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2008 DIGILAW 425 (GAU)

Dholly Sinha v. State of Assam

2008-06-11

AFTAB H.SAIKIA, P.K.MUSAHARY

body2008
JUDGMENT P.K. Musahary, J. 1. The appellant, a house wife in her mid thirties, having been charged with the offence of killing her husband was tried and convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.500/- only, in default of payment of fine to undergo RI for another 3 (three) months by judgment and order dated 30.07.2003 passed by the learned Additional Sessions Judge, Cachar in Sessions Case No. 12/03. The appellant has been in custody since 12.05.2002 throughout the trial and she has approached this Court in appeal from Jail against the aforesaid conviction and sentence. 2. The facts leading to conviction of appellant are that on 11.05.2002 at 2 AM while Joydev Sinha, husband of the accused was asleep, the accused Dholly Sinha killed him by hacking with a dao and the dead body was lying on the verandah. An FIR was lodged by one Khirodh Sinha, brother of the deceased with the OC, Borkhola Police Station and a case being Borkhola PS Case No. 64.02 was registered on 11.05.2002 under Section 302 IPC. In the FIR an allegation was made that after the occurrence, the accused made an attempt to hit the other family members with dao and she was tied and kept under control. 3. On receipt of the FIR, the IO, PW 7 visited the place of occurrence and found the dead body of the deceased Joydev Sinha lying on the verandah of his house and found the accused in her house who was kept tied. The IO held inquest on the dead body and recorded the statement of the accused. During interrogation, the accused produced a dao which was seized in presence of witnesses. The I.O., PW7 completed the investigation but as he was transferred, the charge sheet was submitted by the OC, PW8. The offence being exclusively triable by the Court of Sessions, it was committed by the learned Judicial Magistrate, Silchar to the Court of Sessions, Cachar by an order dated 05.02.2003. The accused on being explained the charges, pleaded not guilty and claimed to be tried. 4. The prosecution examined as many as 8 witnesses including the Medical Officer and the IO, while the defence examined none. 5. The accused on being explained the charges, pleaded not guilty and claimed to be tried. 4. The prosecution examined as many as 8 witnesses including the Medical Officer and the IO, while the defence examined none. 5. The informant Shri Khirodh Sinha, PW 1, the younger brother of the deceased deposed that his deceased brother resided in a separate house. The occurrence took place in the night at about 2:30 AM inside the house of his deceased brother, while he was sleeping in his own house along with his parents, wife and other family members. They were all sleeping in their own house at the relevant time. His father PW 4 called the family members and got them up from the bed. On being called, all the family members came out from the house and proceeded to the house of his deceased brother where they saw him lying on a bench in the verandah with bleeding injuries. At that time, the deceased could not speak and after few moments he succumbed to his injuries. The family members could saw the door of the deceased open and the accused coming out from the pujaghar, which was situated at the verandah itself. On being asked, the accused confessed before PW 1 and other family members that she had caused the death of her husband. According to PW 1, in the night of occurrence, his deceased brother was residing with his accused wife and 8-year old minor son. After the occurrence the family members tied and detained her in the house. In cross-examination PW 1 stated that his deceased brother maintained cordial and good relationship with the accused. PW 3, Shri Aswini Sinha, another younger brother of the deceased deposed that in the night of occurrence he was sleeping in his house and he got up on hearing dogs barking and hulla. He called his mother and came out from the room and saw his brother Joydev lying on a bench in the verandah of his house. He noticed bleeding injuries on the neck and other parts of the body of the deceased. His elder brother Khirodh Sinha, PW 1 called the other family members to the place of occurrence. He also stated that after few moments his brother Joydev breathed his last. He noticed bleeding injuries on the neck and other parts of the body of the deceased. His elder brother Khirodh Sinha, PW 1 called the other family members to the place of occurrence. He also stated that after few moments his brother Joydev breathed his last. According to PW 3 also on the relevant night, the accused Dholly Sinha was in the house with her deceased husband Joydev. PW 3 stated further that while they were searching for the accused, they saw the accused coming out of the pujaghar and threatened the family members for which they tied and confined her in the house. 