not know on what issue the

appellant had quarreled with the deceased. She also stated that the bamboo stick by which

the appellant assaulted the deceased was about 1 ½ feet long. She also stated that she was

outside the house when the appellant entered the house. She stated that after the appellant

assaulted the deceased, she called some of his villagers at her house. She also stated that

the appellant had quarreled with the deceased two days prior to the incident but she did not

inform her husband or any other person about the said quarrel.

13. PW6, Sri Hitesh Basumatary, is the Investigating Officer. In course of investigation, he

got the statement of PW4 recorded under Section 164 Cr.PC. Similarly, he also got the

confessional statement of the appellant recorded before the First Class Magistrate, Hamren.

He also deposed about seizure of a three feet long bamboo lathi, a bicycle tube and some

blood stained soil in presence of the witnesses.

During cross-examination, he mentioned that he did not examine the people residing on

the north and south of the place of occurrence and only PW5, who was the eye-witness, was

examined and only her statement was recorded. He stated that in course of the examination,

he could learn that as the deceased had asked the appellant to fetch a little kerosene, the

appellant got infuriated and killed the deceased but he did not remember who had given this

information.

Page No.# 6/13

14. On conclusion of recording of evidence from the prosecution side, the appellant was

examined under Section 313 Cr.PC in which the appellant had denied the allegations made

and claimed that the evidence adduced by the prosecution were false. The appellant claimed

that he has been falsely implicated and declined to adduce any defence witness.

15. Learned Trial Court, however, after considering the materials on record, convicted the

appellant under Section 302 IPC. In coming to the said conclusion, the learned Trial Court

relied heavily on the evidence of PW5 who was an eye witness to the assault of the deceased

by the appellant. The learned Trial Court held that the fact that the dead-body of the

deceased was lying in the courtyard and a bamboo lathi was lying near the body was amply

proved by the evidence of PW1 and PW2 apart from the evidence of PW5. The learned Trial

Court also considered the post-mortem report which was duly proved by PW4 and was

satisfied that there were sufficient medical evidences to prove that the deceased sustained

extensive injury and fracture of the forehead, fractures on elbow joint of the right hand,

forehead bone and wrist joint of left side. Bruises and strangulation marks were also found on

the neck of the deceased. According to the medical expert, the cause of death was due to

shock and hemorrhage resulting from the head injury.

16. The learned Trial Court, on the basis of the evidence of PW4, held that the cause of

death was due to shock and hemorrhage resulting from the head injury, which according to

the learned Trial Court, was fully corroborated by the eye witness account of PW5. The

learned Trial Court did not find any major contradictions in the evidence of PW5. The learned

Trial Court was satisfied that the investigation was carried out in a proper manner soon after

the information was furnished to the police. The learned Trial Court did not find any material

to disbelieve the testimony of PW5 who was very much present in the place of occurrence Page No.# 7/13

and who witnessed the incident of assault by the appellant in the manner mentioned above.

17. The learned Trial Court, under the facts and circumstances of the case, held that the

prosecution had been able to prove the case against the appellant of the charge under

Section 302 IPC and accordingly, convicted him and sentenced him to imprisonment for life.

The learned Trial Court also held that there was evidence to show that the appellant

was intoxicated at the relevant time and there was nothing on record that it was administered

without his knowledge or against his will and, as such, declined to grant any benefit under

Section 86 of the Indian Penal Code.

18. Mr. Bhagawati, learned amicus curiae, has, however, assailed the conviction of the

appellant on various grounds contending that the charge cannot be said to have been proved

beyond reasonable doubt.

19. Coming to the injuries received by the deceased, which have been mentioned in the

post-mortem report that the deceased had suffered injury of left hand with fracture at elbow

joint, forehead bone, etc, learned amicus curiae contends that nothing has come out from the

evidence as to how these injuries were caused. Though PW1 and PW2 had mentioned about

seeing a bamboo lathi near the dead-body, PW5, who was an eye witness, never stated in her

evidence that the appellant had assaulted the deceased with a bamboo lathi. Learned

amicus curiae submits that even in her statement under Section 164 Cr.PC, PW5 did not

mention about use of any such lathi to assault the deceased, though she mentioned in her

deposition before the Court. According to learned amicus curiae this is merely an

improvement, as in the statement recorded under Section 164 Cr.PC soon after the incident,

there was no reference of the use of bamboo lathi. The deposition before the Court was Page No.# 8/13

recorded after about three years of the incident merely to suit the prosecution case.

