Albish Kheria Vs the State of Assam.

Heard Mr. M.Ahmed, learned counsel for the appellant, Alvis Kheria, who has preferred this appeal challenging the Judgment and Order dated 03.12.2020 passed in connection with Sessions Case No.41(DM)/2018 by the learned Sessions Judge, Darrang, Mangaldai convicting the appellant under Section 304Part-II of the Indian Penal Code (‘IPC’ for short) and sentencing him to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.5000/- with default stipulation.

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It is submitted on behalf of the appellant that as he has already undergone more than five years of the custodial sentence. The merits of this case are not brought to the fore. An earnest prayer has been made to scale down the sentence. It is submitted that the case could have been considered on merits, but due to the period of sentence served by the appellant, a prayer is basically made to reduce the sentence by upholding the conviction under section 304-Part-II of the IPC. However, to reduce the sentence, it has been projected by the appellant that there exist several grounds. The appellant has been behind bars since 03.12.2020 after his conviction and during investigation

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and trial also, the appellant was in detention. It is submitted that there are several grounds to reduce the sentence. The evidence of the witnesses clearly reveals that the appellant was intoxicated and so was the deceased at the time of the incident. The incident was not a pre-meditated case of murder but on the spur of the moment, the incident had occurred.

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The genesis of the case was that on 01.01.2018, the victim Kamini Kheria @ Rima Kheria (hereinafter also referred to as the ‘deceased’ or the ‘victim’) was found dead and an FIR was lodged by the appellant's father, Jahan Kheria. The FIR also reveals that trouble was brewing between the appellant and the deceased.

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It is submitted on behalf of the appellant that cross-examination of the sister-in-law i.e. PW1 Smti Phultuli Bakti clearly depicts that the deceased also used to consume alcohol and on the date of the incident, the deceased had consumed alcohol. The appellant however went for a picnic along with PW1 's husband in the morning, prior to the incident. PW1 's cross-examination also depicts that there was an incident of ‘Marpit’ between the appellant and the deceased, but she did not witness the assault.

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When there is evidence of assault between both the sides, this can be considered to be a mitigating factor to scale down the punishment already imposed on the appellant. The cross-examination of PW2 i.e., the informant Jahan Kheria also depicts that the deceased used to frequently consume alcohol.

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The appellant has drawn the attention of this Court to the evidence of

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PW3 Sanjai Bakti, who is the brother of the deceased. PW3 Sanjai Bakti noticed that his sister, Kamini Kheria was not attending to her morning chores and so his wife entered into the appellant's house and saw the dead body of the deceased lying on the bed. He further deposed that on the previous night, both the appellant and the deceased had a quarrel. His cross-examination also depicts that on the previous date of the incident, he along with the appellant went for a picnic and they consumed alcohol at the picnic spot. He deposed in his crossexamination that his sister used to consume alcohol regularly. The evidence of Samir Kheria as PW-4, brother of deceased is not noteworthy. He was declared a hostile witness. It is further submitted that all the witnesses i.e. PW1, PW2, PW3, and PW4 have stated that the appellant has two children.

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PW5 Jesmina Begum denied any knowledge about the incident.

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The learned counsel for the appellant laid stress in his argument that evidence of PW7, Dipti Bhumij, an independent witness depicts that the appellant made an extra-judicial confession that he assaulted his wife with his sandals but the cross-examination clearly depicts that the sandals seized in connection with this case were not identified by her as the same were not produced as material exhibits. It is further submitted that the I.O. has affirmed the contradictions culled out through the cross-examination of PW7 as per Section 145 of the Indian Evidence Act, 1872 (the Evidence Act for short) qua Section 162 of the CrPC. The I.O. Sri Tankeswar Das who deposed as PW10, has admitted that Dipti Bhumij did not mention in her initial statement that she noticed two injuries on Kamini's head. She (PW7) also did not mention in her initial statement that the appellant did not provide proper food to the deceased and he used to assault her.

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It is further submitted that the witnesses PW7 Dipti Bhumij and PW8Ganga Bakti have stated that they noticed injuries on Kamini's face but no inquest report was exhibited to prove the visible injuries noticed by the witnesses. There are some ameliorating factors to scale down the sentence of 10 years.

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10. The learned counsel for the appellant has also relied on the decision of the Orissa High Court in the case of Thakura Munda vs- State of Orissa in (2014) Sup2 Ori Law Rev 268 wherein in paragraph 10, it has been held as follows:

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“10. In the upshot of above discussions and reasons as aforementioned, I hold that finding of guilt for commission of offence under Section 304-I IPC and the order of conviction recorded by the lower Court there under needs alternation to one under Section 304-II IPC which I hereby do. In the facts and circumstances of the case and all relevant factors being cumulatively viewed sentence of rigorous imprisonment for a period of seven years in my considered view would be just, proper and appropriate as to commensurate with the offence.”

