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2008 DIGILAW 476 (GAU)

Roti Mandal v. State of Assam

2008-06-30

AFTAB H.SAIKIA, P.K.MUSAHARY

body2008
JUDGMENT Aftabh H. Saikia, J. 1. Heard Mr. D.C. Mahanta, learned Sr. Counsel assisted by Mrs. S. Barpatragohain, the learned Counsel appearing for the appellant and Mr. Z. Kamar, the learned P.P. Assam, representing State of Assam. 2. This criminal appeal has been directed against the judgment dated 19.11.2004 passed by the learned Sessions Judge, Morigaon in Sessions Case No. 1 of 2004 convicting the appellant under Sections 302/201, IPC and sentencing him to undergo rigorous imprisonment (hereinafter referred to as 'R.I.') for life with a fine of Rs. 1,000/- in default to undergo R.I. for another two months under Section 302, IPC and to undergo R.I. for three years with a fine of Rs. 1,000/- in default two months further R.I. under Section 201, IPC. 3. The prosecution case briefly is that on 5.6.2003 the PW 8, Nabin Chandra Deka, Assistant Sub-Inspector of Police, Mangaldoi Police Station lodged a First Information Report with the Mangaldoi Police Station stating that on 8.3.2003 at 11.30 a.m. one Sri Roti Mandal, S/o Lt. Rabi Mandal of Kahasila under Mayong Police Station in the District of Morigaon filed an Ejahar alleging that on 1.3.2003 at about 4.30 a.m. the complainant's wife Mrs. Puspa Mandal (hereinafter referred to as 'the deceased') had been missing and since than the complainant had been searching his wife at different places. He also informed the matter in writing to the Mayang Police station. On 6.3.2003 in the evening dead body of the complainant's wife (deceased) was found floating at river Brahmaputra and dead body was highly decomposed. On receipt of a written Ejahar on 8.3.2003 an U/D Case No. 6/03 was registered and endorsed in his name to investigate this case. In course of investigation, the said informant PW 8 visited the place of occurrence and examined the available witnesses who were found there and inquest was also held by PW 3, the Executive Magistrate, Mrs. B. Choudhury, Mangaldoi and dead body was sent for post-mortem examination. According to the informant on examination of the father of the deceased along with the family members it was found that they suspected that the deceased was murdered by her husband, Sri Roti Mandal, the appellant. In the post-mortem report the concerned doctor opined that the death of the deceased was esphysia as a result of strangulation. According to the informant on examination of the father of the deceased along with the family members it was found that they suspected that the deceased was murdered by her husband, Sri Roti Mandal, the appellant. In the post-mortem report the concerned doctor opined that the death of the deceased was esphysia as a result of strangulation. It was further alleged in his First Information Report that it was evident that the accused Sri Roti Mandal brutally murdered his wife and thrown the dead body into the river Brahmaputra on 1.3.2003 at about 4.30 p.m. 4. Having completed the investigation initiated after the lodging of the aforesaid First Information Report, the police submitted the charge-sheet against the appellant under Sections 302/201, IPC and the trial Court also framed charges against the appellant under the aforesaid sections. 5. During the course of trial the prosecution examined as many as 9 witnesses out of whom PW 3 Smt. Bijoya Chaudhury, being the Circle Officer at Mangaldoi Circle who had performed the inquest of the dead body of the deceased, PW 4 the doctor Nikhil Ranjan Sarmah who held the autopsy of the deceased. PW 7, Dinesh Das, the Investigating Officer (I.O.) who took up the investigation and submitted the charge-sheet against the appellant, PW 8, Nabin Ch. Deka who lodged the First Information as already noted above and PW 9 Biren Borgohain who was an another I.O. in this case. 6. The learned Sessions Judge on appreciation of the material evidence on record as well as upon hearing the learned Counsel for the parties found the appellant guilty of the offence of killing his wife and convicted and sentenced him as already indicated above. Hence this Criminal Appeal. 7. Admittedly there was no eye-witness to prove the unfortunate incident and the entire conviction was based on circumstantial evidence. 8. We have meticulously scanned the entire evidence of the prosecution witnesses prominently PW 1 Munchi Ram Mandal, the father of the deceased, PW 2, Dayaram Mandal the elder brother of the deceased and the independent witnesses namely, PW 5, Golok Sarkar, PW 6, Akali Sarkar and PW 7, Dinesh Das including the evidence of PW 4 the doctor. 9. 8. We have meticulously scanned the entire evidence of the prosecution witnesses prominently PW 1 Munchi Ram Mandal, the father of the deceased, PW 2, Dayaram Mandal the elder brother of the deceased and the independent witnesses namely, PW 5, Golok Sarkar, PW 6, Akali Sarkar and PW 7, Dinesh Das including the evidence of PW 4 the doctor. 9. In the medical evidence so adduced by the doctor, PW 4 the following injuries were marked : Highly decomposed body of a female human being of 25 years of age, average built, mature maggot seen over the dead body. A piece of cloth is seen tied round the neck in the middle in a spring like knot. After removing piece of cloth a ligature mark is seen in the middle round the neck like white mark. Perch mentisation is seen on cut section of ligature mark. Fracture of Hyoid bone is seen. Doctor opined that the cause of death was Asphysia as a result of strangulation. 