Research › Search › Judgment

Gauhati High Court · body

2011 DIGILAW 822 (GAU)

Benudhar Rajkhowa v. State of Assam

2011-09-29

MADAN B.LOKUR, P.K.MUSAHARY

body2011
JUDGMENT P.K. Musahary, J. 1. This appeal is directed against the judgment dated 18.7.2005 delivered by the learned Additional Sessions Judge (Ad hoc) FTC, Biswanath Chariali in Sessions Case No. 31 of 2004 convicting the appellant under section 302, IPC for murdering his wife and sentencing him to go rigorous imprisonment for life and fine of Rs. 500 and in default of payment of fine, further rigorous imprisonment for 15 days. 2. The synopsis of the prosecution case is that on 5.9.2011 one Shri Raju Phukan lodged an FIR with the Gohpur Police Station alleging that on that day Shri Kahagen Baruah informed him that the wife of Shri Benudhar Rajkhowa was found dead inside his house and he along with one Shri Puneswar Hazarika and Mohendra Hazarika went to the house of Benudhar and found his wife lying dead. He suspected that Benudhar has murdered his wife. FIR so received was registered as Gohpur PS. Case No. No. 267/2001 under section 302, IPC which was subsequently registered as GR Case No. 566/2001. The Officer In-charge of the said PS. himself took up the investigation and visited the place of occurrence, held inquest, seized some articles and prepared a seizure list in presence of the witnesses, drew sketch map of the place of occurrence and recorded the statement of witnesses. The dead body was sent for post mortem examination and the report was collected. On completion of investigation, the I.O. submitted the charge sheet against the appellant under section 302, IPC. The jurisdictional Sub-Divisional Magistrate committed the case to the Court of Sessions, Sonitpur along with all relevant records. On receipt of the records on committal, the learned Sessions Judge, Sonitpur made over the case to the learned Additional Sessions Judge (Ad hoc) FTC, Biswanath Chariali for trial and disposal. 3. On the basis of the materials found on record, the learned trial court framed charge under section 302, IPC, which the appellant on being read over and explained, denied and pleaded not guilty claiming trial. 4. The prosecution, to bring home aforesaid charge against the appellant, examined as many as 6 witnesses including the Medical Officer and the Investigating Officer and 8 court witnesses. The appellant adduced no evidence in his defence except the statement recorded under section 313, Cr.PC. All the incriminating evidence on record against him were put to him which he replied in the negative. The appellant adduced no evidence in his defence except the statement recorded under section 313, Cr.PC. All the incriminating evidence on record against him were put to him which he replied in the negative. He declined to adduce evidence. Thereafter, the learned trial court, on consideration of materials and evidence on record and upon hearing the learned counsel for the parties, passed the impugned judgment convicting and sentencing him under section 302, IPC. 5. We have heard Mr. S.K. Medhi, learned amicus curiae and Mr. D. Das, learned Addl. P.P., Assam. 6. There is no eye witness to the alleged incident of murder and the case is to be decided based on circumstantial evidence. As per the FIR, PW1 Shri Raju Phukan, VDP Secretary of the village was informed about the incident by a co-villager. PW1 deposed that he being the VDP Secretary, on being so informed proceeded to the house of Benudhar and on peeping through the door of the kitchen he saw the dead body of Renu Rajkhowa wife of the Benudhar, lying on the floor. Some people in the meantime have gathered and he, accompanied by Binoy Rajkhowa went to the police station and filed the FIR written by Binoy Rajkhowa. The police came to the place of occurrence along with him and conducted inquest. He saw a piece of gamocha fastened around the neck of the deceased. He saw a piece of rope around the neck of the deceased and another torn piece of rope hanging from the wooden tie beam of the roof of the kitchen. He signed the inquest report/Ext-2, prepared by the I.O. He identified his signature which was marked as Ext-2(1). The I.O. seized the said piece of rope, a gamocha and a handkerchief by preparing a seizure list (Ext-3). 7. PWs 2, 3 and 5 are co-villagers who visited the place of occurrence and were present at the time of holding inquest by the I.O. They also got their signature on the inquest report as witnesses. All of them testified that the dead body of the deceased was lying on the floor inside the house of the appellant. The fact of recovery of dead body of the deceased inside the house of the appellant stands proved by the corroborative evidence of PWs 2/3 and 5. 8. All of them testified that the dead body of the deceased was lying on the floor inside the house of the appellant. The fact of recovery of dead body of the deceased inside the house of the appellant stands proved by the corroborative evidence of PWs 2/3 and 5. 