6. PW 4, Merachawba Sinha is the father of the deceased. According to him, in the night of occurrence his younger son Aswini Sinha, PW 3, awoke him up and other family members. They came out of the house and saw the deceased Joydev lying on a bench in the verandah with bleeding injury in a speechless state. After few moments Joydev breathed his last. He also stated that in the night of occurrence the deceased was sleeping with his accused wife along with their minor son. He could also noticed that the accused came out of the adjacent pujaghar and after coming out of the pujaghar she declared that she killed her husband Joydev. The accused, as deposed by PW 4, threatened the family members for which he advised his family members to confine her in the house. PW 5, Shri Dhanapati Sinha, is a co-villager who came to the place of occurrence on being informed by PW 4. He informed the villagers of the incident and found that the deceased was lying dead on the ground of the verandah of his house with cut injury on the neck. He saw the accused standing on the courtyard. The mother of the deceased, Smti. Bilashini, was examined as PW 6. She deposed that her younger son Aswini Sinha, PW3, awoke her telling that he heard some hulla outside the house. She came to the house of the deceased along with her husband, son Khirodh and Aswini where they found the deceased lying on a bench in the verandah adjacent to the bed room with cut bleeding injury in a speechless state. She also stated that the deceased was sleeping with the accused and their minor son. She came to the house of the deceased along with her husband, son Khirodh and Aswini where they found the deceased lying on a bench in the verandah adjacent to the bed room with cut bleeding injury in a speechless state. She also stated that the deceased was sleeping with the accused and their minor son. PW 6 also stated that the accused voluntarily confessed before them that she killed her husband Joydev and on the advice of her husband the accused was detained in their house. 7. PW 7, Shri Bhusan Das, I.O. of the case stated that in course of investigation he visited the place of occurrence and found the dead body of the deceased lying in the verandah of his house. He found the accused Dholly Sinha in her house who was kept tied. He held inquest on the dead body and forwarded the same for post-mortem examination to Silchar Medical College and Hospital. He recorded the statement of witnesses and drew up a sketch map of the place of occurrence. He also recorded the statement of the accused who produced a dao and the same was seized in presence of some witnesses who put their signatures on the seizure list, Ext.-5. The seized dao was exhibited as material Ext. 1. He collected the postmortem report and in the meantime, he received transfer order and so handed over the Case Diary to the OC, Borkhola PS. The chargesheet was accordingly submitted by the OC, M.A. Laskar, PW 8. In the cross-examination, the I.O., PW 7 stated that the informant Khirodh Sinha, PW 1, did not tell him that the accused ever confessed killing her husband. He also stated that PW 6 Bilashini Sinha (mother of the deceased) did not state to him that the accused ever declared before her that she killed her husband. The I.O. also clearly stated that there was no mention in the Ext. 5, seizure list, that there was blood stain in the seized dao. Further, he stated that he did not cite the 9 year old son of the deceased as a witness. 8. Dr. Gunajit Das, who held the autopsy on the dead body of the deceased was examined as PW 2. 5, seizure list, that there was blood stain in the seized dao. Further, he stated that he did not cite the 9 year old son of the deceased as a witness. 8. Dr. Gunajit Das, who held the autopsy on the dead body of the deceased was examined as PW 2. He found the following injuries: External wounds:- 1) Stab injury on the right side of the neck and the middle part 6 x 1 cm obliquely placed 6 cm deep cutting the skin, sternomastoid muscle and carotid vessels. 2) Stab injury 5 x 1 cm 2 cm below the injury No. 1 over the side of the neck going 6 cm deep cutting the sternomastoid muscle and carotid vessels. 3) Incised injury over the left side of the neck, long with gaping of 1.5 cm over the upper part 5 cm below left ear obliquely extending from mastoid up to interior border of sternomastoid muscle cutting skin, muscles and carotid vessels with depth of 4 cm. 9. We have heard Mr. A.K. Phukan, Amicus Curiae for the appellant and also Mr. Z. Kamar, learned Public Prosecutor, Assam. 10. Mr. Phukan, learned Amicus Curiae submits that the prosecution failed to prove its case against the appellant beyond reasonable doubt and the learned Sessions Judge convicted the appellant only on the basis of circumstantial evidence not corroborated by any cogent and reliable evidence of an independent witness. The learned Trial Court, according to Mr. Phukan, committed error by relying on the so called extrajudicial confession alleged to have been made by the appellant which find no mention in the FIR itself. According to Mr. Phukan, the circumstance like sleeping of the deceased with his wife and son on the date of occurrence in the night time and finding the dead body of the deceased in the verandah of his house cannot be a strong circumstance for convicting the appellant. The learned Sessions Judge did not consider the other aspect revealed by the appellant in her statement under Section 313 CrPC, particularly her answer to question No. 6, where she stated that her husband in that night went out telling her that he was feeling hot after taking 'ganja' and she slept taking her baby with her. The learned Sessions Judge did not consider the other aspect revealed by the appellant in her statement under Section 313 CrPC, particularly her answer to question No. 6, where she stated that her husband in that night went out telling her that he was feeling hot after taking 'ganja' and she slept taking her baby with her. In the said statement, she stated that having heard dogs barking she got up and after opening the door she found her husband in injured state and she raised alarm and after hearing the alarm her father in law's family members came and rebuked her. She also clearly stated that they tried to beat her and then tied her up. According to Mr. Phukan as soon as the deceased husband came out from the house in that night and slept outside, the chain of circumstance was broken and the probability of being killed by someone other than the appellant arose and in that case the appellant could not be charged with offence of killingher husband. The learned Trial Court, as submitted by Mr. Phukan, wrongly applied the principle of conviction based on circumstantial evidence and as such the conviction as awarded by the learned Trial Court is unsustainable. 