T. Nandakumar Singh, J.
1. The appellant-accused of the present appeal is challenging the judgment dated 13.11.2001 passed by the learned Additional Sessions Judge No. 1, Tinsukia in Sessions Case No. 70(T)/01 convicting the appellant-accused under Section 302 IPC and sentencing to undergo rigorous imprisonment for life for committing the murder of his son Bablu Murah.
2. Heard Miss N. Hawelia, learned Amicus Curiae appearing for the appellant-accused and also Mr. B.B. Gogoi, learned Public Prosecutor appearing for the State of Assam.
3. The prosecution story, as unfolded during the trial, in a nutshell are that the PW-8, Dr. Pratap Ch. Saikia, Medical Officer of Rajgarhali General Hospital, Bozaloni Group Limited lodged an ejahar that on 23.3.2001 at about 9.30 P.M. Bablu Murah, aged about 7 years (deceased victim) was assaulted with sharp weapon over the head by his father Dandiya Murah of Bozaloni Tea Estate (appellant-accused) and Bablu died on the way to Rajgarh General Hospital before giving any treatment. On receipt of the said ejahar, the Officer-in-charge of Langkhasi Police Out-Post, entered it in the G.D. being Out-Post GD. Entry No. 495 dated 24.3.2001 and forwarded to O.C., Bordubi Police Station for favour of registering a case under the law. A criminal case being Bordubi P.S. Case No. 22/2001 dated 24.3.2001 under Section 302 IPC was registered and thereafter, the machinery for investigation had been started.
4. After completion of the investigation, the charge sheet had been submitted for the offence under Section 302 IPC. As the offence under Section 302 IPC is exclusively triable by the Sessions Court, the Judicial Magistrate concerned after completing the prescribed procedure for commitment of case under Section 209 Cr.P.C. IPC had committed the case to the learned Sessions Court for trial. After receiving the case on commitment, the learned Sessions Judge registered the Sessions Case No. 70(T)/01. After furnishing the relevant documents to the appellant/accused, the learned Sessions Judge framed the charge under Section 302 IPC, which has been read over to the appellant-accused to a language known to him to which he pleaded not guilty and claimed to be tried.
5. The appellant-accused had faced the trial under Section 302 IPC on the prosecution case that on 23.3.2001, the victim Bablu and his mother Smti. Sukurmoni Murah (PW-5) were enjoying cinema in television in the house of one Sivna. After sometime the victim and her mother came back to her house and found her husband cutting the bamboo of the fencing. The accused assaulted the victim by usinga dao on the head of the victim and victim fell down on the ground. The victim was taken to the hospital by the PW-1. Sri Nabin Khakha and PW-2 Shri Dhutu Gorh. The victim died before giving any medical treatment.
6. The prosecution in order to bring home the charge under Section 302 IPC had examined as many as 10 PWs.
1. Sri Nabin Khakha
2. Sri Dhutu Gorh
3. Sri Gardhi Murah (Brother of the Accused)
4. Sri Dishu Murah
(Father of the accused/grand father of the victim)
5. Smti. Sukurmoni Murah
(Wife of the accused/mother of the victim)
6. Smti. Phulaso Orang
7. Smti. Sunai Murah
(Mother of the accused/grand mother of the victim)
8. Dr. Pratap Ch. Saikia (Informant)
9. Dr. Ritu Raj Chaliha
(Doctor who conducted post mortem)
10. Sri Ranjit Moran
(Investigating Officer)
7. As per the post mortem report submitted by PW-9, Dr. Ritu Raj Chaliha, the nature of the injury caused to the victim is an 'incised wound over the head extending from the left occipital region to the tip of the nose measuring 24 X 3 cm cutting bone, brain and nose'. As per the opinion of the doctor the injury is antemortem being caused by the cutting weapon and is homicidal in nature. It is an admitted case of both the parties that the injury caused to the victim is antemortem and homicidal in nature.
