Nirmal Chouhan vs The State Of Assam
2021 Latest Caselaw 491 Gua

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GAHC010085042019




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

                                     Case No. : CRL.A(J)/18/2019

               NIRMAL CHOUHAN
               S/O. SHRI SULTUN CHOKUHAN VILL. DHARMANAGAR, P.S. BAKALIA,
               DIST. KARBI ANGLONG.



               VERSUS

               THE STATE OF ASSAM
               REP. BY PP, ASSAM.



Advocate for the Petitioner      : MR. ANJAN KALITA, AMICUS CURIAE

Advocate for the Respondent : PP, ASSAM

BEFORE HONOURABLE MR. JUSTICE MIR ALFAZ ALI HONOURABLE MR. JUSTICE MANISH CHOUDHURY

JUDGMENT AND ORDER (ORAL)

11.02.2021 (Mir Alfaz Ali, J.)

Heard Mr. A. Kalita, learned Amicus Curiae representing the appellant as well as Mr. M. Phukan, learned Additional Public Prosecutor, Assam for the State Respondent. Also heard Mr. Z. Alam, learned counsel appearing for the informant.

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2. This appeal is directed against the judgment and order dated 27.11.2018 passed by the learned Sessions Judge, Karbi Anglong, Diphu in Sessions Case No. 44/2015, whereby the learned Sessions Judge convicted the appellant under Section 302 IPC and sentenced him to rigorous imprisonment for life and fine of Rs.5,000/- with default stipulation.

3. As per prosecution case, on 09.08.2014 at about 8.30 AM, the appellant inflicted injury to the victim being her own daughter with a piece of wood and the victim later on succumbed to the injuries.

4. The FIR (Exhibit-4) was lodged by the mother of the victim on the basis of which Police registered Bakalia P.S. Case No. 54/2014 under Section 302 IPC and after completing the investigation submitted charge-sheet against the appellant. During trial, the charge was framed by the learned trial Court under Section 302 IPC against the accused to which he pleaded not guilty. Prosecution examined 14 (fourteen) witnesses to substantiate the charge and on appreciation of the evidence, learned trial Court convicted the appellant and awarded sentence as indicated above.

5. On our assessment of the evidence and the materials brought on-record, we find that the learned Sessions Judge recorded the conviction of the appellant primarily basing on the oral testimony of PW-2 and PW-3 being the wife and daughter of the accused respectively as well as the judicial confession made by the appellant, besides, the medical evidence.

6. As per the PW-8, Dr. Surajit Kumar Marak, who conducted the autopsy, the victim sustained an injury over the "mid-parietal region and occipital region with compound fracture of parietal bones and lacerated parietal lopes with intracranial hemorrhage and haemotama". In the opinion of the Doctor, the injuries were ante-mortem and caused by blunt object. The evidence of the Doctor remained unchallenged.

7. PW-2, mother of the victim, deposed in her evidence that while she was working in the paddy field her husband and the victim were at home. At about 8 to 9 AM, one Churamir came Page No.# 3/5

to the working field and asked her to go home immediately. While she was proceeding to her home, she met her husband who was coming from home and on being asked by her the accused told that he had killed his daughter Punam Kumari. She also stated that immediately after the occurrence her husband surrendered before the Police.

8. PW-3, sister of the victim, deposed that at the time of occurrence her mother was working in the field. She along with her father, the victim and her brother Raja were at home. She further stated that her father assaulted the victim with a piece of wood on her head causing injury and later on, the victim died. She also stated that after inflicting the injury to the victim her father (appellant) surrendered before the Police. The oral testimony of this witness, who happens to be the own sister of the deceased and daughter of the accused, remained totally unshakened.

9. The statement of the PW-2 and 3 recorded under Section 164 CrPC, has been proved as Exhibit- 12 and 13, which shows that, the evidence given before the Court was consistent and coherent with the statement recorded under Section 164 CrPC.

