Raj Kumari Jamatia vs State Of Tripura

S. Talapatra, J

[1] Heard Mr. S. Lodh, learned counsel appearing for the appellant as well as Mr. S. Ghosh, learned Addl. PP appearing for the state.

[2] The appellant was charged under Section 302 of the IPC for committing murder of her husband namely, Bikram Jamatia inside the dwelling hut of Khalisha Jamatia under Birganj Police Station on 04.06.2013 at about 2300 hours. After the trial, the appellant has been convicted under Section 302 of the IPC by the judgment dated 30.11.2016 delivered in Case No.ST/28(ST/A) of 2014 by the Sessions Judge, Gomati Judicial District, Udaipur. Pursuant to the said judgment, the appellant has been sentenced to suffer imprisonment for life and to pay a fine of Rs.5000/- with default stipulation.

[3] By means of this appeal, the said judgment and order of conviction dated 30.11.2016 has been challenged. The genesis of the prosecution is rooted in the complaint dated 05.06.2013 submitted to the Officer-in-Charge, Birganj Police Station by one Khalisha Jamatia (PW-9), the younger brother of the deceased revealing that on 04.06.2013 at about 2300 hours at night when the informant was having his dinner with his elder brother namely Bikram Jamatia, the appellant appeared there and asked for 20 rupees for consuming liquor. But the informant expressed his inability as he had no money. At that point of time, his wife, namely Gita Rani Jamatia (PW-10) was also present. At about 2300 hours, Bikram‟s wife, namely Rajkumari Jamatia (the appellant herein) came into the room and asked Bikram to go home. But Bikram denied to go home and asked her to go. According to the complaint, then the appellant pulled Bikram. At that point of time, Bikram said "beat me as much as you can", then his sister in law took the stick used for shutting the door of the room and started giving blows indiscriminately on the head of her husband, Bikram Jamatia.

[4] The informant went up to put resistance but the sister-in-law pushed him aside. She then asked the informant whether he was siding with Bikram. The informant, out of fear, he did not say anything. According to the informant, after the occurrence, the appellant fled away from the place of occurrence. Bikram bled profusely and died there. The informant went to give the information to their parents and at their outcry, many people from their village gathered there. According to him, the appellant informed everybody about the incident.

[5] On the basis of the said ejahar [the complaint], Birganj PS case No.77 of 2013 under Section 302 of the IPC was registered and taken up for investigation. After the investigation, the final police report was submitted sending up the appellant for facing the trial. As the offence was exclusively triable by the court of Sessions, the police papers were committed to the Sessions Judge, South Tripura, Udaipur as he then was. After taking the cognizance, the charge was framed as stated before, to which the appellant pleaded not guilty and claimed to be tried in accordance with law.

[6] In order to substantiate the charge, the prosecution adduced as many as 16 witnesses and 6 documentary evidence including the Post Mortem Examination report. To rebut the prosecution evidence, the witnesses were also examined by the defence. After the prosecution evidence was recorded, the appellant was examined under Section 313(1)(b) of the Cr.PC. for having her response to the incriminating materials as surfaced on the records. Thereafter, having appreciated the evidence, the Sessions Judge, returned the said finding of conviction.

[7] Mr. Lodh, learned counsel appearing for the appellant has submitted that during the trial, the Post Mortem Examination report has not been marked. He has stated that Dr. Tapan Kumar Debnath was examined as PW-16 and he has stated that the Post Mortem Examination report was prepared by one Dr. Nirmalendu Das.

In the examination in chief, PW-16 has stated that injuries may be caused by heavy weapon. However, it appears that PW-16 has also stated that the hand writing of Dr. Nirmalendu Das was known to him, but the prosecution did not take any step to admit the Post Mortem Examination report.

[8] Mr. Lodh, learned counsel has built up his submission based on the defence version that Bikram had illicit relation with the wife of the informant (PW-10) and it was creating problem in the relation of Bikram with his wife. As a result, Khalisa had killed Bikram but made an meticulous attempt to implicate the appellant.

[9] Mr. Lodh, learned counsel has shown us serious incongruity in respect of time of transaction. Having relied on the testimony of Rekha Rani Jamatia (PW-10), Mr. Lodh, learned counsel has contended that PW-10 has clearly stated in the trial that while Rajkumari was beating Bikram, she was having bath. But from the statement of PW-9 (the informant), it would be apparent that from the very beginning his wife, Gita Rani was present in the place of occurrence, but he did not state anything about the role of Gita Rani when the entire occurrence took place at her sight.

