MARKASH JAJARAversusTHE STATE OF ASSAM & ANR.

                 [2023] 14 S.C.R. 834 : 2023 INSC 1015



                             CASE DETAILS

                          MARKASH JAJARA
                                      v.
                   THE STATE OF ASSAM & ANR.
                    (Criminal Appeal No.3405 of 2023)
                          NOVEMBER 03, 2023

          [SURYA KANT AND DIPANKAR DATTA, JJ.]

                              HEADNOTES

      Issue for consideration: The appellant was held guilty of having
committed the murder of his son-in-law. Whether the offence attributed
to the appellant falls within the ambit of Exception I of Section 300 IPC
which defines “murder”.
     Penal Code, 1860 – s.302 and Exception I of s.300 IPC – The
occurrence took place inside the house of the appellant – The informant
had gone to the house of the appellant and found his brother, who had
been staying with his in-laws, lying dead – Trial Court on consideration
of the evidence held the appellant guilty of committing an offence u/s.
302 IPC and consequently, sentenced him to undergo life imprisonment
– Appeal was dismissed by the High Court – Propriety:
       Held: The appellant’s motive at best was to prevent the deceased from
misbehaving with his daughter after consuming alcohol – The manner in
which the occurrence appears to have taken place inside the house, does
indicate that the appellant lost his self-control on account of persistent
provocation and suddenly thrashed his son-in-law with the bamboo stick –
It is a case where provocation seems to be brewing up since the deceased
shifted to the appellant’s house – It acquired enormous gravity with each
recurrence of humiliating stances of the appellant’s daughter – The fatal
occurrence was seemingly the final culmination of loss of the power of
self-control – The simmering discontent of a frustrated and hapless father
unfortunately led him to strike the deceased with a bamboo stick – The series
of provocative acts attributable to the deceased indeed laid the foundation of
                                     834
   MARKASH JAJARA v. THE STATE OF ASSAM & ANR.                          835


sustained provocation – In the facts and circumstances of the present case,
it appears that the act of the appellant in causing injuries to the deceased
falls within the expression of `culpable homicide’ which does not amount
to `murder’ – In considered opinion of this Court, the ends of justice would
be adequately met by converting the sentence of life imprisonment awarded
to the appellant to rigorous imprisonment of ten years – The sentence as
awarded by the courts below stands modified accordingly. [Paras 17,18,19]
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.3405 of 2023.
     From the Judgment and Order dated 12.03.2019 of the Gauhati High
Court in CRLAJ No.118 of 2016.
     Appearances:
     Gaurav Agrawal, Adv. for the Appellant.
    Nalin Kohli, Sr. AAG, Aastik Dhingra, Anshul Malik, Shuvodeep Roy,
Advs. for the Respondents.
       JUDGMENT / ORDER OF THE SUPREME COURT

                              JUDGMENT

     1. Leave granted.
      2. The Gauhati High Court has dismissed the jail appeal, vide the
impugned judgment dated 12.03.2019, preferred by the appellant against the
judgment and order dated 03.10.2016, passed by the learned Sessions Judge,
Jorhat whereby the appellant was held guilty of having committed the murder
of his son-in-law, namely, late Markush Borja and sentenced to undergo life
imprisonment with a fine of Rs.10,000/- with the stipulated imprisonment
of six months on default of payment of the fine amount in Sessions Case
No.188(J-T)/2015, arising out of Titabar P.S. Case No.65/2015.
      3. The above-stated FIR, under Section 302 IPC, was registered on
the receipt of an ejahar submitted by P.W.8 (Well Borja), on the same day,
836          SUPREME COURT REPORTS                         [2023] 14 S.C.R.


to the effect that his younger brother – Markush Borja had been assaulted
and killed by the appellant with a bamboo stick. The occurrence took place
inside the house of the appellant. The informant had gone to the house of
the appellant and found his brother, who had been staying with his in-laws
for the last 3/4 months, lying dead.
      4. Following the registration of the FIR, the appellant was arrested and
a chargesheet under Section 302 IPC was filed against him. The prosecution
examined nine witnesses including the wife of the appellant – Mononit
Jajara (P.W.5) and his daughter – Sarani Boria (P.W.6). The appellant’s wife
supported the prosecution’s case to the extent that her son-in-law was killed
by the appellant. However, she did not witness the occurrence as she could
not enter the house out of fear. The statement of the appellant’s daughter,
who is the wife of the deceased (P.W.6), has a direct and material bearing
on the fate of this appeal. Hence, we propose to reproduce her statement in
extenso, which reads as under:
            “I know accused Sri Markash Jajara who is present in the dock
      of the court today. The accused is my father.
           I also knew deceased Markush Borha who happened to be my
      husband.
            The incident occurred about one & a half years back. On the date
      of incident I alongwith my husband proceeded towards the house of
      our parents as they were suffering from illness.
            On the date of incident I was present at my work place. When I
      returned back home at about 4 P.M. I came to know that my husband
      had been murdered by my father [accused].
           Out of fear I did not enter into the house. When police arrived at
      our house then only I entered into my house. I noticed the dead body
      of my husband lying in the floor of the kitchen of the house.
           I questioned my father about the incident and he confessed before
      me that he had murdered my husband. Police took the dead body of
      my husband to the hospital for post-mortem examination. My father
      was also taken to the police station.
   MARKASH JAJARA v. THE STATE OF ASSAM & ANR.                          837