8. The aforesaid fact of recovery of the dead body from inside the appellant's house has been corroborated by the evidence of PW-6, Shri Kamal Baruah, I.O. of the case. As per his evidence, he visited the place of occurrence at 9 p.m. and conducted the inquest on the dead body of Renu Rajkhowa. He found one handkerchief inside the mouth of the deceased and one gamocha, one piece of it around the neck of the deceased and the other piece on a 'batam' of timber about 7/8 feet from the ground of 'chali kitchen/verandah'. He found the deceased lying on the floor of the kitchen facing upwards. He found scum coming out from nose and mouth. He found the left wrist broken and injury on the thumb of left leg. He also found blood coming out of her vagina. He conducted the inquest in presence of the witnesses and prepared the inquest report, Ext-2, on which he put his signature, Ext. 2(5), and sent the dead body to Bihali PHC for post mortem examination. He seized one torn gamocha and a handkerchief with red and white border which was taken out from the mouth of the deceased and prepared a seizure list Ext-3. He put his signature, Ext-3(2). He recorded the statement of witnesses and suspected Benudhar Rajkhowa who was hiding in his original paternal house from where he arrested him and forwarded to the court on next date. As per his evidence, the original paternal house of the appellant is situated just at a distance of 1/2 k.m. from the place of occurrence. 9. From the evidence of PWs 1, 5 and 6, the prosecution has proved that a torn gamocha was found; a piece around the neck of the deceased and other piece on a 'batam' timber of the roof. This piece of evidence is corroborated by all the aforesaid witnesses. Additionally, the I.O. has proved that a handkerchief was found in the mouth of the deceased which was brought out and seized. This piece of evidence is corroborated by all the aforesaid witnesses. Additionally, the I.O. has proved that a handkerchief was found in the mouth of the deceased which was brought out and seized. There is no corroboration of other witnesses to the recovery of the said handkerchief from the mouth of the deceased. However, although it is not corroborated, we are of the view that the evidence of the I.O. on recovery of a handkerchief from the mouth of the deceased, is acceptable because of fact that the other witnesses did not come to the place of occurrence to observe/examine the dead body closely and it escaped their notice. Moreover, it was already dark by the time the inquest was held at 9 p.m. The I.O. (PW6), as he was duty bound, examined the dead body thoroughly and closely at the time of conducting inquest and it was quite natural that he could see and recover the handkerchief from the mouth of the deceased. This piece of evidence of the I.O. cannot be disbelieved or discarded as he seized the handkerchief in presence of the witnesses and the said witnesses put their signatures on the seizure list and the inquest report. 10. The fact recovery of the dead body of the deceased which was lying on the floor of appellant's house with incriminating articles like a piece of gamocha around the neck of the deceased and the other part of it tied on the tie beam and a handkerchief in the mouth of the deceased, having been found proved, there arises an important question as to whether the deceased committed suicide by hanging herself or it was a case of homicidal hanging. If it is case of homicidal hanging, the next question that naturally arises is who has committed the homicidal hanging. If it the appellant husband of the deceased or somebody else? The real question is whether it is case of suicide or homicide. 11. To find out an answer to this, we would first like to appreciate and examine the evidence of PW4, Dr. J.C. Bey, Sr. Medical and Health Officer, Bihali P.H.C., who conducted post mortem examination over the dead body of the deceased on 6.9.2011, He prepared the post mortem examination report, Ext.-4, bearing his own signature, Ext.-4(1) and the signature of Joint Director of Health Services, Sonitpur Ext-4(2) who countersigned the said post mortem report. J.C. Bey, Sr. Medical and Health Officer, Bihali P.H.C., who conducted post mortem examination over the dead body of the deceased on 6.9.2011, He prepared the post mortem examination report, Ext.-4, bearing his own signature, Ext.