[10] That apart, Mr. Lodh, learned counsel has pointed out towards the testimony of PW-10 Rekha Rani Jamatia. In her cross-examination, she has categorically stated that "I did not tell Darogababu that the accused quarreled with the [deceased] and I saw lathi in her hands." Even she has stated that I have not stated to the police officer that on my cry, my husband came and tried to resist Rajkumari.

[11] Thereafter, Mr. Lodh, learned counsel having referred to the testimony of PW-9 has proceeded to contend that Khalisha Jamatia (PW-9) did not even narrate the story that he had exposited in his complaint. On the contrary, he has stated that the occurrence took place about one year and nine months before the day when he had deposed in the trial. His elder brother died in his room and he saw Rajkumari to beat her husband. He had tried to resist Rajkumari from beating him, but failed. Rajkumari stayed in the room and he could not say why she had beaten up Bikram. Mr. Lodh, learned counsel has also pointed out that in the complaint. PW-9 had given a different version. PW-9 has stated that after beating her husband, Rajkumari fled away from the place of occurrence. Mr. Lodh, learned counsel has referred the testimony of PW-4 as well.

[12] According to the prosecution, it is an extra judicial confession in respect of murder by the appellant. Mr. Lodh has shown us that Rajkumari told that she had murdered her husband as on her asking she did not come. In the following sentence, PW-4, Bidhan Chandra Jamatia has stated that "I heard that she had beaten her husband with lathi to death" and as such according to Mr. Lodh this cannot be treated as extra judicial confession at all. PWs 1, 2 and 3 are mere formal witnesses and their testimonies have nothing to do with the substratum of the prosecution case.

[13] PW-5, Falgun Kr. Jamatia has stated that Rajkumari told him that she had murdered her husband and she was ready to go the jail. She was holding a lathi in her hand. According to Mr. Lodh, learned counsel, this witness (PW-5) cannot be believed in view of the statement made by PW-9. PW-9 has nowhere stated that Falgun Kr. Jamatia was present at the place of occurrence. In the complaint, PW-9 has clearly stated that after beating her husband, the appellant fled away from the place of occurrence. But according to PW-5, the extra judicial confession admitting the guilt was made in the place of occurrence by the appellant. Thus, Mr. Lodh, learned counsel has submitted that the statement of PW-5 is visited by substantive exaggeration.

[14] PW-6, Jamunarani Jamatia is a hearsay evidence. Whatever she has stated is based on the information passed to her by PW-9.

[15] PW-7, Abhimanya Jamatia is a Chowdhury (the community chief) of the village at the relevant point of time. But he did not support the prosecution case in the trial and accordingly he was declared hostile.

[16] PW-8, Amar Manik Jamatia has stated in the trial that he did not have any knowledge about the occurrence.

[17] We have already discussed the testimonies of PWs-9 and 10 as shown to us by Mr. Lodh, leaned counsel.

[18] PW-11, Ram Behari Jamatia has also stated that he saw the appellant in the place of occurrence and she had confessed that she had killed her husband, Bikram.

He stood by his statement during the cross-examination.

[19] PW-12, Biswa Chandra Jamatia, a former Chairman of the ADC village, Lalgiri has stated in the trial that Bidhan Jamatia (PW-4) informed him over telephone that Bikram Jamatia had expired. On the next morning, he came to learn from one Jaba Mohan, who has not been examined in the trial, that Rajkumari had murdered Bikram.

[20] PW-13, Subha Ranjan Debbarma, has made a curious statement in the trial which Mr. Lodh, learned counsel has highlighted during his submission. PW-13 has stated that we went to the house of Khalisha and saw the dead body of Bikram and then he stated that "I told Kalisha not to assault but he did not oblige". On the following line, the same witness has stated that "Rajkumari, wife of Bikram assaulted Bikram and caused his death. We tried to resist but failed." This court is unwilling to believe the presence of PW-13 at the relevant point of time. Moreover, his statement indicated to involvement of the informant, if the statement is believed word by word.

[21] PW-14, Dr. Sabyasachi Nath, a forensic scientist from the Tripura State Forensic Science Laboratory (TSFSL) has stated that after the chemical examination, he had determined that the blood stain in the Exbts- A, B, C, D, E and F was of human origin and the blood groups which are referred in the report (Exbt-P/5) were-B, D and E but the blood groups A, C and F could not be traced.

[22] According to us, this report has lost its all significance from the nature that they were no attempt to make any comparison.

That apart, Mr. Lodh, learned counsel has submitted that the lathi which is referred as Exbt-A in the forensic report, and Pachra, which is referred as Exbt-B in the forensic report were not brought in the evidence following the process of law. Even though, the seizure witness has stated that in his presence blood stained soil from the place of occurrence was seized, but he has not stated any more beyond that.

