It is not necessary for the appellant to adduce any direct or positive evidence to establish his defense: Gauhati High Court

Page No.# 1 5 HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) THE GAUHATI HIGH COURT Case No. : CRL.A(J) 5 2018 RADHARAMAN BHOWMIK S O. LT. ANIL CH. BHOWMIK R O. SHYAMAPRASAD ROAD P.S. KARIMGANJ DIST. KARIMGANJ ASSAM THE STATE OF ASSAM GHC GHY. Advocate for the Petitioner DR. B N GOGOI AMICUS CURIAE Advocate for the Respondent : PP ASSAM HONOURABLE MR. JUSTICE MIR ALFAZ ALI HONOURABLE MR. JUSTICE MANISH CHOUDHURY JUDGMENT & ORDER Heard Dr. B.N. Gogoi learned Amicus Curiae and Mr. M. Phukan learned Additional Public Prosecutor Assam. This jail appeal is directed against the judgment and order dated 25.09.2017 passed Page No.# 2 5 by the learned Sessions Judge Karimganj in Sessions Case no. 20 2015 whereby the learned Sessions Judge convicted the appellant under Section 302 Indian Penal Code and sentenced to rigorous imprisonment for life and fine of Rs. 500 with default stipulation. The prosecution case as reflected in the FIR in brief was that the appellant married the victim and they were also blessed with two children however their conjugal life was not very happy and eventually on the date of occurrence the appellant assaulted the victim being his wife demanding money whereby caused serious injury to which the victim succumbed. Exhibit 1 FIR was lodged by Munna Das on the basis of which police registered Karimganj Police Station Case no. 604 2014 under Sections 498(A) 304(B) IPC and on completion of the investigation submitted charge sheet against the appellant. In course of trial learned Sessions Judge framed charge against the appellant under Section 302 IPC which was abjured by him. The prosecution examined 9witnesses to substantiate the charge framed against the accused. On conclusion of the prosecution evidence the appellant was examined under Section 313 CrPC wherein the appellant had taken a plea that when quarrel ensued between him and his wife on family issues one Joy Dhar came to interfere whereupon he got agitated and dealt a blow aiming at Joy Dhar. In the meantime the victim came between them and the blow given by the appellant landed on the head of the victim which caused the injury. Thus the plea of the appellant in the statement recorded under Section 313 CrPC was that he had no intention to cause any injury to his wifeand the injury to the victim was caused accidentally. Upon appreciation of the evidence and materials brought on record the learned Sessions Judge convicted the appellant and awarded sentence as indicated above. Learned Amicus Curiae while assailing the impugned judgment does not contest the finding of the learned trial Court holding that the injury leading to death of the victim was caused by the present appellant. However the contention of the learned Amicus Curiae is that there was no intention to cause death and as such the ingredients of the offence of murder as defined under Section 300 CrPC was not present. Therefore the learned trial Court ought not to have recorded conviction under Section 302 IPC. At best according to the learned Amicus Curiae it was a case of culpable homicide not amounting to murder punishable under Section 304 Part II IPC. Page No.# 3 5 On our assessment of the evidence we find that the learned Sessions Judge basically relied upon the oral testimony of P.W.4 and P.W.5 who are the children of the deceased besides the medical evidence as well as the statement of the accused appellant recorded under Section 313 CrPC. P.W.4 deposed that in the morning when she woke up she had noticed that her parents were quarrelling. The victim sent her to wash her face. Accordingly she came out and her mother started cleaning the utensils. At that point of time she heard the scream of her mother and immediately rushed to the place of occurrence and found her mother falling on the ground. She had also noticed her father running away from the place of occurrence throwing away the rod which was in his hand. Immediately she informed the P.W.1 her maternal uncle about the occurrence. The evidence of P.W.4 who is none but the daughter of the accused and also the victim remained unshaken. P.W.5 the son of the victim also stated in the same tune that he had noticed his parents quarrelling in the morning and when he went to wash his face he heard the scream of his mother and immediately came into the room and found the victim falling on the ground. He also stated to have seen the appellant hurriedly leaving the room by throwing the rod which was in his hand. P.W.8 the Doctor who conducted the autopsy found a single injury on the head which in the opinion of the Doctor was caused by a blunt object. As already indicated above the stand taken by the appellant in his statement recorded under Section 313 CrPC was that when there was quarrel between the husband and wife one Joy Dhar intervened whereupon he got angry and dealt a blow aiming at Joy Dhar with a rod which accidentally landed on the victim. It is the trite law that statement recorded under Section 313 CrPC though not evidence stricto sensu such statement can be used for or against the accused in view of sub Section of Section 313 CrPC. Therefore the evidence of P.W.4 and P.W.5 coupled with the own admission of the appellant in his statement recorded under Section 313 CrPC clearly established that the injury sustained by the victim Page No.