Suman Shyam, J
1. Heard Mr. I.A. Hazarika, learned Amicus Curiae, appearing for the appellant. I have also heard Mr. K. Konwar, learned Additional Public
Prosecutor, Assam, appearing for the State.
2. The sole appellant in this case was convicted under Section 302 of the Indian Penal Code (IPC) for committing the murder of his wife Piyari
Mirdha and sentenced to undergo Rigorous Imprisonment for life with a further direction to pay fine of Rs. 1000/- with default clause.
3. The prosecution story, in brief, is that the accused Bircha Mirdha had beaten up his wife Piyari Mirdha with a stick, as a result of which she had
died. The accused then ran away.
4. On 03/03/2014, an Ejahar was lodged by the PW-1 Sri Ratna Surin before the Officer-in-charge of Rangapara Police Station reporting the
aforesaid incident. Based on the ejahar, Rangapara police case No. 32/2014 (corresponding to GR case NO. 502/2014) was registered under Section
448/302 IPC. The police had started investigation in the case and on completion of the same, submitted charge sheet against the accused. The
accused had pleaded not guilty and, therefore, the matter was put up for trial. Eventually, the learned Additional Session Judge, Sonitpur, Tezpur has
convicted the accused/appellant under Section 302 of IPC and sentence him to imprisonment for life with fine of Rs. 1000/-.
5. There is no eye witness in this case and the prosecution story is based upon the circumstantial evidence. PW-1 Sri Ratna Surin is the informant in
the case who had deposed before the Court that the incident had taken place about 1 ½ years back. At about 12 noon when he was on duty as the
Chowkidar of Sonajuri Tea Estate Line No. 18, the accused Bircha Mirdha had told him that he had killed his wife Piyari Mirdha by assaulting her
with a “Lathi†and that the dead body of Piyari Mirdha was lying in the house. The PW-1 had also deposed that immediately, he went to the
house of the accused and saw that his wife was lying dead on the bed. Accordingly, he had informed the Manager of the Tea Estate, who in turn had
informed the Police about the incident. The Police came to the place of occurrence and inquest was held on the dead body. PW-1 has also stated that
he had put his thumb impression in the inquest report (Ext. 1) and that Ext. 2 ejahar was lodged by him.
6. PW-2 Smt. Sukumoni Mirdha is the daughter of the accused and the step daughter of the deceased Piyari Mirdha. PW-2 had stated that on the
date of occurrence, she had got information that her mother was killed and she came back home and found that her mother was lying dead inside the
house. PW-2 has further deposed that on being asked, her father i.e. the accused told her that he had killed her mother Piyari Mirdha. Police came to
their house and conducted inquest on the dead body and she had put her thumb impression on the inquest report.
7. Similarly PW-3 Sukra Mirdha, who is the younger brother of the accused, has categorically deposed that the occurrence took place about 1 ½
years back and on the date of occurrence he got information that Piyari Mirdha has been killed. On that day, at about 4-30 p.m. when he went to his
brother’s house, the PW-3 had found that Piyari Mirdha was lying dead on a bed. PW-3 has stated that his brother i.e. the accused had told him
that he had assaulted her with a lathi, resulting to her death. Police came to the place of occurrence and conducted inquest over the dead body. It was
then sent for post mortem examination. During cross examination, the defence side did not make any suggestion to contradict the testimony of the
PW- 1, 2 and 3.
8. PW-4 is the doctor who had conducted the post mortem examination on the dead body. PW-4 has opined that the death was caused due to shock
as a result of head injury. Ext. 3 is the post mortem report which mentions about one injury in the left parietal region of the scalp of following
description:-
“A defused selling on the left parietal region of the scalp. Size about 5 cm x 2 cm. It was also mentioned that clotted blood was found on
dissection.â€
9. PW-5 Sri Lakhi Kanta Bora is the Sujb-Inspector of Police who had conducted the investigation in this case. PW-5 has deposed that dead body of
Piyari Mirdha was found lying on the ground in the house of Bircha Mirdha and that he had held inquest on the dead body in presence of witnesses.