[23] PW-15, Milan Chandra Datta, had conducted the substantive part of the investigation whereas PW-3, Gautam Jamatia completed the investigation. PW-3 had examined the witnesses namely, Anangasakhi Jamatia, Abhinoy Jamatia, Amarmanik Jamatia, Falgun Jamatia, Bipad Sadhan Jamatia, Bischandra Jamatia after taking charge of the investigation. After collecting „the SFSL report‟ he had filed the chargesheet. PW-15 has examined the remaining witnesses and according to him, the appellant made "confessional statement" and on the basis of that confessional statement he discovered the lathi by which the deceased struck on head. But after perusing the said statement, which has been admitted in the evidence as Exbt-6, there cannot be any amount of doubt that the lathi was discovered much before the statement was made and even that can be gathered from the final sentence appearing in the purported confessional statement (Exbt-6) which reads as follows:

Then out of anger, I on getting the stick in the room of Kalisha, I struck on his head of my husband Bikram Jamatia for several times with the stick. He dies. I showed you that very stick. Much blood is stick to it.

[24] PW-15 had examined Gitarani Jamatia, Kisa Jamatia, Gohor Jamatia, Behari Jamatia, Subal Ch. Saha, Uttam Jamatia, Falgunrani Jamatia, Kumari Kumbati Jamatia, Bipadsadhan Jamatia, Goutam Jamatia, Bidhan Ch. Jamatia, Sakhi Jamatia, Dhanya Jamatia, Amar Jamatia on different days. He has made a statement that on receipt of the SFSL report and Post Mortem Examination report, he had handed over the case record to Gautam Jamatia (PW-3) for further investigation. Gautam Jamatia filed the charge sheet. He has confirmed that "Bidhan Jamatia stated to IO of the case that deceased had illicit relation with wife of Khalisa." Even though, Gautam Jamatia was examined in the trial as PW-3 but he (PW-3) did not vouch that statement at all. Thus, this piece of evidence is hit by the hearsay rule under Section 60 of the Evidence Act.

[25] PW-16, Tapan Kr. Debnath, the last prosecution witness, is a medical officer who has stated that one Dr. Nirmalendu Das had conducted the Post Mortem Examination. Perusing the report he has stated that there are two injuries namely, laceration 3 cm x 4 cm and the other injury 4" x 4" depressed fracture in the skull of the deceased, and both the injuries are ante-mortem. But he has not admitted the Post Mortem Examination report, even though he had identified the hand writing of Dr. Nirmalendu Das.

[26] We have already referred the evidence of the prosecution. From the defence, three witnesses were examined.

[27] DW-1, Fagun Rani Jamatia is a cited witness by the investigating officer. According to his statement during the cross-examination, it appears to the court that she had come to depose but she was not examined. The defence examined her as DW-1 and she has stated that when she came to the house of Khalisha Jamatia, she saw Bikram Jamatia was lying on the lap of Rajkumari Jamatia with bleeding injuries. On his asking, Rajkumari (the appellant) told him that Khalisha Jamatia had beaten Bikram Jamatia with a lathi. Thereafter, when she asked Khalisha, Khalisha without replying to her, left the house. Then she had categorically stated as follows:

"For last one year Bikram had illicit relationship with the wife of Kalisa and I warned him not maintain such illicit relation. After 15 minutes or so police arrived there and at that time both Kalisa and his wife Gita Rani Jamatia started saying to the police that Rajkumari had assaulted Bikram. When I arrived in the house of Kalisa, I also found daughter of Bikram whose name I cannot recollect now, present there. Age of daughter of Bikram would be around 15/16 years. No other villager was present at that time in that house."

[28] DW-2, Bipad Sadhan Jamatia appeared in the place of occurrence hearing the hue and cry of his sister, Rajkumari Jamatia (the appellant). He found the dead body of Bikram Jamatia with bleeding injury lying on the lap of Rajkumari Jamatia. Rajkumari (the appellant) told him that Kalisha had beaten Bikram with a lathi. Kalisha was also present at that place with a lathi. Thereafter, Kalisha fled away towards his parents house situated at the same village. Bikram‟s daughter namely, Khumbati Jamatia was also present there. His statement could not be discredited by way of cross-examination carried out by the prosecution.