-4(1) and the signature of Joint Director of Health Services, Sonitpur Ext-4(2) who countersigned the said post mortem report. The report contains the following findings : External appearance Average built. Rigor Mortis absent. Eyes closed and mouth half opened. One lacerated injury on the big toe of left front 1/2 x 1/2 skin deep. Blood clot present. One continuous ligature mark present on upper part of the neck around the neck which is transverse. Skin abrasion present in it. The ligature mark is 2 cm in breadth and 1/2 cm. in depth. Underlying tissues were bruised. Cranium, and spinal canal Scalp Congested Skull Healthy Vertebrae Dislocation of Atlanto-occipital joint. Membrance Congested Brain Congested. Spinal Cord Injured at Cervical level. Thorax Pleurae Congested Lungs Congested Heart Rt. Chamber contain little blood and left chamber was empty. Abdomen Mouth and Pharynx-Congested Stomach contain food. Other organ of the abdomen were found healthy. More details description of injury or disease The ligature mark is continuous and transverse on the upper part of the neck and lacerated in the big toe of left ante mortem in nature. Opinion Death was due to shock and asphyxia as a result of strangulation. 12. The said Medical Officer PW4 was asked 3 questions by the court which were replied by him. The said questions and answers are relevant for the purpose of deciding this case and as such, they are quoted below: Q. What may be the cause of injury? Ans. The laceration on the left toe may be caused by blunt object. Q. In your opinion, as per finding received by you it is simple case of suicide? Ans. It is not a simple case of suicide. Q. In your opinion is it a case where deceased was strangulated to death and thereafter, she was hanged? Ans. In my opinion, based on the findings of post mortem she was strangulated to death and it is not a case of suicide. 13. In cross-examination, the said Medical Officer stated that the lacerated injuries were not the cause of death of the deceased. Ans. In my opinion, based on the findings of post mortem she was strangulated to death and it is not a case of suicide. 13. In cross-examination, the said Medical Officer stated that the lacerated injuries were not the cause of death of the deceased. He found ligature mark around the neck of the deceased and found legation of vertebrae at the side of ligature mark. He found no other injuries on any part of the deceased except the laceration on the toe and the ligature mark on the neck. The defence counsel put suggestion to PW4 that the deceased did not die to strangulation. He straightaway denied it and firmly stated that in his opinion it was a case of strangulation to death and not a case of suicide. He further added that had it been a case of suicide the ligature mark should have been oblique and not continuous and transverse. But in the present case, it was continuous and transverse. He also firmly stated that when there is a forceful impression of rope tie moves ligature mark. 14. Amongst the court witnesses CW8, Shri Dimbeswar Das, the father of the deceased is considered relevant. He deposed that he used to visit his daughter 2/3 times in a month. He found his daughter and appellant in normal condition but his daughter sometime used to report him that some quarrel often took place between his daughter and the son-in-law on some petty domestic issues. However, his daughter did not specifically report him about any incident of atrocities on her by the appellant. In cross-examination, he stated that his daughter was suffering from depression as her mother died when she was only about 9/10 years old. In examination-in-chief on being informed about the death of his daughter, in the same night and in the following, he came to the house of his son-in-law (appellant) but he was not found at home. 15. CW6, Shri Mohendra Rajkhowa is the cousin brother of appellant and his house is situated at a distance of 1 k.m. from the house of the appellant. According to his evidence, before marriage with the deceased, the appellant married socially a woman from his own caste about 4 years back. There was family trouble between them. They had quarrels and their married life was unsuccessful. His said wife left for her parental home. According to his evidence, before marriage with the deceased, the appellant married socially a woman from his own caste about 4 years back. There was family trouble between them. They had quarrels and their married life was unsuccessful. His said wife left for her parental home. Thereafter, the appellant brought the deceased who belongs to different caste, namely, Scheduled Caste without marrying her for which there was trouble amongst the brothers leading to partition of properties. The appellant initially resided in his paternal house but subsequently he used to live separately along with the deceased at Bilatia where he opened a pharmacy. According to him, the said pharmacy was only for namesake without any medicine or Doctor. 