PW-5 has also stated that during inquest he had noticed some black marks on the face of the deceased below the eyes and blood was coming out
from the corner of the right eye. The PW-5 has further stated that he had sent the dead body for post mortem examination and had recorded the
statement of the accused who had confessed of having assaulted his wife Piyari Mirdha with a lathi, resulting to her death.
10. In his statement recorded under Section 313 Cr.P.C, the accused had stated that on the day of occurrence, at about 12 p.m. in the night, he came
out from his house to answer nature’s call when he saw his wife was lying dead on the ground on the side of the road in front of his house. He
then called people from the neighbourhood and brought the dead body to the house and in the morning he had informed the Gaonbura.
11. From the testimony of PWs- 1, 2 and 3 we find that the accused had confessed of having killed his wife with a blow of lathi. It may be noted
herein that the PW-2 is the daughter of the accused whereas PW-3 is his younger brother. Therefore, we see no reason as to why such persons
would falsely implicate the accused in the matter. That apart, during cross examination, no suggestion was made to the said witnesses so as to
contradict their testimony.
12. It is settled law that extra-judicial confession is a weak evidence but law is also firmly settled that extra-judicial confession can be relied upon for
conviction if the same is made voluntarily and without any inducement, threat or coercion. In the case of R. Kupuswamy Vs. State represented by
Inspector of Police, Ambilgai reported in (2013) 3 SCC 322, the Hon’ble Supreme Court has held that extra judicial confession would be capable
of sustaining conviction if the same is found to be voluntary, truthfull and unaffected by any inducement.
13. From a careful scrutiny of the testimony of PWs 1, 2 and 3 we are of the opinion that the testimony of the said witnesses clearly bring on record
the extra-judicial confession made by the accused which appears to be voluntary, out of free will and truthful. As such, we find the confession reliable
and trustworthy and are of the view that conviction of the appellant can be based on such confession.
14. The testimony of PW-4 corroborates the fact that the deceased had died due to one injury in the scull caused by blunt force. The evidence of the
PW-4 as well as Ext. 3 post mortem report corroborates the version given by the PWs-1, 2 and 3. The medical testimony establishes beyond doubt
that death of the deceased was homicidal in nature.
15. All the witnesses in this case including the PW-5 (Investigating Officer) have consistently deposed that the dead body was found inside the house
of the accused and the same carried injury marks. But the appellant has failed to offer any explanations in this case as to how the crime was
committed. Under the circumstances, we are inclined to hold that the learned court below has rightly held that the accused has committed homicidal
death of his deceased wife by beating her with a stick.
16. At this stage, Mr. Hazarika, learned Amicus Curiae has submitted that as it is a case of single blow, hence, the intent to kill is not present in this
case. In support of his aforesaid argument, Mr. Hazarika has referred to a decision of the Supreme Court in the case of Kallu alias Kalyan Atmaram
Patil Vs. State of Maharashtra reported in (1008) 13 SCC 438.
17. As noted above, the post mortem report clearly reflects that there is a single head injury which has resulted into the death of the deceased. In the
case of Kallu (Supra), the Supreme Court took note of the fact that the appellant in that case had inflicted single “stick blow†on the head of the
deceased which proved to be fatal and since there was no evidence to prove that the appellant had inflicted fatal injury on the head of the deceased
with an intention to cause his death or with a knowledge that the injury so inflicted shall cause death of the deceased, it was a case coming without the
fold of Section 304 Part-I and not under Section 302 IPC.
18. Having regard to the facts and circumstances of this case as well as the evidence on record, we are of the considered opinion that the ratio laid
down in the decision of Kallu (Supra) would be squarely applicable in the present case. In this case also the evidence indicates of a single blow by a
stick in the head of the deceased resulting to her death but there is no evidence to show that the accused has dealt the “lathi blow†with an
intention to kill the deceased or having knowledge with the same would lead to her death in the ordinary course. We, accordingly, set aside the
conviction of the accused under Section 302 Part-I of the IPC as well as the sentence of imprisonment for life and instead, convict the appellant under
Section 304 IPC for causing death of Piyari Mirdha and sentence him to suffer rigorous imprisonment for 7 (seven) years.
19. We, however, affirm the sentence of fine as imposed by the learned Trial Court. Appeal stands partly allowed.
Send back the LCR.