20. Learned amicus curiae also has submitted that PW5, the so-called eye-witness, has not

deposed anything about any serious injury received by the deceased which would lead to

bleeding though it is mentioned in the inquest report that the place of occurrence was filled

with blood which was flowing out of the head of the deceased on the right side and blood

stain was also seen on her face, chest, stomach, both the hands and legs. However, PW5

does not make any mention of any blood stains in her statement made under Section 164

Cr.PC or in her deposition before the Court at the time of trial. Neither any of the prosecution

witnesses, i.e., PW1, PW2 and PW3, who came to the place of occurrence later on and saw

the deceased lying in the courtyard mentioned anything about any such blood injury.

Learned amicus curiae also submitted that even though PW1 and PW2 mentions about

a lathi lying near the dead-body, PW3, who also came to the place of occurrence, did not

mention anything about any such lathi.

21. Learned amicus curiae further submits that PW5, who was a eye-witness, did not

categorically state before the Court or in her statement under Section 164 Cr.PC the manner

in which the appellant had assaulted the deceased. This, according to learned amicus curiae,

is a serious flaw inasmuch as the injuries which were inflicted and reflected in the post-

mortem report are of serious nature, which, however, does not find any mention in the

evidence and how the injuries were caused in any of the oral evidence of the witnesses.

Thus, according to the learned amicus curiae, these discrepancies and inconsistencies in the

evidences as regards the injuries caused vis-à-vis the injuries reflected in the post-mortem

report would show that the injuries mentioned in the post-mortem report have not been Page No.# 9/13

explained properly. It has been, accordingly, contended that there is no evidence to implicate

the appellant of causing such injuries as nobody has testified that the appellant had caused

such injuries. In other words, there is no evidence on record except the post-mortem report

that the deceased received such injuries.

22. Learned amicus curiae also submits that there is no evidence to show that it was a

pre-meditated murder. There is no evidence whatsoever about any previous fight or enmity

between the appellant and the deceased. In fact, PW5 stated that she did not inform

anybody about the previous fight which took place prior to the incident. PW3 in the cross-

examination stated that she has no knowledge about any quarrel between the appellant and

the deceased. Thus, in the absence of any motive to kill the deceased, it cannot be said that

there was really any intention to cause death and, as such, the appellant cannot be convicted

under Section 302 IPC. At best, it can be a culpable homicide not amounting to murder as the

death was not pre-meditated but it was due to a sudden fight erupting between the appellant

and the deceased.

In this regard, learned amicus curiae has drawn attention of the Court to the

confessional statement of the appellant which was recorded on 26.02.2015 in which it was

mentioned that when he returned home, the appellant found his mother in a drunken state

and in an inebriated condition she was shouting and speaking rubbish. Then the appellant

asked her to stop shouting and threatened to kill her, not really intending to kill, but merely to

stop her drinking and shouting. However, as she did not stop, the appellant could not control

himself and did not know what had overcome him and at the spur of the moment, he

wrapped a cycle tube that was in the house around her neck and asked her to stop drinking

and shouting without even imagining that this could lead to her death. In the confessional Page No.# 10/13

statement, it was also mentioned that the appellant only wanted to frighten the deceased

into silence as the deceased always used to misbehave and used to become very abusive

whenever she drank, which the appellant could not bear.

23. On the basis of the aforesaid confessional statement of the appellant, learned amicus

curiae submits that the case of the appellant, at best, would fall under the Exception 4 to

Section 300 IPC.

Exception 4 to Section 300 IPC reads as follows:-

"Exception 4. Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner."

24. It has been submitted that the appellant was overcome by anger because of the

constant abusive behaviour of his mother and he merely did the aforesaid act to threaten her

but not really meant to kill her.