10. From the close scanning of the evidence of PW 1 it would go to reveal that while the deceased was living with her husband (appellant) she frequently got physical torture by her husband for which the deceased had to come to his house for treatment and she reported to them her bitter experience with the appellant. PW 2, the brother of the deceased deposed that his sister (deceased) was subjected to assault by the appellant and such assault was noticed by him personally when he was present on a particular day at the house of the appellant where he went to keep his sister after she spent one month stay at their home. While he stayed at the house of the appellant on the next day morning in his presence, his brother-in-law, the appellant, badly assaulted his sister on a negligible matter. On coming home he reported the matter to his father, PW 1. PW 5 who was the neighbour, in his evidence, testified that the occurrence took place in the month of March, 2003 and about 6 years ago of the occurrence, the appellant married the deceased and only after the occurrence once he heard that conjugal life of the deceased was not happy. PW 5 who was the neighbour, in his evidence, testified that the occurrence took place in the month of March, 2003 and about 6 years ago of the occurrence, the appellant married the deceased and only after the occurrence once he heard that conjugal life of the deceased was not happy. He deposed that about 2½ months ago, Puspa with her younger sister went to her paternal house for treatment and about 1½ months Puspa was at her father's house. During that period the husband of the deceased did not visit Puspa and they suspected that the deceased was murdered and threw into the river Brahmaputra. PW 6 also deposed that he saw Puspa Mandal on previous day of Shi varatri and in the morning when he got up he heard that the wife of the appellant was untraced from the house. He stated that before the occurrence, the deceased went to her father's house for about 1½ months and only before 10/15 days of occurrence she returned to the house of the appellant. According to this witness, how the deceased died was unknown to him. 11. Be it mentioned herein that the appellant himself on 8.3.2003 made an application to the D.C. Mangaldoi in respect of the dead body. It would be necessary to quote the said communication so as to notice the conduct of the appellant which is as follows : To The D.C. Mangaldoi Petitioner : Sri Roti Mandal s/o Lt. Rabi Mandal. Vill. - Kasasila Mouza - Mayong Dist.- Morigaon (Assam) Sub : A petition in respect of a dead body. Sir, Humble submission is that I am a permanent resident of the place mentioned above. My wife late Puspa Mandal had been suffering from mental disorder quite a few days. Around 4.30 of Saturday night on last 1.3.2003 my wife had been missing from my house. In this respect a written Ejahar was lodged with Mayong Police Station and the woman had been searched in different places. Around 6 p.m. on 6.3.2003 the body of my wife was found in Brahmaputra river near Silkhunda Narsingh Asram. Immediately the Mayong Police Station under Morigaon District was informed. But the Mayong Police Station asked to inform the Mangaldoi Police Station as the body was found in a place under the jurisdiction of Mangaldoi Police Station. Around 6 p.m. on 6.3.2003 the body of my wife was found in Brahmaputra river near Silkhunda Narsingh Asram. Immediately the Mayong Police Station under Morigaon District was informed. But the Mayong Police Station asked to inform the Mangaldoi Police Station as the body was found in a place under the jurisdiction of Mangaldoi Police Station. I feel that the body of Puspa Mandal be cremated formally as early as possible since the body is in a state of decomposition. I do not suspect that she was being murdered by anybody as she had been suffering from mental disorder. I, therefore, pray that your goodself would be kind enough to take necessary steps to cremate the body accordingly to our custom as early as possible. Finis 8.3.2003 Sd/- Sri Roti Mandal 12. It is seen in the above petition that the appellant informed the authority concerned that his wife had been suffering from mental disorder quite a few days and she was missing from Saturday night of 1.3.2003 around 4.30 and he made a request to take necessary steps to cremate the dead body of his wife as early as possible since the dead body was in a state of decomposition and he did not suspect that his wife was being murdered by anybody as she had been suffering from mental disorder. Interestingly nothing has been placed on record to show that the deceased was suffering from any metal disorder in defence. 13. Having carefully gone through the entire materials available on record as indicated above it is found that PW 6, Akali Sarkar that the appellant married the deceased and his house was intervened by two other houses from the house of Roti Mandal, the appellant. According to him, the occurrence took place last year on the day of Sivaratri. He saw the deceased on previous day of Sivaratri and on the morning of the day of Sivaratri only he heard that the wife of the appellant was untraced from the house. After six days the dead body was found floating over the water of river Brahmaputra. He saw the deceased on previous day of Sivaratri and on the morning of the day of Sivaratri only he heard that the wife of the appellant was untraced from the house. After six days the dead body was found floating over the water of river Brahmaputra. This piece of circumstance as provided by PW 6 would undoubtedly suggest that both the appellant and the deceased being the husband and the wife, stayed together in the night in the house of the appellant on the day of occurrence and it could be the appellant only who was involved in committing the crime in killing the deceased. The evidence of PWs 1, 2 and 5 would also indicate unerringly that though the deceased was in her father's house for more than 1½ month for her treatment, the appellant did not visit the house of PW 1 to know about the health condition of his wife which would go to assert that both the husband and wife was not in a good term in leading their conjugal life. More significantly, the communication dated 8.3.2003 above quoted would also speak itself volume about the conduct of the husband who projected his wife as a mentally sick person and requested the authority to cremate the dead body as he did not suspect that his wife was murdered by anybody. This circumstance was surprisingly unusual and enough to entertain suspicion. 