Badan Soren vs The State Of Assam
2022 Latest Caselaw 4742 Gua

                                                                          Page No.# 1/11

GAHC010117022019




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

                               Case No. : CRL.A(J)/35/2019

            BADAN SOREN
            KOKRAJHAR.

            VERSUS

            THE STATE OF ASSAM
            REP. BY PP, ASSAM.


Advocate for the Petitioner   : MR. AZAD AHMED, AMICUS CURIAE

Advocate for the Respondent : PP, ASSAM

BEFORE HON'BLE MR. JUSTICE SUMAN SHYAM HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

Date of hearing : 02.12.2022.

Date of judgment :            02.12.2022.


                                JUDGMENT & ORDER (Oral)

(Suman Shyam, J)

Heard Mr. A. Ahmed, learned Amicus Curiae appearing for the appellant. Also

heard Ms. B. Bhuyan, learned senior counsel (Addl. P.P., Assam) assisted by Mr. J. Das, Page No.# 2/11

Advocate appearing for the State/respondent No.1. None has appeared for the

informant/respondent No.2.

2. Being aggrieved by the judgment dated 18.01.2019 passed by the learned

Sessions Judge, Kokrajhar in connection with Sessions Case No.150/2016 convicting

the appellant under Section 302 of the Indian Penal Code (IPC) for committing the

murder of his father and sentencing him to undergo rigorous imprisonment for life and

also to pay fine of Rs.30,000/-, the instant appeal has been preferred from the Jail.

3. The prosecution case, in a nutshell, is to the effect that on 14.06.2016, at about

9:00 p.m., the accused/appellant Sri Badan Soren, who was out somewhere and

returned home, he struck his father Maikel Soren on the head with a 'lathi' (stick)

causing grievous injury on his head leading to his death. The accused had also hit his

mother with the 'lathi' causing injury on her body.

4. On 16.06.2016 the mother of the accused and the wife of the deceased viz.

Smti. Sita Hembram lodged an ejahar before the Officer-in-Charge of Serfanguri

Police Station reporting the incident. However, it appears that immediately after the

occurrence, i.e. on 15.06.2016 itself, the appellant had surrendered at the Police

Station. On the basis of such input received from the appellant, Serfanguri P.S. GD

Entry No.268 dated 15.06.2016 was made. Thereafter, on receipt of the ejahar dated

16.06.2016, SFS P.S. Case No.41/2016 was registered against the accused under

Section 302 of the IPC and the matter was taken up for investigation by the police.

On completion of investigation, the Police had submitted charge-sheet against the

accused/ appellant under Section 302 of the IPC. Based on the charge-sheet Page No.# 3/11

submitted by the Police, the learned trial court had framed charge against the

accused under Section 302 of the IPC. The charge so framed was read over and

explained to the accused. However, since the accused had pleaded innocence, the

matter went up for trial.

5. During trial, the prosecution side had examined as many as six witnesses

including the informant Smti. Sita Hembram (PW-2), the doctor who had conducted

the post-mortem examination viz., Dr. Nihar Ranjan Biswas (PW-1) and the two I.Os.

who had conducted investigation and submitted charge-sheet i.e. PWs-5 and 6

respectively. On completion of recording of evidence of the prosecution side, the

statement of the accused was recorded under Section 313 Cr.P.C. wherein, he had

denied all the incriminating circumstances put to him. As a matter of fact, in reply to

the question No.7, the accused had not only pleaded innocence but had also taken

the plea of alibi by stating that at the time of the occurrence he was not present at

home but had gone to Janagaon to watch a football match and stayed in the

house of his friend Sakla Mardi after having dinner. The defence side, however, did

not adduce any evidence. On completion of trial, the learned court below has held

that the charge brought against the accused/appellant under Section 302 of the IPC

stood established beyond reasonable doubt. Accordingly, the accused was

convicted and sentenced as aforesaid.

6. By referring to the materials on record, Mr. Ahmed, learned Amicus Curiae has

argued that there is evidence to show that the victim had fallen down on the ground

after being struck by the appellant. The medical report does not clearly establish as Page No.# 4/11

to which of the injuries sustained by the victim was on being struck by the appellant

and which was caused due to falling on the floor. Since there is possibility of the

deceased sustaining injury due to falling down on the floor, hence, it is doubtful as to

whether the victim had died due to injuries caused by the appellant. It is also the

submission of Mr. Ahmed that there is evidence to show that the occurrence was

preceded by a quarrel and in all probability the appellant was in an inebriated state.

Under the circumstances, submits Mr. Ahmed, this case would come within the sweep

of the 4th Exception to Section 300 of the IPC. On such count, Mr. Ahmed has prayed

for conversion of the conviction of the appellant in the event the court finds this is not

a fit case for acquittal. The learned Amicus Curiae has also tried to impress upon this

Court to award lesser sentence on the appellant by urging that at the time of the

occurrence, the age of the appellant was around 20 years and therefore, keeping his

future in mind, the court may take a lenient approach towards the appellant.

