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2001 DIGILAW 105 (GAU)

Naru Mazumdar v. State of Assam

2001-04-12

H.K.SEMA, P.G.AGARWAL

body2001
P. G. Agarwal, J. — This criminal appeal is directed against the judgment and order passed by the Sessions Judge, Karimganj in Sessions Case No.22 of 1997 on 10.7.98. 2. This is a case of unfortunate death of a young school teacher Aparna. The deceased Aparna Das came into contact with the accused Naru Mazumdar and they fell in love and a registered deed of marriage was executed in between them. The couple along with the mother and sister of the deceased went for all India trip. The relationship however soured. As regards the solemnisation of social marriage between the parties, the accused was insisting for a social marriage whereas the girl was adamant in not going through the marriage ceremony. On the previous evening of the date of occurrence, the accused along with his friends came and there was hot altercation between the parties and, the accused threatened the deceased. On the date of occurrence at about 7 AM the deceased went to Harizan Colony to attend a private tuition and her dead body was found lying on the road with stab injuries. An FIR being lodged named the accused as assailant, police held usual investigation. The accused was tried for the offence under section 302 IPC. During the trial prosecution examined as many as 10 witnesses including the doctor and the investigating Police Officer. On conclusion of the trial, the learned Sessions Judge convicted the accused-appellant under section 302 IPC and sentenced him with rigorous imprisonment for life and to pay a fine of Rs.5,000 and in default, to further imprisonment for two months. Hence the present appeal. 3. There is oral and medical evidence on record regarding the death of the deceased on the date of the occurrence as a result of the injury sustained by her. PW 9 is Dr. Krishna Prasanna Sinha Who held the post mortem over the dead body and found as follows - "One penetrating injury over the 4th intercostals spare just lateral to left side of the sternum transversely placed between the sternum and left breast size of about 4 cm x 2 cm piercing the intercostal muscles, pleasure, pericardium, right atrium of heart (size over heart about 2.5 cm) and a portion of right lung over lying of the injured heart is also pierced. Blood clots present inside the pleura! cavity on the corresponding side. Blood clots present inside the pleura! cavity on the corresponding side. All the chambers of the heart are empty. All other organs healthy and pale. The injuries described is ante mortem." In the opinion of the doctor, death is due to shock, profuse haemorrhage resulting from the injuries as one of the heart was completely penetrated. In the opinion of the doctor, the injury was sufficient in the ordinary course of nature to cause death. 4. The entire prosecution case rests on the circumstantial evidence as the two eye witnesses turned hostile and they did not support the prosecution during trial. We will advert to the evidence of hostile witnesses at a later stage. The law regarding circumstantial evidence is more or less well settled. The Apex Court laid down the following principles : "(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade vs. State of Maharashtra, (1973) 2 SCC 793 : ( AIR 1973 SC 2622 ) where the following observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divide vague conjectures from sure conclusions" (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved and (5) there must be a chain of evidence complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. These five golden principles, if we may say so constitute the Panchasheel of the proof of a case based on circumstantial evidence." 5. These five golden principles, if we may say so constitute the Panchasheel of the proof of a case based on circumstantial evidence." 5. In the present case the prosecution has relied on the following circumstances: (i) The deceased and the accused were married. (ii) The relationship between the deceased and the accused sourced and they were living separately. (iii) The accused was insisting on performance of social marriage but the deceased was severely opposed to it. (iv) On the previous day of occurrence the accused came to the house of the deceased and met her along with two of his friends. (v) The accused persons threatened to kill the deceased on the previous evening. (vi) The deceased was found lying dead on the road side. (vii) The witnesses, turned hostile did see the accused assaulting the deceased and running away. (viii) Soon after the occurrence, the accused absconded and he was arrested on 17.6.% from Dimapur, Nagaland. 