# 4 5 was inflicted by the appellant. The medical evidence further reinforced the evidence of P.W.4 and P.W.5 with regard to the weapon used and that the injury was inflicted by none other than the appellant himself. Though a defence is sought to be raised by the appellant to the effect that the injury to the victim was caused accidentally and he did not have any intention to assault his wife no evidence could be brought on record to substantiate the stand taken by the appellant with regard to presence of Joy Dhar at the place of occurrence. We are aware of the legal proposition that it is not necessary for the appellant to adduce any direct or positive evidence to establish his defence. The same can also be proved by the evidence and material brought on record by the prosecution. But we find nothing in the record to substantiate the plea taken by the accused during examination under Section 313 CrPC with regard to the presence of Joy Dhar. Therefore in our considered view the evidence of P.W.4 and P.W.5 as well as the medical evidence coupled with the statement of the victim recorded under Section 313 CrPC leaves no room for doubt that the appellant inflicted the injury to the victim which caused her death. What is however evident from the records and the evidence of P.W.4 and P.W.5 is that there was a quarrel between the husband and wife. In the statement recorded under Section 313 CrPC also the appellant admitted that there was quarrel between him and the victim. The admission of the accused and the explanation put forward by him regarding the cause of quarrel ensued between them coupled with the testimony of the P.W.4 and P.W.5 demonstrate that the appellant inflicted the injury to his wife with the rod which was available in his house in course of quarrel at the heat of passion. Evidently the appellant did not give the second blow. The nature of weapon used single blow given and that there was quarrel which led to the assault speaks loud and clear that there was no intention on the part of the accused to cause death of the victim being his wife or to cause such injury as to likely to cause her death. Evidently the injury was inflicted in course of quarrel at the heat of passion. Therefore the present case in our considered view squarely comes within the sweep of Exception 4 to Section 300 IPC and as such the offence committed by the accused by inflicting the injury to his wife which caused her death comes only within the definition of culpable homicide not amounting to murder. When there was no intention to cause death or any intention to cause such injury which is likely to cause death the conviction under Section Page No.# 5 5 302 IPC recorded by the learned Sessions Judge cannot be sustained. Accordingly we set aside the conviction of the appellant recorded under Section 302 IPC. Instead we convict him under Section 304 Part II IPC. It reveals from the record that the appellant has been in jail for about 7years and as such we are of the view that the period which the accused had already undergone in custody would commensurate with the gravity of offence. Accordingly we modify the sentence of imprisonment and sentence the appellant to imprisonment for the period which he has already undergone during the investigation and trial. We also reduce the default sentence for non payment of fine to 15 days. Upon due payment of fine or after completing the default sentence the appellant shall be released if not required in any other case. The appeal stands partly allowed. Appreciating the assistance rendered by Dr. B.N. Gogoi learned Amicus Curiae we hereby provide that he will be entitled to Rs. 7 500 as professional fee which shall be paid to him by the Gauhati High Court Legal Services Committee upon production of a copy of this Send down the LCR. Comparing Assistant 

Summary: It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. The onus of proof lies upon the accused person is to prove his case by a preponderance of probability. The judgment was passed by the High Court of Gauhati in the case of Radharaman Bhowmik v. State of Assam [CRL.A(J)/5/2018] by Division Bench consisting of Hon’ble Justice Mir Alfaz Ali &amp; Justice Manish Choudhury. The facts of the case are that the appellant married the victim and they were also blessed with two children, however, their conjugal life was not very happy and eventually on the date of occurrence, the appellant assaulted the victim being his wife demanding money whereby caused serious injury, to which the victim succumbed, FIR was lodged, on the basis of which police registered Case under Sections 498(A)/304(B), IPC and on completion of the investigation, submitted charge sheet against the appellant. Learned Amicus Curiae while assailing the judgment does not contest the finding of the learned trial Court holding that the injury leading to the death of the victim was caused by the present appellant. However, the contention of the learned Amicus Curiae is that there was no intention to cause death and, as such, the ingredients of the offence of murder as defined under Section 300, Cr PC was not present. Therefore, the learned trial Court ought not to have recorded conviction under Section 302, IPC. At best, according to the learned Amicus Curiae, it was a case of culpable homicide not amounting to murder punishable under Section 304 Part II, IPC. Counsel for defence is sought to be raised by the appellant to the effect that, the injury to the victim was caused accidentally and he did not have any intention to assault his wife, no evidence could be brought on record to substantiate the stand taken by the appellant.