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2009 DIGILAW 935 (GAU)

Babul Roy v. State of Assam

2009-12-23

BIPLAB KUMAR SHARMA, J.CHELAMESWAR

body2009
JUDGMENT B.K. Sharma, J. 1. This appeal is directed against the judgment of conviction and sentence dated 12.11.2003, passed by the learned Sessions Judge, Karimganj in Sessions Case No. 24/03, convicting the accused appellant under Section 302 IPC and sentencing him to life imprisonment with a fine of Rs. 500, in default, rigorous imprisonment for one month. 2. The prosecution case against the accused appellant was set to motion with the lodging of the FIR dated 16.6.1999 by one Shri Parimal Chandra Saha (PW4) in Karimganj Police Station. As per the FIR, the accused appellant along with one Smt. Chhaya Rani Roy had been committing excesses on his deceased sister ever since her marriage with the accused appellant. The FIR further revealed that at around 12'O clock of the previous night, the accused persons assaulted his deceased sister to death in their house. On receipt of the information, on telephone, the first informant came to know about the death of his sister. As per the FIR, on receipt of the said information he went to her younger sister's house and taking her along, went to the accused persons' house and found that their sister had been killed by the accused persons. 3. On the basis of the said FIR, the Karimganj Police Station Case No. 323/99 under Section 302/34IPC was registered against both the accused persons. 4. After necessary investigation etc. the police submitted charge sheet only against the accused appellant. The case was committed to the court of Learned Sessions Judge by the Additional Chief Judicial Magistrate, Karimganj, vide his order dated 28.4.2003. 5. There is no eye witness to testify that it was the accused appellant who has committed the murder of his wife. The prosecution case is based on circumstantial evidence, which has found favour of the learned trial court. However, according to the accused appellant, the prosecution has failed to establish the charge of murder against the accused appellant, which is required to be established beyond all reasonable doubt. 6. Mr. J. Patowary, learned amicus curiae, upon a reference to the evidence on record, submitted that on the basis of the said evidence, the accused appellant could not have been convicted by the learned Sessions Judge. 6. Mr. J. Patowary, learned amicus curiae, upon a reference to the evidence on record, submitted that on the basis of the said evidence, the accused appellant could not have been convicted by the learned Sessions Judge. According to him, the chain of events so essential be established in case of seening to establish an offence on the basis of circumstantial evidence are missing in the instant case. He has placed reliance on the 3(three) decisions of the Apex Court Kali Ram v. State of Himachal Pradesh (1973) 2 SCC 808 ; Tanviben Pankaj Kumar Divetia v. State of Gujrat (1997) 7 SCC 156 and Sarbir Singh v. State of Punjab 1993 Supp (3) SCC 41. 7. Countering the above argument, Mr. Z. Kamar, learned P.P., Assam, strenuously argued that the accused appellant having failed to explain the cause of the injuries sustained by the deceased and there being evidence that the accused appellant was with the deceased on the fateful night would go to establish that it was none else but was the accused appellant, who had committed the murder of his wife. He has also placed reliance on the two decisions of the Apex Court Swapan Patra and Ors. v. State of W.B. 1999 (9) SCC 242 and State of Rajasthan v. Parthu (2007) 12 SCC 754 . 8. We have given our anxious, consideration to the submissions made by the learned Counsel for the parties and the evidence on record. The learned trial court has convicted the accused appellant primarily on the basis of the evidence that there was certain injury marks on the body of the deceased and that the accused appellant was staying with the deceased in the same house. According to the learned trial court, the circumstantial chain of evidence is complete to fetter the accused inescapably for the killing of his wife i.e., the deceased. It has been held that despite the motive not being proved, the circumstantial evidence is quite trustworthy so as to return the finding of guilt against the accused appellant. 9. It will be necessary for us to refer to the evidence on record, so as to find out as to whether the aforesaid findings of the trial court is sustainable or not. As per the FIR, there were two accused persons i.e., the accused appellant and one Smt. Chhaya Rani Roy. 9. It will be necessary for us to refer to the evidence on record, so as to find out as to whether the aforesaid findings of the trial court is sustainable or not. As per the FIR, there were two accused persons i.e., the accused appellant and one Smt. Chhaya Rani Roy. However, charge was framed only against the accused appellant. 