Smt. Lakhimoni Ghatowar vs The State Of Assam
2022 Latest Caselaw 3727 Gua

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GAHC010001112022




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

                                 Case No. : CRL.A(J)/4/2022

            SMT. LAKHIMONI GHATOWAR
            DIBRUGARH, ASSAM.



            VERSUS

            THE STATE OF ASSAM
            REP. BY PP, ASSAM.



Advocate for the Petitioner   : MS. B SARMA, AMICUS CURIAE

Advocate for the Respondent : PP, ASSAM

:: PRESENT ::

                    HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

             For the Appellant        :        Ms. B. Sarma,
                                               Amicus Curiae.
             For the Respondent :              Ms. N. Das,
                                               Addl. Public Prosecutor,
                                               Assam.

             Date of Hearing               :   20.09.2022.
             Date of Judgment             :    22.09.2022.
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                      JUDGMENT AND ORDER (CAV)

Heard Ms. B. Sarma, the learned Amicus Curiae appearing for the appellant. Also heard Ms. N. Das, learned Addl. Public Prosecutor appearing for the State of Assam.

2. This is a jail appeal under Section 374(2) of the Code of Criminal Procedure against the judgment and order dated 24.09.2018 passed by the learned Sessions Judge, Dibrugarh in Sessions Case No.134 of 2015 convicting the appellant under Section 325 of the Indian Penal Code.

3. The prosecution in a nutshell is that on 14.12.2015 at about 4.30 PM, the appellant Smti. Lakhimoni Ghatowar had beaten her 25 years old daughter Joshi Ghatowar with a piece of firewood, as a result, the girl died. On the same day, Sri Ranjit Ghatowar, the son of the appellant had lodged the FIR before police alleging the aforesaid facts.

4. The dead body of the deceased was subjected to post-mortem examination. The report thereof goes like this-

External Appearance: An average built female dead body of swarthy complexion, wearing a green dark under wear and black and green colour sporting. Eyes and mouths are partly open. Rigor motis present all over the body. Post mortem hypothesis present and fixed at the back of the body. Body cold on touch.

Injuries:-

1. Lacerated injury of size 12 x 6 cm x bone deep present over occipital area of the scalp, 8 cm above c 7 vertebrae. Margins of the injuries ae regular and blood clots adherent to the margins of the injury which resist Page No.# 3/4

washing with running water underlying occipital bone fractured of 10 cm in size which present horizontally.

The membrane congested. Sub dural haemorrhage present over both cerebral hemisphere. Other organs healthy.

5. The doctor opined that the death of the deceased was due to comma following head injury, which was ante-mortem and was caused forced impact and homicidal in nature.

6. On conclusion of routine investigation, police filed the charge sheet against the appellant under Section 302 of the Indian Penal Code.

7. On her appearance before the trial court, the charge under Section 302 of the Indian Penal Code was framed against the appellant. The prosecution examined 9 witnesses including the doctor who performed the post-mortem examination and the police investigating officer.

8. Finally, the trial court held that the appellant never intended to kill her daughter though it is proved beyond doubt that it is the appellant who had dealt the blows on the head of her daughter, which caused her death. The trial court further held that intention to cause death is sine qua non and since intention is not proved, the appellant is not guilty under Section 302 of the Indian Penal Code. Therefore, the trial court convicted the appellant under Section 325 of the Indian Penal Code.

9. The trial court sentenced the appellant to undergo rigorous imprisonment of 5 years on the ground that the appellant had killed her own daughter.

10. I have gone through the impugned judgment. I find that the trial Page No.# 4/4

court judgment suffers from certain infirmities. The trial court has held that the appellant had killed her own daughter but she did not have the intention to cause her death. Regarding the presence or absence of intention in a criminal case, the law is well settled.

11. Now, this Court is of the opinion that the impugned judgment is erroneous and cannot be sustained. Therefore, the impugned judgment is set aside and the matter is remanded to the Sessions Judge, Dibrugarh for passing a fresh judgment after hearing oral arguments of both sides.

12. The criminal appeal is disposed of.

Send back the LCR.

JUDGE

Comparing Assistant