           CROSS-EXAMINATION : ON BEHALF OF ACCUSED
          I do not know anything about the incident. I did not witness the
     incident.
          We reside separately from our parents. My parents resided
     alongwith my brother and his wife.
          My husband was an alcoholic person. Prior to the date of incident
     my husband used to quarrel with me as well as with my father after
     consuming alcohol.
           My father murdered my husband as he used to ill-treat me
     after consuming alcohol. My father confessed before me that he had
     murdered my husband with a piece of bamboo.”
     5. The other material witness examined by the prosecution includes
P.W.8 (Well Borja) – the brother of the deceased, who is also admittedly not
an eye witness. Having come to know that his brother had been assaulted
by the appellant, he reached the place of occurrence and saw his younger
brother lying dead on the floor.
     6. It may also be mentioned at this stage that as per the postmortem
report, the deceased suffered the following injuries:
     “1. Laceration of size 7 cm x 1 cm x muscle deep is present over right
     forehead, 3 cm from mid-line and 2.5 cm above eyebrow.
     2. Laceration of size 2 cm x 1 cm x muscle deep is present over left
     mastoid region.
     3. Laceration of size 2 cm x 1 cm x muscle deep is present just below
     the chin and placed obliquely.”
     7. Dr. Ved Prakash Gupta, who conducted the autopsy of the dead
body, entered into the witness box as P.W.4 and while acknowledging the
postmortem report prepared by him, opined that “the injury sustained over
the head by the deceased is fatal to cause instantaneous death.”
     8. The Trial Court on consideration of the above-stated evidence held
the appellant guilty of committing an offence under Section 302 IPC and
consequently, sentenced him to undergo life imprisonment.
838          SUPREME COURT REPORTS                          [2023] 14 S.C.R.


      9. It appears that owing to his poor financial conditions, the appellant’s
appeal was forwarded by the Jail Authorities and with the able assistance
of an amicus curiae, the High Court on re-evaluation of the entire evidence
came to the following conclusion:
      “14. In view of the facts and circumstances, which are well supported
      by the witnesses, we disagree with the submission of the learned
      Amicus Curiae that the conviction of the accused appellant was
      based on suspicion only. We also disagree with the submission of the
      learned counsel that the word of the “confession” has to be recorded
      in the exact words of the accused specifically when it is extra judicial
      confession. At para 8 of the judgment of the Hon’ble Apex Court passed
      in the case of Ajay Sing -Vs- State of Maharashtra reported in (2007)
      12 sec 341, it has been stated that though it is not necessary that the
      witness should speak the exact words, but there cannot be vital and
      material difference. This very sentence shows that it is not necessary
      that the witness should give the exact words spoken by the accused
      who confessed but it would be sufficient if the material and vital parts
      of the confession has been stated by the witness. In this case, under
      the facts and circumstances, the fact that the PW-6 has stated in her
      deposition that her father confessed to her that he had murdered her
      husband when she questioned him is sufficient enough as the same is
      clear, specific, unambiguous and trustworthy.”
     10. As regards the defence plea taken by the appellant that there was
no eye witness to the occurrence and that the alleged confession made by
him before his daughter (P.W.6) could not be relied upon, the High Court
found no merit in those contentions and opined that:
      17. Further, the PW-6 (daughter of the accused) stated that “I
      questioned my father about the incident and he confessed before me
      that he had murdered my husband” and PW-1 has stated that “the
      accused confessed before the villagers that he had committed the
      murder of his son-in-law with the help of bamboo lathi. The statements
      of the two witnesses are simple, clear and unambiguous and they
      clearly conveyed that the accused appellant had confessed that he had
      committed the murder of the victim deceased. It is true that the exact
    MARKASH JAJARA v. THE STATE OF ASSAM & ANR.                          839