[29] Bikram‟s daughter Khumbati Jamatia was examined in the trial as DW-3. She has significantly stated that about two and half years ago one day in the night at about 11 p.m. She along with her mother were sleeping in their hut and at that time they heard cry of her father Bikram Jamatia and on hearing the same her mother rushed to the house of Kalisa Jamatia and she had also gone there just behind her mother and found the dead body of her father lying on the ground, in the hut of Kalisa Jamatia and also found injury marks on the body of her father caused by beating by a lathi. She also found bleeding injury on the head of her father. She found the lathi in the hand of Kalisa at that time. Wife of Kalisa was also present there. At that time, no neighbouring people came there. However, after sometimes, Fagun Rani Jamatia arrived in the spot and thereafter other villagers came. Her mother told her that Kalisa and his wife had beaten her father to death.

[30] Mr. Lodh, learned counsel has stated to us that the Sessions Judge while evaluating the evidence has relied the testimonies of PWs 9 and 10 but discarded the testimonies of DWs 1, 2 and 3. He had the obligation to give the due importance to PWs to unravel the truth. By not doing so, he had committed serious irregularity and hence he has urged that the inference as drawn on the basis of such defective analysis of evidence be interfered with and the judgment of conviction be set aside.

[31] Mr. Lodh, learned counsel has also made an alternative submission that if it appears for whatever reason to the court that appellant was the assailant it would be apparent that there was no pre-meditation and on the heat of the passion and following a „fight‟, the said homicide had taken place and the act cannot be treated as culpable homicide amounting to murder. Mr. Lodh, learned counsel has urged this court to look into this aspect.

[32] Mr. Ghosh, learned Addl. PP has in order to repel the submission made by Mr. Lodh, learned counsel submitted that the prosecution by means of PWs- 9 and 10 has adequately established that none other than the appellant had given several blows on the head of the deceased and this act is nothing but murder and not a culpable homicide not amounting to murder. According to Mr. Ghosh, learned Addl. PP, there was no fight. It was a thoughtful act having intention to kill the deceased. The appellant had repeatedly hit on the head of her husband and when he died, she left the place.

[33] Mr. Ghosh, learned Addl. PP has further stated that there is no evidence of physical struggling. However, he has clearly submitted before this court that since the complaint (Exbt-P1) has been admitted in the evidence by the person who had lodged it. This response came on query of this court whether this court can look into the content. However, Mr. Ghosh, leaned Addl. PP has submitted that even there is no evidence that the assailant (the appellant) came prepared with the lathi in hand. His contention is that without any provocation, she picked up the wooden file and hit on the most vulnerable part of the body, the head, several times and that caused the death. From the action itself, meaning the area where the assault was made, the intention can safely be inferred and thus, the culpable homicide has been clearly established on the evidence. It can be termed nothing but a murder. Therefore, no interference is called for in the judgment of conviction and sentence.

[34] In the rejoinder, Mr. Lodh, learned counsel has relied on two decisions of the apex court in Ananta Kamilya vs. State of West Bengal reported reported in (2020) 2 SCC 511 where it has been held as follows:

"From the perusal of the record and even the findings recorded by the learned Trial Court and the High Court, it appears that the incident has taken place on the spur of the moment. It has also come on record that when the accused came to the place of the incident, he did not carry any lathi and/or any other weapon. It was only after some altercation and on the spur of the moment, the accused gave a lathi blow on the head of the deceased and the deceased sustained the injury and there was a fracture on his head. Despite fracture injury on his head, the deceased was conscious. The deceased was first taken to the police station. Thereafter, he was taken to Patashpur Public Health Center and from there to another hospital for better treatment and after few days he died. The apex court has, thereafter, observed that there cannot be any amount of doubt that the deceased died because of the injuries caused by the accused but the incident had taken place on the spur of the moment and after some altercation the accused took the lathi which was lying there and caused the injury on the head of the deceased. There does not appear to be any premeditation or intention to kill the deceased. The death resulted due to injury in quarrel. Therefore, the case would fall under Exception 4 to Section 300 IPC."

[35] The other decision as relied by Mr. Lodh, learned counsel in Nazir Malita & Ors vs. State of West Bengal reported in 2019 (2) Crimes 395 is almost in the similar line, where the apex court had occasion to observe that the accused had altercation, engaged in a fight and struck a blow by a sharp edged weapon attached to a long stick. Thereafter, it has been observed by the apex court that there was no pre-meditation and therefore the conviction under Section 304 II was justified and no interference was called for.

[36] As we have keenly scrutinized the record of evidence and noted during the submission of the learned counsel of the parties no further elaboration in that respect is required. The moot point that has been raised by Mr. Ghosh, learned Addl. PP whether there is any evidence of sudden fight or striking the blow in the heat of passion without pre-meditation is available in the record? According to him, this court should not convert the conviction under Section 304 II of the IPC. The foundational objection as raised by Mr. Ghosh, learned Addl. PP is that if the evidence is visited, it would be apparent that the witnesses examined for the prosecution did make varied statements. He has given a particular example as regards the presence of the appellant in the place of occurrence after she allegedly assaulted her husband.