11. Supporting the impugned conviction and sentence, Mr. Kamar, learned Public Prosecutor, submits that the conviction has been recorded primarily on the basis of extra judicial confession made by the accused before the family members of the deceased and supported by the circumstances namely, that the deceased was sleeping in the night with the appellant and their minor son and also the crime weapon namely, the dao was recovered by police at the instance of the appellant, which was seized in presence of some independent witnesses. According to Mr. Kamar the prosecution was successful in proving the case against the accused appellant and the impugned conviction and sentence warrants no interference by this Court. 12. What is glaring from the FIR, Ext. 1 is that there is no mention of making any extra judicial confession by the appellant. The FIR was lodged by PW 1, Shri Khirodh Sinha, brother of the deceased, who first came to the place of occurrence and had the occasion to enquire about the incident from the appellant. 12. What is glaring from the FIR, Ext. 1 is that there is no mention of making any extra judicial confession by the appellant. The FIR was lodged by PW 1, Shri Khirodh Sinha, brother of the deceased, who first came to the place of occurrence and had the occasion to enquire about the incident from the appellant. In his deposition PW 1 stated that the appellant confessed before him and other family members gathered after the incident at the place of occurrence that she caused the death of her husband. The FIR was lodged in the next morning of the date of occurrence but the informant did not mention therein about the extra judicial confession made by the appellant, although it was claimed to have so made before him. 13. It is conceivable from the fact of keeping the accused tied and confined her in the house whole night that family members of the deceased put tremendous pressure on her to confess guilt before the police. However, inspite of such pressure, the appellant did not confess her guilt before the I.O. This is evidence from the statement made by the I.O. PW 5 in cross-examination. To the first question put by the defence counsel in cross-examination, he stated thus-- PW Khirodh Sinha did not state to me that accused told him that she murdered her husband the deceased. From this statement it becomes clear that the informant PW 1 did not mention about any confession in the FIR truthfully because no such confession was actually made by the appellant and the story of extra judicial confession was projected in their second thought to bring home the charges of murder against the appellant. It is not a case, or at least it has not been brought on record or in evidence that the informant forgot to disclose the fact of making extra judicial confession by the appellant at the time of lodging the FIR. It is totally improbable and unacceptable that the informant would not mention in the FIR about the alleged confession had the appellant really made the confession before him or before any other members of the family of the deceased and in fact, if there was any such confession as claimed by the informant, it would have invariably been the first thing to be mentioned therein. Reading the FIR together with the evidence of I.O., PW 7, it becomes crystal clear that the appellant never made any confession owning the responsibility of killing her husband. Naturally, suspicion arose on the prosecution story that the appellant ever confessed the guilt. 14. The Apex Court had an occasion to deal with a similar case in State of Haryana v. Jagbir Singh and Anr. as reported in 2003 CriLJ 5054 in which the FIR was lodged by a prosecution witness knowing about the extra judicial confession but no mention was made about the same. In that case, it was observed that in a given circumstance, omission to mention about the particular aspect may not render the prosecution version suspicious but when circumstances are taken in their entirety, the alleged extra judicial confession is not believable. It was held that in order to make an extra judicial confession, a reliable evidence has to be shown that the same was voluntary. In the present case, as already observed, the appellant was tied up and confined by her in laws and under such circumstances, even if any confession was made, it cannot be said to be voluntary. In the present case, the informant himself having not mentioned about the confession in the FIR and the I.O. PW 7 also having deposed in the cross-examination that the appellant made no such confessional statement before him, would simply make the prosecution story unbelievable and unacceptable. Further more, in the case of State of MP v. Nisar as reported in AIR 2007 SC 2316 , where no eye witness to the incident was