     words of the accused appellant were not stated by the two witnesses
     but the material substance of the fact stated by the accused have been
     conveyed. Moreover, the defence did not question the two witnesses
     on the same and not even tried to either controvert or discredit their
     statement. Thus, we find no reason not to believe the statement of the
     witnesses.
           Further, the confessional statement of the accused as stated by
     the two witnesses is well supported by the circumstantial evidence that
     the incident took place in the precinct of the house of the accused-
     appellant himself and, the accused-appellant was alone with the dead
     body of the victim at the time of the incident”
     11. We have heard Mr. Gaurav Agarwal, learned counsel appearing on
behalf of the appellant as well as Mr. Nalin Kohli, learned Senior Additional
Advocate General, State of Assam, and carefully perused the material placed
on record.
     12. The short question that arises for consideration is whether the
offence attributed to the appellant falls within the ambit of Exception I of
Section 300 IPC which defines “murder”. Exception I reads as follows:
           “Exception 1. —When culpable homicide is not murder. —
     Culpable homicide is not murder if the offender, whilst deprived of
     the power of self-control by grave and sudden provocation, causes the
     death of the person who gave the provocation or causes the death of
     any other person by mistake or accident.
           The above exception is subject to the following provisos:—
          First.—That the provocation is not sought or voluntarily
     provoked by the offender as an excuse for killing or doing harm to
     any person.
           Secondly.—That the provocation is not given by anything done
     in obedience to the law, or by a public servant in the lawful exercise
     of the powers of such public servant.
           Thirdly.—That the provocation is not given by anything done in
     the lawful exercise of the right of private defence.
840           SUPREME COURT REPORTS                         [2023] 14 S.C.R.


            Explanation.—Whether the provocation was grave and sudden
      enough to prevent the offence from amounting to murder is a question
      of fact.”
      13. We ought to analyse the aforementioned issue with reference to the
statement of P.W.6 (Sarani Boria), daughter of the appellant, as reproduced
in para 5.
     14. It may be seen that the Trial Court as well as the High Court have
heavily relied upon the statement of the daughter of the appellant - Sarani
Boria (P.W.6) to hold him guilty of committing the murder of his son-in-law
predominantly in view of his purported confession made before his daughter.
      15. In our considered view, the statement of P.W.6 - Sarani Boria needs
to be appreciated in its entirety. In her cross-examination, P.W.6 has candidly
admitted that her husband was an alcoholic and he used to quarrel with her
and also with the appellant after consuming alcohol. She has affirmatively
deposed that the deceased used to ill-treat her after consuming alcohol.
      16. It seems to us from the version of P.W.6 that the deceased was an
alcoholic and he used to misbehave not only with his wife but also with her
family members. This version deserves appreciation in its right perspective.
Such being the conduct of the deceased, the appellant’s only concern was to
protect the life and dignity of his daughter, who was his only child. Reading
the evidence on record, it is perceived that the appellant just wanted to create
some kind of psychological fear and restraint in the deceased’s mind, so
that he could no longer assault or humiliate the appellant’s daughter. The
appellant and the deceased were the only ones present in the house at the
time of occurrence. The daily consumption of liquor by the deceased was an
apparent factor that exhorted the appellant to assault the deceased not with
an intent to commit his murder but only to force the deceased to mend his
ways and mend his drinking problem. The appellant seemingly attacked the
deceased without any intention to commit his murder. It was rather a crude
attempt to forcibly change the deceased’s habits and help the appellant’s
daughter to have peaceful and dignified life.
     17. The appellant’s motive at best was to prevent the deceased from
misbehaving with his daughter after consuming alcohol. The manner in
which the occurrence appears to have taken place inside the house, does
    MARKASH JAJARA v. THE STATE OF ASSAM & ANR.                              841


indicate that the appellant lost his self-control on account of persistent
provocation and suddenly thrashed his son-in-law with the bamboo stick. It is
a case where provocation seems to be brewing up since the deceased shifted
to the appellant’s house. It acquired enormous gravity with each recurrence
of humiliating stances of the appellant’s daughter. The fatal occurrence was
seemingly the final culmination of loss of the power of self-control. The fact
that the deceased was living as a `ghar javai’ with the appellant, sufficiently
indicates that the appellant did not have any pre-meditated intention to
commit the murder of his son-in-law. But for the continuous harassment
of the appellant’s daughter by the deceased who was a habitual drunkard,
the appellant would not have lost his senses suddenly. The simmering
discontent of a frustrated and hapless father unfortunately led him to strike
the deceased with a bamboo stick. The series of provocative acts attributable
to the deceased indeed laid the foundation of sustained provocation.
      18. In the facts and circumstances of the present case, as noticed
above, it appears to us that the act of the appellant in causing injuries to the
deceased falls within the expression of `culpable homicide’ which does not
amount to `murder’. We hold accordingly. The impugned judgments of the
Trial Court as well as the High Court are modified to that extent.
      19. We have considered the submissions of learned counsel for
the parties on the quantum of sentence. In our considered opinion, the
ends of justice would be adequately met by converting the sentence of
life imprisonment awarded to the appellant to rigorous imprisonment of
ten years. The sentence as awarded by the courts below stands modified
accordingly. The appeal is allowed in part. The appellant shall be released
on completion of the requisite and reduced period of sentence, if he is not
required in any other case.
     20. As a sequel thereto, pending interlocutory applications, if any, also
stand disposed of.


Headnotes prepared by:                                      Appeal partly allowed.
Ankit Gyan