25. As regards the submission of learned amicus curiae that there is no sufficient evidence

to implicate the appellant about the various injuries sustained by the deceased as reflected in

the post-mortem report, we do not agree with this submission. There are sufficient evidences

to corroborate the injuries received by the deceased. PW1 and PW2 mentioned that they saw

a bamboo lathi near the dead-body. PW5, the lone eye-witness, had categorically stated

before the Court during the cross-examination that the appellant was beating her mother-in-

law with a bamboo lathi. Even if she had not mentioned in her statement under Section 164

Cr.PC of the use of bamboo lathi, the fact that the deceased was assaulted with a bamboo

lathi stands corroborated by the statement of PW1 and PW2 who saw the bamboo lathi lying Page No.# 11/13

nearby and the seizure of the same from the place of occurrence by the Investigating Officer.

The PW5 had stated in her deposition that the appellant beat her and made it more specific

in the cross-examination, stating that he beat her with the bamboo lathi.

26. Coming to the cause of death, it was due to shock and hemorrhage resulting from the

head injury. It is sufficiently corroborated by the post-mortem report, which, in turn, gets

corroborated by the evidence of PW5 that the appellant hit the deceased with a bamboo

lathi. PW1 and PW2 had mentioned of the presence of the lathi near the body of the

deceased. We have also noted that the evidence of PW5 could not be shaken. In fact, PW5

had clearly stated in the cross-examination that the appellant had assaulted the deceased by

hitting with a bamboo lathi which was about 1 ½ feet long.

27. As regards the allegation that the deceased was dragged by using a bicycle tube also

stands corroborated by the post-mortem report in which bruises over the neck and marks of

strangulation have been recorded, which, in turn, was corroborated by the statement of PW5

who witnessed the appellant dragging the deceased by fastening a cycle tube around her

neck.

28. Under the circumstances, we are satisfied that the appellant had caused the death of

the deceased by hitting her with a bamboo lathi causing severe injuries on her person and

also by dragging her by a cycle tube by tying it around her neck.

29. The only issue which can be considered is whether the appellant can be given the

benefit of Exception 4 of Section 300 IPC to convert his sentence from Section 302 IPC to

Section 304 Part-II IPC.

Page No.# 12/13

30. To bring an offence within the purview of Exception 4 of Section 300 IPC, the following

conditions have to be fulfilled:-

(1)The homicide must be committed without pre-meditation;

(2) It must have happened in a sudden fight in the heat of passion upon a

sudden quarrel;

(3) Such an act must have been done without the offender having taken undue

advantage or acted in a cruel or unusual manner.

31. We are of the view that even if the benefit of doubt can be given to the appellant

keeping in mind the aforesaid condition Nos.1 and 2, we are not satisfied that the third

condition, namely, "such an act must have been done without the offender having taken undue

advantage or acted in a cruel or unusual manner " is fulfilled. The fact remains that there is

evidence to show that though the deceased was a 45 years old lady, she was incapable of

walking as stated by PW5 which fact has not been disputed even by the appellant. The fact

also remains that the deceased was the mother of the appellant. We fail to understand how a

mother, who was not capable of walking, could be assaulted grievously by a bamboo lathi and

thereafter dragged by a cycle tube by tying in her neck by her own son will not amount to

cruel or unusual act. We are of the view that the appellant had also taken undue advantage

of his dominant physical strength while assaulting his mother who was not even capable of

walking. Further, the assault consisted of a series of acts. First, the appellant beat the mother

by a bamboo lathi. Thereafter, she was dragged by neck with the cycle tube. In short, it was

diabolic, not indicative of a case of sudden and grave provocation or impulsive act. There is

also evidence that the appellant was intoxicated as deposed by PW5. Therefore, we are of Page No.# 13/13

the view that Exception-4 to Section 300 IPC as contemplated under the Indian Penal Code is

not attracted in the present appeal and, hence, we are not inclined to interfere with the

conviction and the sentence passed against the appellant.

32. Mr. B. Bhagawati, learned amicus curiae, who has ably assisted this Court in conducting

this jail appeal, may be given the honorarium in the same rate as given to the other Legal Aid

Counsel under the Rules.

33. With the above observation, the present appeal stands dismissed.

34. Remit the Lower Court Records to the concerned Court for doing the needful.

                JUDGE                                  JUDGE




Comparing Assistant