[37] Further, Mr. Lodh, learned counsel appearing for the appellant has submitted that if DWs are given due weightage, it would be apparent that the appellant did not assault the deceased, but it was informant who had assaulted the deceased. Immediately after the occurrence, the appellant had informed to DWs 1, 2 and 3. DW-1, in particular, has stated that after their reaching at the place of occurrence within 15 minutes or so, the police arrived there. From the scrutiny of the complaint, it appears that during the time PW-9 orally lodged the complaint to the Police Officer namely, Milan Ch. Datta, (PW-15) who had written the statement and took the thumb impression of Kalisa Jamatia (PW-9). But neither the DWs 1, 2 and 3 nor the appellant did report to the police anything, even though they had asserted that they were present at the place of occurrence when the police arrived there. That post occurrence conduct makes their statement improbable and as such we will not rely their statements to implicate Khalisa (PW-9). Their statement, in our considered view, are not reliable.

[38] Now, the question which appears paramount for determining this appeal is whether the culpable homicide falls within the meaning of Section 299 of the IPC? The said culpable act is covered by the fourth exception of Section 300 of the IPC which reads as under:

"Culpable 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 undue advantage or acted in a cruel or unusual manner."

[39] The apex court in Phulia Tudu and another vs. State of Bihar reported in (2009) 3 SCC (Cri) 221 had deliberated upon the construct of the culpable homicide amounting to murder and the culpable homicide not amounting to murder. For this reason, reference has been made to the relevant precedent including Virsa Singh vs. State of Punjab reported in AIR 1958 SC 465. In Virsa Singh (supra) Justice Vivian Bose has reflected his view how to make distinction between the two clauses or whether there is any cast-iron characteristics in the matter or not. It has been observed that no identifiable imperative is available. The provisions under Section 300 of the IPC are the broad guidelines. It has been further observed in Virsa Singh (supra) that sometimes the facts are so intertwined that the second and the third stages are telescoped into each other that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.

[40] Moreover, in Phulia Tudu (supra), the apex court has observed further that keeping the legal principles as illustrated in Para-7 of the report, the factual position is to be examined.

"It cannot be said as a rule of universal application that whenever one blow is given Section 302 IPC is ruled out. It would depend upon the facts of each case. The weapon used, size of the weapon, place where the assault took place, background facts leading to the assault, part of the body where the blow was given are some of the factors to be considered. In that case admittedly one blow was given with a small stick, and the place where the assault took place was dimly lit. Inevitable conclusion is that the case is covered by Section 304 Part I IPC and not Section 302 IPC."

[41] Having regard to the legal position, particularly to the fourth exception of Section 300 of the IPC, we have taken note of the complaint which was filed at the first instance by PW-9. It appears from reading of the testimony of PW-9 that the appellant had no intention even to assault her husband (Bikram Jamatia). She had entered in the room of PW-9 and asked him to go home. When he denied, she pulled his hand to take him home, then Bikram Jamatia told her that he would not go and she could beat him severely, if she wished. This is the reflector available in the evidence and immediately after such statement, it has been stated by PW-9 in the complaint that the appellant took the wooden file which was nearby and struck "several blows" on the head out of heat of passion.

[42] We are inclined to believe that there was no intention to kill her husband, the appellant was not guided by consequence of the hurt. She had struck him in such a manner that there appeared two injuries, according to PW-16. The place of injury, no doubt, is very vulnerable. But on appreciation of the entire circumstances and the way the transaction was carried out, we do completely exclude the intention to kill. As such, we are of the view that the offence is covered by Section 304 Part II of the IPC. Accordingly, we set aside the conviction under section 302 of the IPC. Since the offence under Section 304 Part II of the IPC is cognate and minor offence in relation to Section 304 Part II of the IPC, no formal charge is required to be framed and on the basis of the evidence as recorded the appellant is convicted under Section 304 Part II of the IPC. Pursuant to the conviction under Section 304 Part II of the IPC, the sentence is to be calibrated. The appellant is, on taking relevant factors into consideration, sentenced to suffer imprisonment for 3 ½ years and to pay fine of Rs.5000/- in default to suffer simple imprisonment for 20 days. From the records it appears that the appellant has suffered the said imprisonment. Even if the default imprisonment is added, she has completed her full term. Hence the appellant is entitled to be released forthwith, if not required in any other case.

The appellant be released as this court has verified the records relating to detention.

In the result, the appeal stands partly allowed.

Send down LCRs forthwith.