10. PW1 is the Executive Magistrate, who was stationed at Karimganj on 17.6.1999. He conducted the inquest on the dead body of the deceased and furnished report (Ext. 1). According to this witness, injuries were found on the dead body. 11. PW2 is the brother-in-law of the deceased. He in his deposition stated about the death of the deceased about four years back. He also stated that on getting the information he reached the house of the accused on the next day of the date of incident and found the dead body of the deceased lying on the ground and the accused appellant was present nearby. He noticed the marks of injuries on the dead body, which he has described as blue marks of injury on her chest and stomach coupled with some other injuries on her face, hands and on right side of the forehead. In cross-examination, he stated that the deceased and the accused appellant had 2(two) daughters and 1(one) son. He further stated that he was in visiting terms with the accused and that there were number of persons in his family. 12. PW3 is the Doctor, who conducted the post mortem examination. He in his statement proved the post mortem examination report. As per the said report, the following injuries were found: A dead body of a Hindu female age approx. 35 years, rigor mortis present, eyes and mouth closed, blood stained froth coming out through nostrils and mouth. The following injuries are noted on her person (1) bruise 1/2" x 1/2" over middle left forearm dorsally, on dissection shows blood with lacerated tissue over that region (2) Bruise 1/2" x 1/2" over the right forearm dorsally, on dissection shows blood with lacerated tissue over that area. (3) Bruise 2" x 2" left check dissection shows blood with lacerated muscles and subcutaneous tissue. (4) Haema-toma 2 and 1/2" x 2" over the left temporal region - dissection shows blood with laceration of left temporal muscles with fracture of left temporal bone. (3) Bruise 2" x 2" left check dissection shows blood with lacerated muscles and subcutaneous tissue. (4) Haema-toma 2 and 1/2" x 2" over the left temporal region - dissection shows blood with laceration of left temporal muscles with fracture of left temporal bone. Cranjum and spinal canal Scalp, skull, vertebrae Scalp - A haematoma 2 and 1/2" x 2" the left temporal region dissection shows blood with laceration of left temporalis muscles. Skull - fracture of left temporal bone just beneath the haematoma which is mentioned. 13. The opinion offered in the post mortem report is as follows: In my opinion death is due to asphyxia and shock due to depression of vital centres, i.e., brain following the injuries sustained. Ext. 2 is the post mortem report and Ext. 2(1) is my signature. 14. In his cross-examination, it was stated that the injuries of the temporal region might also be caused due to fall and such injuries could be fatal. 15. PW4 is the first informant and the brother of the deceased, who in his depositions stated about marriage between the accused appellant and the deceased about 6/7 years back. As per his statement, it was the accused-who had informed him about the death of his sister on the next day morning. On receipt of the information, he came to the house of the accused alongwith his sister Bhagawati Saha (PW5). Arriving at the house of the accused appellant, they could see his sister's dead body lying on the ground. The accused was also present, alongwith the other members of the family. According to this witness also, there were marks of injuries on the dead body, particularly, on the neck, chest and back. In his cross-examination, he admitted that he did not state before the police (Investigating Officer) that he had seen injury marks on the body of his sister. 16. PW5 is the younger sister of the deceased. She in his deposition stated about visiting the house of the accused appellant alongwith the PW4, on getting information about her death. She also stated that the dead body was on the floor inside the house and that the accused appellant was present. Other tenants and neighbors were also present. According to her, on being asked, the accused appellant informed her that the deceased died due to fever and Diarrhoea, from which she was suffering for last few days. She also stated that the dead body was on the floor inside the house and that the accused appellant was present. Other tenants and neighbors were also present. According to her, on being asked, the accused appellant informed her that the deceased died due to fever and Diarrhoea, from which she was suffering for last few days. According to this witness, she noticed black marks in the hands, on two sides of her head, neck, abdomen and chest of the dead body. She also noticed blood in her nostrils. When asked as to the cause of injuries, the accused appellant failed to give any satisfactory reply, she stated. 17. In the cross-examination, she reiterated about seeing blood in the nostrils and the failure on the part of the accused appellant to give any satisfactory reply. 