found and no reference to the extra judicial confession is mentioned in the FIR, the informant's explanation that he may have forgotten to disclose this fact was held to be improbable and unacceptable. In the present case, the informant has made no such statement in his deposition that he forgot to mention in the FIR about the extra judicial confession allegedly made by the appellant. It is found, under such circumstances, that the prosecution's story of extra judicial confession is an after thought being unsupported by any reliable evidence and the conviction based on such evidence is not sustainable under the law. 15. The other basis of conviction namely, the circumstantial evidence, is required to be discussed. It is found, under such circumstances, that the prosecution's story of extra judicial confession is an after thought being unsupported by any reliable evidence and the conviction based on such evidence is not sustainable under the law. 15. The other basis of conviction namely, the circumstantial evidence, is required to be discussed. The prosecution led evidence to the effect that the deceased was sleeping with his wife and minor son in the night of incident and the dead body was recovered from the verandah of their house. On the next day at the instance of the appellant, the I.O., PW 7 recovered a dao, the incriminating weapon, which was seized in presence of some independent witnesses. This according to prosecution is a circumstance from which an inference of guilt can be drawn and come to the conclusion that in all human probability the crime was committed by the appellant and none else. But the learned Trial Court did not consider whether the aforesaid circumstantial evidence is complete in itself and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. The learned Trial Court also did not try to find out whether there is a chain of circumstances and there was any gap left in the chain of evidence. In this case, the appellant in her statement under Section 313 CrPC clearly stated that her deceased husband after taking 'ganja' felt hot and come out of the room. Here, at this particular point, a gap has been created in the chain of circumstance. There is no eyewitness or at least any evidence to the effect that the wife of the deceased also came out with her deceased husband from inside the room which would suggest that the accused wife was responsible for the death of her husband. The chain was broken soon after the deceased husband came out alone from inside the room. After the chain of circumstance was broken, there arose a probability that the deceased was killed by person other than the appellant. The aforesaid circumstances have given opportunity of drawing other inference that it was not the appellant but some other person who killed the deceased. After the chain of circumstance was broken, there arose a probability that the deceased was killed by person other than the appellant. The aforesaid circumstances have given opportunity of drawing other inference that it was not the appellant but some other person who killed the deceased. In our considered view, the prosecution failed to establish a case of circumstantial evidence for convicting the appellant by the touchstone of law relating to circumstantial evidence as laid down by the Apex Court as far back as in 1952 in the classic case of Hanumant Gobind Nargundkar v. State of MP reported in 1953 CriLJ 129 followed and referred in many cases thereafter. 16. The recovery and seizure of incriminating weapon dao allegedly at the instance of appellant would not help the prosecution in proving the charges against her since the independent witnesses who signed the seizure list were not examined by the prosecution to prove the fact that the said dao was recovered at the instance of the accused and seized in presence of the attestors to the seizure list. The very fact of recovery and seizure of the said dao stood doubtful for the same have not been testified or proved by any independent witness. 17. From the evidence of PW 7, I.O., it is an admitted position that the 9-year old son of the deceased was not cited as witness. The prosecution did not examine him as witness although it was clearly established in the evidence that the appellant and deceased were sleeping in the room in the night of the occurrence with the said 9-year old son. In all probabilities, he would have been the eyewitness to the fact that the deceased came out from inside the room just before the incident or he would have been knowing as to what happened in that particular night and how his father was killed. Evidence was led that some hulla was made and dogs were barking at the time of occurrence. Although a minor boy of 9-year old, he would have been in a position to tell what he could hear or what he could see just before the incident. He would also have been able to say what he did or what his mother was doing just before or after the incident. Although a minor boy of 9-year old, he would have been in a position to tell what he could hear or what he could see just before the incident. He would also have been able to say what he did or what his mother was doing just before or after the incident. In our considered view, the 9-year old boy was a material witness in the aforesaid circumstances, for the purpose of leading evidence on the incident, either for or against the prosecution. The prosecution has withheld this material witness from examining without giving explanation. The probable explanation might be that