6. The father, mother and sister of the deceased PWs 1, 2 and 3 have all supported the prosecution story as stated above. They have deposed about the registered marriage between the parties. The couple subsequently living together as husband and wife in the house of the deceased but the relationships fell apart and they started living separately. They have also stated that on the previous day of the occurrence the accused persons along with Tapan Saha and Dilip Debnath, PW 7 came to their house had a talk with the deceased and when the deceased did not agree to their demand, she was threatened with death. The accused has admitted the marriage with the deceased and their subsequent sojourn to Calcutta, Bombay, etc with the deceased along with PW 2 and PW 3. The accused has denied that on the previous evening in the incidence he along with PW 6 and 7 came to the house of the deceased and threatened her. PW 6 has deposed that on the previous evening at about 9.30 PM the accused met him and PW 7, and requested them to accompany him to the house of PW 1. He accordingly accompanied him and that they have a long discussion initially with PW 1 and thereafter with the deceased and the accused requested the deceased to marry her according to the social norms but the deceased flatly refused the same. He accordingly accompanied him and that they have a long discussion initially with PW 1 and thereafter with the deceased and the accused requested the deceased to marry her according to the social norms but the deceased flatly refused the same. Thus PW 6 and 7 have not stated about the threatening but the factum that the accused along with the PW 6 and 7 met the deceased at her place and the proposal given by accused was flatly turned down by the deceased, is well established. However, PW 1, 2 and 3 have deposed about the threatening given by the accused on the previous evening and the trial Court relied on the same. Soon after the incident, / as has been deposed by investigating Police Officer the accused absconded and the accused was ultimately arrested at Dimapur on 17.6.96, i.e. after thirteen days of the incident. Abscondance in itself cannot be sufficient circumstances to infer anything adverse against the accused as because sometimes we find that the person do abscond to avoid police harassment. However, in the instant case, we find that the deceased was no other then the wife of the accused and he was present in the town when the incident took place and thereafter went to Nagaland to avoid apprehension. The post crime conduct of the accused is relevant under section 8 of the Evidence Act. 7. Samar Mali, PW 4 and his wife Bina Mali, PW 5, are other two witnesses. The incident had taken place near their residence. They have deposed that on the morning, hearing hue and cry they came out from the house and found the deceased lying dead on the road with stab injuries. One dagger and a ladies Umbrella were found near the dead body and these were seized by the police. Although PW 4 and 5 were not declared hostile by the prosecution, the prosecution was allowed to cross-examination them and their statement made before police was put to them, as required. The said statement were contradicted through the IO. PW 4 claims that he does not know the accused and the deceased but in his earlier statement she has stated that deceased was a tutor and belonged to his Para. Further, on hearing the cries of his wife, PW 5 who saw the occurrence, he got up and saw the accused Naru Mazumdar running away. PW 4 claims that he does not know the accused and the deceased but in his earlier statement she has stated that deceased was a tutor and belonged to his Para. Further, on hearing the cries of his wife, PW 5 who saw the occurrence, he got up and saw the accused Naru Mazumdar running away. Likewise PW 5 had also stated before police that she saw accused Naru Mazumdar and deceased scuffling and thereafter she saw accused stabbing Aparna with a dagger. She thereafter raised alarm and her husband got up. 8. The value of the evidence of hostile witness is that the entire evidence of a hostile witness cannot be held to be rendered unworthy of consideration only because of the fact that he had been declared hostile. In this case, we find that this is a serious case of murder of a young woman. The entire prosecution has been conducted in a casual manner. During the course of investigation, the statement of PWs 1, 2, 3, 4 and 5 were also recorded under section 164 Cr PC. During the trial, PW 1, PW 2 and PW 3 supported the prosecution, still then: statement under section 164 Cr PC was brought on record and exhibited as exhibit 7, 8 and 9. Although PW 4 and PW 5, who were the star witness of the prosecution having seen the assault by the accused and running away of the accused from the place of occurrence seriously departed from their earlier statement and gave different statement what from they stated on oath under section 164 Cr PC. The prosecution did not make any attempt to bring on record the above statement under section 164 Cr PC and confront the witnesses with those statements which are available on record. We do not know whether this is due to incompetence or negligence on the part of the Public Prosecutor, but such action/inaction need to be deprecated. In a Sessions trial, the Court is also required to involve with the trial and see the documents and materials available on record, which are brought up in evidence so that justice is done. Wrongful acquittal does not enhance the name of judiciary. 9. In a Sessions trial, the Court is also required to involve with the trial and see the documents and materials available on record, which are brought up in evidence so that justice is done. Wrongful acquittal does not enhance the name of judiciary. 9. From our foregoing discussion, we find that all the circumstances relied upon by the prosecution has been established by leading cogent .and reliable evidence and they lead to only one hypothesis i.e. the guilt of the accused. His prime and post crime conduct is relevant and the chain is complete as it is in capable of explanation by other hypothesis then the guilt of the accused. In the result, we find no merit in this appeal and the appeal is accordingly dismissed.