18. PW6, 7 and 8 were declared hostile. PW9 is the investigating officer, who in his deposition generally stated about the investigation etc. carried out by him. In the cross-examination, he admitted that he could not examine the complainant because he did not meet him. He further stated that the mother of the accused appellant too lived with him and he interrogated her. To the specific question put to him regarding the testimony of the PW4 and that he had seen injury marks on the dead body, the I.O., in his cross-examination stated that the said witness i.e., PW4 did not specifically tell him that he had seen injury marks in the neck, chest and back of the dead body. He further stated that the PW4 had told him that he had received a telephonic call to the effect that the deceased had died of three days' fever and Diarrhoea. In his cross-examination, he further stated that the PW5 also did not tell him about her visiting the house of the accused appellant and that the body bore injury marks including blood in her nostrils. 19. In the statement made by the accused appellant under Section 313, Cr.PC, ho denied his involvement in the offence under Section 302, IPC and stated that he had told the PW5 that his wife died after suffering from fever and Diarrhoea for three days. To the specific question that his wife died due to the injuries caused to her by the accused appellant, he answered that she died because of Diarrhoea, cough and headache etc. To the specific question that his wife died due to the injuries caused to her by the accused appellant, he answered that she died because of Diarrhoea, cough and headache etc. His further answer was that she was completely bad ridden and died of illness. He denied the allegation that she had sustained injuries due to his assault. 20. It is on the basis of the aforesaid evidence, the learned Sessions Judge has convicted the accused appellant, holding it to be a case of establishing the guilt by circumstantial evidence: As noted above, such conviction of the accused appellant is primarily on the basis of the purported injury marks on her body and the fact that the accused appellant was staying with her in the same house on the fateful night. The question for determination is as to whether only on the basis of the said evidence the accused appellant can be said to be guilty of the offence of committing murder of his wife. 21. Needless to say that the burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. As has been held by the Apex Court in Kali Ram (supra), there are certain cases in which statutory presumption arise regarding the guilt of the accused but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. The onus even in such cases upon the accused is not heavy as is normally upon the prosecution to prove the guilt of the accused. As has been observed in the said case, the golden threads runs through the wave of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. 22. In the instant case, there is no clear evidence of the guilt of the accused appellant and in absence of the same, it is not possible to record a finding of his guilt. In Shivaji Sahabrao Bobade and Anr. 22. In the instant case, there is no clear evidence of the guilt of the accused appellant and in absence of the same, it is not possible to record a finding of his guilt. In Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra (1973) 2 SCC 793 , the Apex Court observed as follows: 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 distinction between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. 23. In Tanviben Pankaj Kumar (supra), it was held that though motive for murder may not be relevant in many cases but if evidences of murder are very clinching and reliable, conviction can be based even if the motive is not established. However, in a case of circumstantial evidence, motive assumes greater importance than in the case where direct evidences for murder are available. In the instant case, no motive has been ascribed as to why the accused appellant would cause the murder of his wife. There is no evidence that there was bitter relationship between the deceased and the accused. On the contrary, the brother-in-law of the deceased i.e., the PW2 in his deposition categorically stated that there was visiting terms between them. Merely because some injuries were noticed on the dead body, same by itself cannot lead to irresistible conclusion that it was the accused appellant, who had committed murder of his wife. 24. There is no evidence that any weapon was used to cause the injuries. At best, the injuries noticed on the dead body could raise suspicion but suspicion, however, may be strong, cannot take the place of proof towards convicting an accused under Section 302, IPC. 25. As noticed above, there were other family members, at-least the co-accused named in the FIR and the mother of the accused appellant in the same house. In fact, there is evidence that there were other family members present in