14. How a prudent man can request the authority voluntarily to cremate his wife who was missing for about 6 days from his residence and found floating dead in the Brahmaputra river in suspicious circumstances. Another important aspect to be noticed herein that there is nothing on record to show that the appellant informed the police on the next following day of missing of his wife as claimed by the appellant. 15. In the backdrop of above discussed factual situation emerged from the testimony of the witnesses, Mr. Mahanta the learned Senior Counsel has challenged the impugned conviction and sentence basically on the sole ground that the circumstances which had been made the basis for conviction were not put to the accused and hence it may be held that the provisions of Section 313, Cr.PC were not complied with in its true sense. To bolster up his submission, he has relied upon the following two decisions of the Apex Court. To bolster up his submission, he has relied upon the following two decisions of the Apex Court. (a) Sharad Birdhichand Sarda v. State of Maharashtra reported in 1984 CriLJ 1738. (b) Vikramjit Singh @ Vicky v. State of Punjab reported in (2006) 12 SCC 306 . 16. It is submitted on behalf of the appellant that any circumstance in respect of which the appellant was not examined under Section 313, Cr.PC cannot be used against him. Thus all the circumstances in the instant case upon which prosecution tried to maintain conviction of the appellant, were not put to him in his examination under Section 313, Cr.PC and hence the impugned conviction may be said to be in contrary to Section 313, Cr.PC and the same is liable to be set aside. 17. In Sharad Birdhichand Sarda v. State of Maharashtra reported in 1984 CriLJ 1738 the Supreme Court held as under : 142. Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz., circumstances Nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As these circumstances were not put to the appellant in his statement under Section 313 of the Criminal Procedure Code they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 wherein in the case of Hate Singh Bhagat Singh v. State of Madhya Bharat AIR 1953 SC 468 , this Court held that any circumstance in respect of which an accused was not examined under Section 342 of the Criminal Procedure Code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 of Section 313 of the Criminal Procedure Code, the same cannot be used against him. In Shamu Balu Chaugule v. State of Maharashtra 1976 CriLJ 492, this Court held thus : The fact that the appellant was said to be absconding, not having been put to him under Section 342, Criminal Procedure Code, could not be used against him. 144. In Shamu Balu Chaugule v. State of Maharashtra 1976 CriLJ 492, this Court held thus : The fact that the appellant was said to be absconding, not having been put to him under Section 342, Criminal Procedure Code, could not be used against him. 144. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code have to be completely excluded from consideration. 18. Reiterating the above accepted principles of law the Supreme Court in Vikramjit Singh @ Vicky v. State of Punjab, reported in (2006) 12 SCC 306 in paragraph 23 ruled as under : It is now a well-settled principle of law that the circumstances which according to the prosecution lead to proof of the guilt against the accused must be put to him in his examination under Section 313 of the Code of Criminal Procedure. It was not done. 19. In consideration of the above submissions so made on behalf of the appellant and' also having regard to the above cited judicial authorities, we have scrupulously gone through all those questions put to the appellant under Section 313, Cr.PC and having analysed the same carefully, we are of the considered view that all the circumstances which were the basis of the impugned conviction, were put to the appellant and as such we do not think that the provisions of Section 313, Cr.PC as argued were not complied with. 20. The relevant provisions of Section 313, Cr. PC are quoted as under : 313. Power to examine the accused-- (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court-- (a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case : Provided that in a summon-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under Clause (b). (2) No oath shall be administered to the accused when he is examined under Sub-section (1) (3) The accused shall not render himself liable to punishment by refusing to answer such question, or by giving false answers to them. (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. 21. The basic purpose of examination of an accused under Section 313, Cr.PC is to enable him to explain any circumstances appearing in evidence against him. 22. Having referred to the settled law that all the questions relating to the circumstances have to be put to the appellant in the course of his examination under Section 313, Cr.PC and also taking into account the questions so put to the appellant in the instant case, we do find that the examination of the appellant under this section was properly done in its true and fair spirit and the possibility of the Sessions Court doing injustice to the appellant can easily be ruled out. We have, therefore no, hesitation to hold that all the circumstances were put to the appellant in its examination under Section 313, Cr.PC and in such premises, the submission of Mr. Mahanta, the learned Senior Counsel in this context cannot be accepted. 23. In view of what has been stated, discussed and observed above, we are of the view that the prosecution has successfully established its case against the appellant as regards involvement in the killing of his wife, the deceased. Consequently, we do agree in toto with the views expressed and findings recorded by the learned Sessions Judge in handing down the impugned conviction and sentence to the appellant. The impugned conviction and sentence deserves no interference. 24. In the result the appeal fails and stands dismissed. 25. Sent down the LCR. Appeal dismissed.