8. In the present case two of the star witnesses i.e. PW-5, Smti. Sukurmoni Murah and PW-6, Smti. Phulaso Orang had been declared hostile. Under Section 9 of the Criminal Law (Amendment Act) 2005 (No. 2 of 2006) Sub-section (2) had been inserted in Section 154 of the Indian Evidence Act under the newly inserted Sub-section (2) of Section 154 of the Evidence Act, the portion of the statement or/evidence of witnesses, who had been declared hostile, can be relied upon. It would be appropriate to quote the Section 9 of the Criminal Law (Amendment) Act, 2005, which reads as follows-
9. Amendment of Section 154 of Act of 1872-In the Indian Evidence Act, 1872, Section 154 shall be numbered as Sub-section (1) thereof and after Sub-section (1) as so numbered, the following Sub-section shall be inserted, namely:
(2) Nothing in this section shall disentitle the person so permitted under Sub-section (1) to rely on any part of the evidence of such witness.
9. The Apex Court in Koli Lakhmanbhai Chanabhai v. State of Gujarat reported in AIR 2000 SC 210 held that:
It is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence, From the ratio laid down by the Apex Court in Koli Lakhmanbhai Chanabhai (supra) and also from Section 9 of the Criminal Law Amendment Act 2005, it is now fairly well settled that the evidence of the hostile witness can be relied upon and can also be used for conviction of the accused if the statement of the hostile witness are corroborated by the statement of the other witnesses.
10. PW-5, Smti. Sukumoni Murah (mother of the victim/wife of the accused) stated that deceased Bablu, her son was killed about three months back. On the day of occurrence Bablu (victim) and herself PW-5 wereenjoying cinema in television in the house of one Shri Sivna and after sometime came back to her house along with the victim. PW-5 further stated that when she entered inside the house, she found her son Bablu (victim) was not inside her house. She came out in search of her son and found him lying in the courtyard with bleeding injury on his head. She raised alarm and her brother PW-1 Shri Nabin Khakha and PW-2, Shri Dhutu Gorh came to took the injured i.e. (victim) to the hospital and he died on the way to the hospital. In her cross-examination, she stated very clearly that all on a sudden hearing her husband creating noises in the courtyard she was trying to open the door, she heard the scream of Bablu and while looking back saw one meat dao stuck on his head and blood was coming out from his head of the victim and the accused-appellant pulled out the dao from the head of Bablu (deceased).
11. PW-1, Shri Nabin Khakha and PW-2, Shri Dhutu Gorh were stated to be present at the house of the accused. As per the statements of PW-1 and PW-2 they rushed to the place of the occurrence i.e. the house of the accused and saw the victim lying with injury on his head. They picked up the injured (victim) from the place of the occurrence and took Bablu to Bozaloni hospital and from Bozaloni they took the victim in Rajgarh hospital for treatment but on the way the victim succumbed to injury. In the cross-examination of PW-2, he stated that he saw the ladies assembling at the house of accused and they stated that the accused caused injury to his son i.e. victim and the ladies who were crying at the place of the occurrence are the PW-5, Smti. Sukurmoni Murah and PW-6 Smti. Phulaso Orang. From the statements of the PW-1 and PW-2, it is clear that they have corroborated the statements of the PW-5, mother of the victim and wife of the accused that on the alarm raised by her that the accused had assaulted the victim by using daon, they rushed to the place of the occurrence and also the statement of PW star witness PW-5, Smti. Sukurmoni Murah (mother of the victim)/wife of the husband) that they had taken the victim to the hospital for treatment. PW-6 Smti. Phulaso Orang who said to have been present, stated that victim Bablu was killed by the accused-appellant. At the time of the occurrence, she was inside her house and she came out the house with PW-6. After coming out she saw Bablu lying injured condition. No doubt PW-6 is an independent witness and she was aged only 15 years at the time of the deposition.