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11. Per contra , learned Additional Public Prosecutor Mr. P.Borthakur has laid stress in his argument that the learned trial court has leniently convicted and sentenced the appellant. The appellant had no remorse. The evidence of PW3 clearly depicts that the appellant was found consuming alcohol with meat next to the body of the deceased. PW3 Sanjai Bakti deposed that the appellant's house is situated near his house. About one year back, when his wife noticed that Kamini was not attending to her morning chores, his wife went inside and

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saw Kamini's body on the bed. Meanwhile, the villagers assembled at the place of occurrence (‘PO’ for short). At that time, the appellant was busy consuming alcohol with meat. He further deposed that in the previous night, the appellant and the deceased had a quarrel. He also stated that the appellant used to demand money from the deceased.

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12. It is pertinent to mention that at this juncture, the learned Counsel for the appellant emphasized through his argument that PW3 has however admitted in his cross- examination that he has not mentioned before the I.O. that he found the appellant consuming alcohol with meat at the time of the incident. This submission of the learned Additional Public Prosecutor can be safely brushed aside. It is also submitted that the submission of the learned Additional Public Prosecutor that the appellant was remorseless and aggressive behaviour is discernible from the evidence of PW8 can be safely brushed aside as the I.O. as PW10 has clearly admitted in his cross-examination that PW8 never stated before him that the appellant slashed Kamini’s fingers and she also never stated before the I.O. that the appellant pushed the deceased into the pond nor did she mention before the I.O. that she had noticed blood or injury on the victim's body. It is submitted by the learned counsel for the appellant that the evidence relating to pushing the victim into the pond or cutting her fingers are afterthought and this statement has been made for the first time in the court by PW8.

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13. I have considered the submissions of both the sides with circumspection.

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14. As the appellant has not disputed the conviction, the core issue narrows down to the length of detention or the sentence imposed upon the appellant after conviction of the appellant under Section 304-Part II of the IPC. Major

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contradictions could be elicited through the cross-examination of the witnesses PW1, PW3, PW7 and PW8. The medical officer, Dr. Binod Chandra Kalita deposed as PW6 that on 02.01.2018, he performed post-mortem examination on the body of Kamini Kheria and found the following;-

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“multiple injury of different sizes seen over the body, Hematoma both eyes blood and blood clot seen in the scalp,

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Cranial cavity contained blood and blood clot,

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Injuries are ante mortem.

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Stomach, intestine, liver, kidney are intact.

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The cause of death was due to haemorrhage and shock as a result of injuries sustained .”

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15. The medical officer has proved the post-mortem report as Exhibit-2 and his signature on the report as Exhibit 2 (1) and he has identified the signature of the Joint Director Ruplal Nunisa as Exhibit 2(2).

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16. The learned counsel for the appellant has drawn the attention of this Court to the cross-examination of the doctor, PW6 where he has admitted that he has not specifically mentioned on which part of the body, the multiple injuries were detected. He has not specifically described the size and depth of the injuries nor did he mention the time of death in the post-mortem report. He also did not forward the food found in the stomach for forensic examination. The learned counsel for the appellant has drawn attention of the crossexamination of the I.O., PW10 who has affirmed that PW1 did not mention in her initial statement that the appellant confessed that he killed his wife. PW4 also did not mention in his initial statement that the appellant had assaulted his wife behind closed doors. Dipti Bhumij also did not mention in her initial

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statement that she noticed two injuries on Kamini's head and she learnt from the deceased that the appellant used to subject the deceased to cruelty and did not provide her with proper food.

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17. PW8 Ganga Bakti also stated before the I.O. that she did not notice if appellant pushed the deceased into the pond and cut her fingers.

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Reverting back to this case, it is held that the incident had occurred when the appellant was alone with the deceased. Witnesses have stated that there was a quarrel and fight between the appellant and deceased. It appears that in the spur of moment, the deceased who was attacked by the appellant succumbed to her injuries.

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19. The learned Addl.Public Prosecutor has submitted that if the witnesses have stated that the deceased was addicted to alcohol, there is no medical evidence that the deceased used to consume alcohol regularly. The postmortem report also does not reveal that alcohol was present in the body of the deceased.

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However, on scrutinizing the post-mortem report, it is clear that the medical officer has negligently prepared the post-mortem report. The size and age of injuries were not described although it is stated that the post-mortem report depicts haemorrhage. The cause of the injuries whether by blunt force impact or by any sharp weapon were not described in the post-mortem report. The food particles were also not sent for forensic examination. The contradictions and the discrepancies and ameliorating circumstances appears to be sufficient to scale down the sentence.

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In view of the foregoing discussions, the conviction under Section 304Part-II of the IPC is upheld and the sentence is scaled down and modified and the appellant is convicted under Section 304-Part-II of the IPC and sentenced to rigorous imprisonment for 7 years with fine of Rs.5,000/- and in default of payment fine, to undergo rigorous imprisonment for two months. The period of detention already undergone by the appellant during investigation and trial is set off with the custodial sentence.

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The criminal appeal is disposed of.

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JUDGE

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Albish Kheria v. the State of Assam.

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Albish Kheria v. the State of Assam.

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