the said material witness was a minor boy and he was not capable of giving any evidence. Such explanation would not be acceptable in view of the fact that in criminal cases the child witness are very often adduced as witnesses and the Courts decide the matter on the basis of evidence of such child witness either convicting or acquitting the accused. There is no evidence on record that the aforesaid minor son of the deceased was incapable of giving evidence. In various cases, the Hon'ble Supreme Court had held that non-examination of a very material witness would give rise to an inference that if examined, he would not have supported the prosecution evidence. It was held so in the case of Khatri Hemraj Amulakh v. State of Gujarat reported in 1972 CriLJ 626. In another case of Sarwan Singh v. State of Punjab reported in 1976 CriLJ 1757, it was held by the Apex Court that before an adverse inference against the prosecution could be drawn it must be proved to the satisfaction of the Court that the witnesses who had been withheld were eye-witness who had actually seen the accused and were therefore, material to prove the case. In the present case, although the aforesaid minor child has not been proved as an eye-witness, it was proved that he was the most probable eye-witness to the said occurrence. For this reason, the with holding of this child witness would go against the prosecution leading to an inference that he would have given evidence against the prosecution and that would have ultimately led to acquittal of the accused appellant. 18. We have already discussed and found that the circumstantial evidence in this case is not strong and reliable enough to record conviction against the appellant. 18. We have already discussed and found that the circumstantial evidence in this case is not strong and reliable enough to record conviction against the appellant. It is the established law in the criminal trial that in a case of circumstantial evidence, motive is one of the circumstances which assumes importance but it cannot be said that in absence thereof, other proved circumstances, although complete in chain, would be of no consequence. It is also an established law that the absence of proof of motive of facts disproves the commission of offence. In the present case, the prosecution while making an attempt to prove charges of murder against the appellant did not lead any evidence of motive behind the crime. In the facts and circumstances of the case, it is not comprehensible why the appellant should murder her own husband without any conceivable motive or reason and that too by inflicting as many as 5 injuries by a dao which was so gruesome in nature. There is no evidence that on any occasion she had a quarrel with her husband or her deceased husband ever subjected her to physical or mental torture. The evidence on record is rather otherwise. According to PW 1, Khirodh Sinha, the informant, his deceased brother maintained cordial and good relationship with the accused. There is no direct evidence from any eye-witness proving the charge of murder against the appellant and it was, under such circumstances, incumbent upon the prosecution to prove the motive of killing the deceased by his wife. 19. The present case rests on circumstantial evidence for want of an eyewitness. The theory of extra judicial confession having been found unreliable and having failed to prove the case in the light of the established rule of circumstantial evidence, the prosecution is required to prove the case by establishing the motive but it has failed to do so for which we can conceive of two possibilities; one of commission of crime by the appellant and the other of innocence entitling the appellant to benefit of doubt. The law has been settled by the Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in 1984 CriLJ 1738, wherein it was held that where on evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. This principle has special relevance where the guilt of the accused is sought to be established by circumstantial evidence. This reported case, in our opinion, squarely covers the instant case inasmuch as the prosecution failed to establish any circumstantial evidence with complete chain of circumstances pointing to the guilt of the accused far less to prove the motive of the crime and on the other hand, the defence has been able to show the other possibility inasmuch as the appellant stated in her statement under Section 313 CrPC that her husband after taking the 'ganja' felt hot and came out of the room before the incident. 20. In that view of the matter, we hold that the prosecution miserably failed to prove the guilt of the accused-appellant beyond all reasonable doubt and accordingly, she is entitled to have the benefit of doubt and reversal of the impugned judgment and order dated 30.07.03 passed by the learned Additional Sessions Judge, Cachar in Sessions Case No. 12/03 to acquittal. The impugned judgment and order dated 30.07.2003 is accordingly set aside and the appellant is acquitted on benefit of doubt. The appellant be set at liberty forthwith. 21. Before parting with the records, we would like to express our appreciation for whatever minimal assistance rendered by Mr. A.K. Phukan, Amicus Curiae in adjudicating this appeal, with of course further hope for better and more effective legal assistance from him in future. The State shall pay him legal fee which is quantified at Rs.5000/- only. Appeal stands allowed. Send down the LCR forthwith. Appeal allowed.