the house. It is not the case of the prosecution that it was only the deceased and the accused appellant lived together in the house and there was none else. 26. In fact, there is evidence that there were other family members present in the house. It is not the case of the prosecution that it was only the deceased and the accused appellant lived together in the house and there was none else. 26. The law is well settled that each and every incriminating circumstances must be clearly established by reliable and clinching evidence and the circumstances so proved, must form chain of event from which, the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against his guilt is possible. As has been held by the Apex Court in Tanviben Pankaj Kumar (supra), in a case depending largely upon circumstantial evidence, there is always a danger for conjecture and suspicion may take the place of legal proof. It is in this context, Mr. Patowary, learned amicus curiae, submitted that the prosecution case is based only on suspicion. As noticed above, suspicion, however, grave, cannot be the substitute for a proof. 27. In Sarbir Singh (supra), the Apex court while observing that men lie but circumstances do not, made the following observations: It is said that men lie but circumstances do not. Under the circumstances prevailing in the society today, it is not true in many cases. Sometimes the circumstances which are sought to be proved against the accused for purpose of establishing the charge are planted by the elements hostile to the accused who find out witnesses to fill up the gaps in the chain of circumstances. In countries having sophisticated modes of investigation, every trace left behind by the culprit can be followed and pursued immediately. Unfortunately it is not available in many parts of this country. That is why courts have insisted (i) the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established; (ii) all the facts so established should be consistent only with the hypothesis of the guilty of the accused and should be such as to exclude every hypothesis but the one sought to be proved; (iii) the circumstances should be of a conclusive nature; and (iv) the chain of evidence should not have any reasonable ground for a conclusion consistent with the innocence of the accused. 28. In Swapan Patra (supra) on which Mr. 28. In Swapan Patra (supra) on which Mr. Z. Kamar, learned P.P. Assam, has placed reliance, the Apex Court held that in a case of circumstantial evidence when the accused offers an explanation, found to be untrue, then the same offers an additional link in the chain of circumstances to complete the chain. That was a case in which, it was clearly on evidence that there was some torture on the deceased prior to the fateful date of occurrence and there was some demand of dowry. It was under such circumstances, the question posed was as to whether it can safely be held that all the appellants were guilty of the charge of murder. It is true that if the explanation furnished is found to be untrue, same may offer an additional link in the chain of circumstances to complete the chain. However, in the instant case, there is no circumstantial evidence, which can be said to have completed the chain of circumstances or at least part of it in which case the untrue explanation furnished could be said to be an additional link. Further the explanation furnished by the accused appellant that his wife was sick also cannot be brushed aside solely on the basis of the injury marks without anything more, purportedly noticed on her body. 29. In Parthu (supra), in the given facts and circumstances, the Apex Court while convicting the respondent took into consideration all the fact that at the time when the incident occurred, the respondent was in his house together with the deceased. This aspect of the matter has already been discussed above. It is not the case of the prosecution that at the time of occurrence, the deceased and the accused only had been living together in the house and there was none else, rather, it is in evidence that other family members were also present in the house. 30. For all the aforesaid reasons, we are of the opinion that the accused appellant is entitled to the benefit of doubt and consequently, the impugned judgment and order dated 12.11.2003 passed by the learned Sessions Judge, Karimganj in Sessions Case No. 24/2003 is set aside and quashed. The accused appellant shall be set at liberty forthwith if not wanted in connection with any other case. 31. Sent down the LCR to the trial court along with the copy of this judgment. 32. The accused appellant shall be set at liberty forthwith if not wanted in connection with any other case. 31. Sent down the LCR to the trial court along with the copy of this judgment. 32. While appreciating the services rendered by Mr. J. Patowary, learned amicus curiae, we hereby order that he will be entitled to a fee of Rs. 5,000. 33. Appeal is allowed. Appeal allowed.