10. The appellant, in his confessional statement, stated that the victim often used to go out of the house and used to come back late and had been maintaining illicit physical relation with some boys. He was told by the neighbours about the conduct of his daughter. On the date of occurrence also while he was ploughing the field, one of his neighbours came and told him about the character of her daughter (victim) and hearing about the immoral activities of her daughter he became angry and out of anger hit the victim with a wooden stick which ultimately became fatal.

11. We find that there is nothing to disbelieve the confessional statement made by the accused-appellant which appears to be consistent with the oral testimony of PW-3, who was an eye witness as well as the oral testimony of PW-2, who deposed about an extra-judicial- confession made before her by the appellant. The medical evidence, as deposed by PW-9, is also consistent with the judicial confession made by the accused as well as extra-judicial- confession as deposed by PW-3 and the testimony of PW-2 that the victim was assaulted with a wooden stick, inasmuch as, according to the Doctor (PW-8) the injury on the head of the Page No.# 4/5

deceased was caused by blunt object. On the basis of the above evidences, the learned trial Court recorded the conviction of the appellant and awarded sentence.

12. The learned Amicus Curiae has not contested the findings of the learned trial Court that the injury which ultimately caused death of the victim was inflicted by the appellant. However, the contention of the learned Amicus Curiae is that there was no intention to cause death of the victim by the appellant being her father, but the injury was inflicted due to sudden provocation when he was told about the immoral activities of her daughter and as such, the conviction of the appellant could not have been recorded under Section 302 IPC. Learned counsel Mr. Z. Alam, appearing for the respondent-informant as well as the learned Additional Public Prosecutor has also very fairly conceded to the above submissions of the learned Amicus Curiae.

13. From the above evidence-on-record, it is apparent that a single blow was given on the head by a wooden stick and immediately after inflicting the injury the appellant surrendered before the Police. It is also discernible from the evidence of the prosecution witnesses as well as the confessional statement of the appellant that there was reasonable ground for being provoked by the appellant, being a father of a grown-up girl, inasmuch as, the villagers had repeatedly complaining about the immoral activities of the victim and on the date of occurrence also, when he received the complaint regarding immoral character of his daughter he lost self control and dealt a blow on the head of the victim. The above circumstances that the appellant assaulted the victim being her daughter under sudden provocation and that a single blow was given by a blunt weapon clearly demonstrates that the appellant neither had any intention to cause death nor any intention to cause such grave injury as is likely to cause death. Therefore, we are of the considered opinion that conviction of the appellant could not have been recorded under Section 302 IPC, inasmuch as, the basic ingredients to constitute an offence of murder as defined under Section 300 IPC was totally absent in the instant case and as such, the conviction of the appellant under Section 302 IPC cannot be sustained. Accordingly, we set aside the conviction of the appellant under Section 302 IPC, instead, we convict him under Section 304 Part-II of the IPC. It is discernible from the record that the appellant is in custody for 7 (seven) years.

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14. Having regard to the facts and circumstances of the case, under which the appellant inflicted the injury to his daughter (the unfortunate victim), the sentence for the period which the appellant had already undergone would meet the ends of justice. Accordingly, we modify and reduce the sentence of imprisonment to period which the appellant has already undergone. The sentence of simple imprisonment awarded by the learned trial Court in default of payment of fine is also reduced to 1 (one) month.

15. With the above modification and alteration in conviction and sentence, the appeal is partly allowed. On payment of the fine or after completing the default sentence of 1 (one) month the appellant shall be released, if not required in any other case.

16. Appreciating the assistance rendered by Mr. A. Kalita, learned Amicus Curiae, it is provided that he will be entitled to professional fees of Rs.7500/-. Upon production of a copy of this judgment Gauhati High Court Legal Services Committee shall pay the fee to Mr. Kalita.

17. Send back the case records.

              JUDGE                                              JUDGE

Comparing Assistant