12. PW-4, Shri Dishu Murah and PW-5 Smti Sukurmoni Murah, stated that the appellant-accused was under the influence of liquor at the time of the occurrence. PW-4 also stated in his in chief that the day of occurrence i.e. 23.3.2001 was a pay day.
13. The Additional Sessions Judge after appreciation of the statements of the witnesses and consideration of the exhibits passed the impugned judgment for convicting the accused-appellant for the offence under Section 302 IPC and sentencing to under go for life imprisonment.
14. Miss N. Hawelia, learned Amicus Curiae appearing for the appellant-accused had attacked the impugned judgment and order only on inter-alia ground.
i) There is no evidence or iota of evidence from the side of the prosecution that there was an intention/motive on the part of the accused-appellant to kill the son i.e. victim.
ii) The injury inflicted to the victim by the accused appellant is only one incised wound from the single blow; and also from the peculiar facts and circumstances of the prosecution case it could be gathered that there is no motive and intention on the part of the accused appellant for committing the murder.
iii) Learned Amicus Curiae by relying on the statement of PW-5 strenuously submitted that the accused appellant loved his son and also it would be one of the grounds that the accused appellant who was intoxicated had no intention to kill his son.
15. Further case of the appellant accused in the present appeal that as there is no intention on the part of the accused appellant to kill his son on the materials available on records, the lesser punishment punishable under Section 304 Part-II IPC would be the appropriate punishment.
16. In order to appreciate the submissions of the accused appellant we have meticulously appreciated the statements of PWs by applying our judicial mind.
17. From the perusal of the statements of PWs it is crystal clear that the prosecution had not made any attempt to lead evidence to show that the appellant accused had the intention to kill his son (victim). The learned Amicus Curiae submitted that the appellant accused who was intoxicated inflicted only one injury to the victim by single blow. The learned Amicus Curiae on order to bolster up the case of the accused/appellant had referred to the decision of the Apex Court in State of M.P. v. Kalu Ram and Anr. reported in : (2004)12SCC543 . The prosecution case in that case is that the respondent No. 2 Gopal simply tried, to intervene and save his brother Shri Fakirchand. In the course of such intervention, respondent No.2 Gopal gave single blow to Shri Kantilal deceased and as a result of the blow Kantilal died. The Apex Court after taking into consideration of the prosecution case had come to the finding that respondent No.2 Gopal who happen to give only one blow to the victim in order to intervene and save his brother, cannot have the intention to kill the deceased Kantilal. Coming back to the fact in the instant case as stated above, the appellant accused, who was in the intoxicated condition, alleged to give one single blow to his son couldn't have the A intention to kill his son who loved him according to the statement of the PW-5.
18. The learned Amicus Curiae also relied another decision of the Bunnilal Chaudhury v. State of Bihar reported in (2006) 10 SCC 639 regarding the single blow.
19. In view of the above discussion, we are of the firm opinion that the evidence regarding the intention of the appellant-accused to kill his son is missing. Such being the situation, we are satisfied that the conviction under Section 302 IPC is required to be converted to Section 304 Part-II. It is ordered accordingly.
20. It is stated at the bar by Miss N. Hawelia, learned Amicus Curiae that the appellant surrendered on 23.3.2001 and since then he has been in jail. Submission of learned Amicus Curiae that as the appellant had already in jail for more than six (6) years, his sentence may be reduced for the period already undergone have sufficient force and accordingly agreeing with the submissions of the learned Amicus Curiae, we sentenced the appellant for the period already undergone.
21. Accordingly, the appellant will be set at liberty forthwith if he is otherwise not connected or wanted in any other criminal case.
LCR be sent down forthwith.
Before parting with the judgment we would like to put on record the appreciation to Miss N. Hawelia for her valuable assistance to the court as Amicus Curiae to arrive the aforesaid decision and accordingly, we are of the view that she is entitled to professional fees which is quantified at Rs. 3,000/-.