7. Responding to the above, Ms. Bhuyan, learned Addl. P.P., Assam has argued

that the prosecution case stands firmly established from the testimony of the

informant i.e. the mother of the appellant and the wife of the victim viz. PW-2, who

had seen the occurrence. She had categorically deposed as to the manner in which

the appellant had struck his father (the victim) on his head with a 'lathi' causing

multiple injuries. The medical evidence clearly establishes the fact that the victim had

died a homicidal death due to the injuries suffered on the head. Since the appellant

had struck his father on the vital parts of the body, more than once, causing grievous

injuries leading to his death, according to the learned Addl. P.P., there is no scope to Page No.# 5/11

hold that the appellant was not responsible for the death of his father. Ms. Bhuyan

has, however, submitted in her usual fairness that it could be a case where there was

no pre-meditation and in such an event, this Court may consider the submission of

the appellant's counsel to award a lesser sentence to the appellant.

8. We have considered the submissions made by the learned counsel for both

the sides and have meticulously examined the materials available on record.

9. From the evidence of PW-1 i.e. Dr. Nihar Ranjan Biswas it has been firmly

established that the victim had died a homicidal death due to the injuries suffered on

his head. As per the medical evidence, the following injuries were found on the dead

body :-

"Rigor mortis present in upper and lower limbs only. Split lacerated injury over the right side of forehead measuring 6" x ½" x scalp deep. Split lacerated injury over right temporal region measuring 3" x ½" scalp deep. Fracture bone. Blood clot seen frontal region of brain. A black bruise present over right shoulder joint. Abrasion on left knee joint. Abrasion over left leg over left ankle joint (Anterior) and no other injury seen."

The doctor has opined that cause of death was instant shock due to head injury

which was caused by blunt object and ante-mortem in nature. The PW-1 has also

proved the post-mortem report Ext-1 by identifying his signature therein. Cross-

examination of this witness was declined by the defence side.

10. PW-2, Sita Hembhrom is the informant in this case. She is the mother of the

appellant and wife of the victim. PW-2 has deposed that just before the occurrence,

the appellant/accused was involved in a quarrel with his father. It was the Page No.# 6/11

appellant/accused who had killed her husband and he died instantly. PW-2 has

confirmed that her statement was recorded by the Magistrate under Section 164

Cr.P.C. During her cross-examination, PW-2 has deposed that her son was jobless. The

incident occurred at night in the month of June when she was at the verandah. She

had asked the accused to earn. According to PW-2, the accused was in a state of

intoxication at that time. The accused had also assaulted her. PW-2 has confirmed

that she had lodged the ejahar on the next morning of the incident.

11. The testimony of PW-3, Gunja Tirki is not of much significance in this case as he

did not see the occurrence. His evidence is merely of hearsay nature. Hence, we do

not deem it necessary to deal with his testimony.

12. PW-4, Sri Mantu Rawani was the scribe of the ejahar. He has deposed before

the court that he wrote the ejahar as per the instruction of the informant (PW-2). Ext-2

was the F.I.R. which bears his signature. In his cross-examination, PW-4 has stated that

the informant had informed him that on the day of occurrence the deceased had

scolded the accused and there was a quarrel between them. She had also told him

that the deceased was in drunken condition at the time of the occurrence. However,

he did not see the occurrence.

13. PW-5, Sri Binanda Basumatary was the Officer-in-Charge of Serfanguri Police

Station on 15.06.2016. PW-5 has deposed that on that day, at around 8:30 a.m., a

person disclosing his identity as Badan Soren (accused) surrendered before the Police

Station by confessing that he had murdered his father. He made a GD Entry and

thereafter, visited the place of occurrence and saw the dead body of the victim Page No.# 7/11

lying on the ground with head injuries. PW-5 has stated that the wife of the deceased

was also present at the place of occurrence. He had recorded the statements of the

witnesses including the informant (PW-2), who had handed over the 'lathi' used in the

occurrence. He had seized the 'lathi' vide Ext-4. The I.O. (PW-5) has further stated that

as per version of the witnesses, it was the accused who had committed the murder of

his father with the help of that 'lathi'. PW-5 has exhibited the GD Entry No.268 dated

15.06.2016 as Ext-3 as well as the seizure-list as Ext-4. He has also confirmed that

inquest was made on the dead body and the same was sent for post-mortem

examination. According to PW-5, he had recorded the hstatement of the accused

under Section 161 Cr.P.C wherein he had confessed his guilt but the statement of the

accused was not recorded under Section 164 Cr.P.C.

14. Sri Ram Chandra Rabha was the Officer-in-Charge of Serfanguri Police Station

who had received the Case Diary from the PW-5, collected the post-mortem report

and thereafter, submitted the charge-sheet (Ext-5) against the appellant. Cross-

examination of this witness was declined.