16. In the statement under section 313, Cr.PC, the appellant, in reply to question Nos. 1 and 2 admitted that he was living with the deceased together but separate from his paternal house. In reply to question No. 3 also he admitted that the dead body of the deceased was lying on the floor of the kitchen of his house. In reply to question No. 4 he further admitted that there was a piece of gamocha in Runu's (deceased) neck. From the evidence on record, it is found proved/admitted that the appellant earlier married a woman from the same caste who deserted him and subsequently brought the deceased belonging to Scheduled Caste community without marrying her and started living together in a separate house away from the paternal house and carried on business by opening a pharmacy which was not at all successful and the alleged incident took place in his house inasmuch as the dead body of the deceased was found lying on the floor of the kitchen of his house and when the police visited the place of occurrence he was not found at his house and was arrested from his paternal house where he was hiding as per the evidence of I.O., PW-6. We, therefore, find at all facts, except the question as to whether it is case of suicide or homicide, have been proved by sufficient corroborated evidence. 17. The Medical Officer, PW-4, after committing post mortem examination, in a very categorical manner came to a conclusion that it was not a case of suicide, rather a case of murder by strangulation. It is an expert opinion of the Doctor. 17. The Medical Officer, PW-4, after committing post mortem examination, in a very categorical manner came to a conclusion that it was not a case of suicide, rather a case of murder by strangulation. It is an expert opinion of the Doctor. Such medico-legal expert opinion by itself cannot be accepted as a piece of legal evidence under the law and on the basis of such expert opinion, no conviction can be ordered unless it is corroborated by ocular or circumstantial evidence. The ocular evidence is not available in this case. There are only some circumstantial evidence and the court is to find out whether there are circumstantial evidence on record. On scrutiny of the available evidence, we find the following incriminating circumstances against the appellant: (i) The appellant had an unsuccessful marital life with his earlier wife belonging to same caste whom he married socially and who due to some differences/quarrel deserted him; (ii) The appellant brought the deceased and started living with her as husband and wife without marrying her which was not accepted by his family as well as the society; (iii) The alleged suicide of his wife took place inside his house but the appellant did not bother to inform the people. He left the place of occurrence, i.e., his own house and kept himself hiding in his original paternal house until he was found arrested by police; (iv) He did not inform his father-in-law with whom he had a good relation and who used to visit them at least 2/3 times in a month; (v) As per the evidence, the appellant and the deceased were living in the house (place of occurrence) and there was no other person living with them at the time of occurrence; (vi) There is no suicide note left by the deceased; (vii) The deceased never expressed or indicated before her father or any other person that she was unhappy with the appellant due to mental or physical torture caused by the appellant. There was no cause to commit suicide by the deceased rather the appellant is found to be suffering from depression or frustration since he was separated and outcast by his family members and the society for bringing and living with the deceased without solemnizing marriage and that too a woman from different caste and his business was unsuccessful and living without any means of livelihood. The appellant was a frustrated person for whom his deceased wife became a burden. 18. We are of the firm view that the prosecution has been able to bring home the charge against the appellant by circumstantial evidence supported by corroborated evidence of the prosecution witnesses as well as the court witnesses. The Medical expert's opinion that the death was caused to the deceased by strangulation is found acceptable and the same can be accepted as a piece of legal evidence for recording conviction against the accused. We cannot persuade ourselves to take a different view on the cause of death, i.e., by strangulation and not by an act of suicide. Intact, in the facts and circumstances of the case no two views are possible except one that goes against the appellant. The charge of committing/causing death to the deceased by strangulation and homicidal hanging is found proved beyond all reasonable doubt and we find no reasons to interfere with the impugned judgment convicting and sentencing the appellant under section 302, IPC. Accordingly, we affirm and uphold the same. The appeal fails. The appellant shall serve the sentence as awarded by the learned trial court. 19. Before parting with the case, we record our appreciation for the legal assistance rendered by Mr. S.K. Medhi, learned amicus curiae and direct the State Legal Services Authority to pay him Rs. 5,000 as legal fee. Send down the records forthwith.