15. Sri A. Saikia was the Judicial Magistrate 1 st Class on duty at Kokrajhar on

16.06.2016 when the statement of PW-2 was recorded under Section 164 Cr.P.C. He

was examined as CW-1. This witness has deposed as regards the manner in which the

statement of PW-2 was recorded under Section 164 Cr.P.C and had also proved the

statement as "Ext-X" by identifying his signature therein. According to CW-1, the

witness had put her thumb impression on "Ext-X" in his presence. During his cross-

examination, CW-1 has stated that when he tried to enquire as to why the accused Page No.# 8/11

had killed his father, the witness had replied that she did not know the reason and

that the accused was in a state of intoxication while committing the murder of his

father.

16. From an analysis of the evidence available on record, it is firmly established

from the testimony of PW-1 as well as the post-mortem report Ext-1 that the victim in

this case had suffered a homicidal death due to the injuries sustained by him on the

head. Therefore, the homicidal death of the victim is well established. The PW-2 i.e.

the mother of the accused and the wife of the deceased is an eye-witness to the

occurrence. She has categorically deposed that it was none other than the

accused/appellant who had struck the victim on the head with a 'lathi'. The

testimony of PW-2 is not only free from any contradiction but the same also finds due

corroboration from her statement recorded under Section 164 Cr.P.C. marked as Ext-

X.

17. We also find from the testimony of PW-5 that soon after the occurrence, the

accused had surrendered before the Police Station and confessed that he had

committed the murder of his father. However, no confessional statement of the

accused was recorded under Section 164 Cr.P.C. In view of the provisions of

Sections 25 and 26 of the Evidence Act the alleged confession made by the accused

before the police cannot be proved against him. Therefore, the conviction of the

accused/appellant has rightly not been based by the learned trial court on his

alleged confession. However, in view of the evidence adduced by PW-2, who

appears to be an injured eye-witness, we are left with no manner of doubt that it was Page No.# 9/11

none other than the appellant, who had grievously injured his father by hitting him on

the head with a 'lathi' leading to his death.

18. Having held as above, the only issue that would now survive for consideration

of this Court is as to whether, this case would come within the sweep of any of the

Exceptions of Section 300 of the IPC. Exception 4 of Section 300 reads as follows :-

"Exception 4.-- Culpabble 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 under advantage or acted in a cruel or unusual manner."

19. From a careful analysis of the testimony of PW-2, we find that the

accused/appellant was unemployed and he used to have frequent quarrels with his

father on such count. Just before the occurrence, the accused was reminded of his

unemployed status. It also appears that he was in an inebriated state. We also find

from the materials available on record that at the time of the occurrence, the

accused/appellant was aged about 20 years. When a young person of the age of

the accused is reminded of his unemployed status time and again, that too in a

humiliating fashion, it is possible that the same would enrage the accused, more so, if

he is in a state of intoxication. This is exactly what appears to have happened in this

case. On the persistent queries made by his parents pointing at his unemployment,

the accused/ appellant appears to have felt insulted. Resultantly, he lost his temper

and in a heat of passion, he had picked up a 'lathi' (stick) which was used to block

the doors of his house and hit his father on his head which had lead to his instant

death. The accused/appellant was so enraged that he did not even spare his mother Page No.# 10/11

and dealt blows on her as well. What is, however, significant to note herein that

immediately after the incident, the accused had gone to the Police Station and

surrendered before the police. He did not act in a cruel or un-usual manner nor did

he make any attempt to take undue advantage of the situation.

20. From the above chain of events, we are of the considered opinion that there

was lack of premeditation on the part of the accused/appellant and he had acted

in a heat of passion having lost his cool on being reminded by his parents about his

state of unemployment, which undoubtedly would be a very sentimental issue for an

unemployed boy of his age. Situated thus, we are of the view that although the

appellant had the knowledge that by hitting his father on the head with a 'lathi' he

could cause death to him, yet, it appears that there was no intention to kill. As such,

we hold that this case would come under the sweep of Section 304 Part-II of the IPC.

21. Consequently, we set aside the conviction and sentence awarded by the

learned trial court to the appellant under Section 302 of the IPC and convict him for

committing offence under Section 304 Part-II of the IPC.

22. In so far as award of jail sentence of the appellant is concerned, we have

taken note of the fact that he was barely 20 years old at the time of the occurrence

and therefore, has a life to be lived ahead of him. Although the irresponsible act of

the appellant which led to the death of his father cannot be condoned, yet, keeping

in mind the overall facts and circumstances of the case as well as the future of the

appellant, we award him the jail sentence of 9 (nine) years rigorous imprisonment.

The period of sentence so awarded by this Court shall stand adjusted against the Page No.# 11/11

period already undergone by the appellant during investigation, trial, if any, as well

after his conviction.

23. In so far as the fine imposed by the learned trial court is concerned, the same

would remain unaltered.

24. The appeal stands partly allowed.

Before parting with the record, we put on record our appreciation for the

valuable services rendered by Mr. Azad Ahmed, learned Amicus Curiae and

recommend that the Registry may make payment of appropriate remuneration to

the learned Amicus Curiae as per the existing norms.

Registry to send back the LCR.

                                JUDGE                              JUDGE

T U Choudhury/Sr.PS




Comparing Assistant