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2013 DIGILAW 658 (GAU)

Tikendrajit Mohan v. State of Assam

2013-09-06

ANIMA HAZARIKA, PRASANTA KUMAR SAIKIA

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JUDGMENT Anima Hazarika, J. 1. Heard Mr. K. Bhattacharjee, learned counsel appearing for the appellant. Also heard Mr. K.A. Mazumdar, learned Addl. Public Prosecutor, Assam appearing for the State respondent. This appeal is directed against the judgment and order dated 10.10.2012 passed by the learned Sessions Judge, Sivasagar in Sessions Case No. 77(S-S)/2005 convicting the accused appellant under Section 302 IPC and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 5,000/-, in default, to suffer rigorous imprisonment for six months more. 2. The facts briefly stated are that, an FIR was lodged with the Officer-in-Charge of the Sivasagar police station on 13.12.2001 by one Smti. Juri Duara, Secretary, on behalf of Lakhimi Mahila Samiti and Smti. Bijoya Gogoi, contending inter alia that on 7.12.2001, Friday, at around 10-30 P.M. hearing hue and cry at the house of Tikendrajit Mohan (the accused appellant herein) son of Sri Purnakanta Mohan, resident of Banmukh, Gohaingaon, the neighbors went there in a run and witnessed Smti. Monika Mohan, wife of the accused appellant, burning in front of her husband in an absolutely naked state. Later on, the victim was taken to Joysagar Hospital and after she was administered the first aid she was shifted to Assam Medical College and Hospital, Dibrugarh. In the meanwhile, she died. However, the public suspected that the death was a consequence of husband's torture. Upon receipt of the FIR so lodged, police registered a case being Sivasagar Police Station Case No. 369/2001 under Section 498A IPC and started investigation. After completion of investigation police submitted charge sheet under Section 304(B) IPC. The offence being exclusively triable by the court of sessions, the same was committed to the learned Sessions Judge, Sivasagar by the learned SDJM, Sivasagar. Learned Sessions Judge, Sivasagar on the materials available, framed charge under Section 304B IPC. The charge so framed being read over and explained to the accused, he pleaded not guilty and claimed to be tried. 3. The prosecution examined as many as 13 witnesses in support of its case. After closure of the prosecution evidence, the learned trial Court recorded the statements of the accused under Section 313 Cr.P.C. Defence also adduced two evidence namely, Jogamaya Mohan (DW 1) and Khanindra Mohan (D.W. 2). Defence plea was of complete denial. 4. In the case in hand, earlier, the court framed charge under Section 304-B IPC. After closure of the prosecution evidence, the learned trial Court recorded the statements of the accused under Section 313 Cr.P.C. Defence also adduced two evidence namely, Jogamaya Mohan (DW 1) and Khanindra Mohan (D.W. 2). Defence plea was of complete denial. 4. In the case in hand, earlier, the court framed charge under Section 304-B IPC. However, later on, during trial, learned court further framed charge under Section 302 IPC against the accused. The learned trial Court found that prosecution has failed to prove the charge under Section 304-B IPC and as such the accused was acquitted of the charge under Section 304-B IPC. On the other hand, considering the evidence on record found that prosecution has been able to prove the charge under Section 302 IPC beyond all reasonable doubt and thus convicted him under Section 302 IPC and sentenced as aforesaid. Hence the instant appeal. 5. The moot question, which falls for determination in this appeal, is thus:- Whether the finding of guilt arrived at by the learned trial Court is justified on the basis of the evidence on record and the law relevant thereto? 6. We have carefully perused the entire record of the case including the impugned judgment and order. Also heard the learned counsel appearing for the parties at length. 7. Utmost importance to note in this case is that the medical evidence, which clearly reveals that Monika Mohan (deceased) had died as a result of the ante mortem flame bum injury. Doctor found no other injury except burn injuries. Smell of kerosene was found not present. 8. It is to be noted herein that in the present case in hand, there is no direct evidence, not to speak of eye witness. The impugned judgment and order was passed on circumstantial evidence. The law governing the circumstantial evidence is fairly well established. 9. The Hon'ble Apex Court in a catena of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) the circumstances should be of definite tendency unerringly pointing towards guilt of the accused. (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete 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. 10. In the case of Hanumant Govind Nargundkar Vs. State of M.P. reported in AIR 1952 SC 343 , Hon'ble Apex Court observed as thus: 10........It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 11. In the case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in AIR 1984 SC 1622 , while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. It is held at para. 152 of Sharad Birdhichand (supra) as thus- 152(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. .....the circumstances concerned 'must or should' and not 'may be' established......... It is held at para. 152 of Sharad Birdhichand (supra) as thus- 152(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. .....the circumstances concerned 'must or should' and not 'may be' established......... (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 so 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. 12. Reference may be made to a decision of this Court in C. Chenga Reddy Vs. State of A.P. reported in (1996) 10 SCC 193 wherein at para. 21 it has been observed as thus:- 21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. 13. To found conviction of the accused on the basis of circumstantial evidence, the settled position of law is that every link in the chain of circumstances pointing towards the guilt of the accused must be clearly established and the chain of circumstances so established shall not only be consistent with the guilt of the accused but that it shall also be inconsistent with his innocence. There is yet another rider attached to the basing of conviction on circumstantial evidence. The rider being that every reasonable hypothesis of the innocence of the accused must be excluded before the conviction is founded on such circumstantial evidence. 14. Bearing the above principles in mind let us scan the evidence of the prosecution as well as defence witnesses and examine carefully the circumstances appearing in this case against the appellant. 15. P.W. 1, Smti. 14. Bearing the above principles in mind let us scan the evidence of the prosecution as well as defence witnesses and examine carefully the circumstances appearing in this case against the appellant. 15. P.W. 1, Smti. Juri Duara is a hearsay witness. She has stated that the people suspected that the accused killed his wife by setting fire on her. The accused person's house is about 3-4 houses apart from her house. At the time of the occurrence, at 10-30 P.M. they were sleeping after having their dinner. Having heard the terrible commotion towards the house of the accused they woke up and she asked her husband to go there and enquired about the matter. Going there he found the deceased burnt by fire. Other persons assembled there. Her husband Bipin Duara saw the accused shouting that his wife caught fire and wife of the accused with burn injuries lying naked near the tube well. The accused was loitering near the courtyard without reacting to the situation. Since it was night she did not go herself towards the place of occurrence. Later, younger brother of the accused took the injured to Joysagar Hospital wherefrom she was sent to Dibrugarh Medical and she died there. The victim was pregnant at the time of the incident and her elder child was 5 years old. P.W. 1 is the Secretary of the Lakhimi Mahila Samiti of their village. Since nobody had taken any steps against the accused she made a thorough enquiry into the matter and lodged an FIR and hence, there was delay in lodging the F.I.R. P.W. 1 has further stated that even though the village Headman learned about the incident he did not inform the matter to the police. Smti. Bijoya Gogoi of their Samiti, who is also a witness of the incident wrote the ejahar. During investigation, police recorded her statement. In the cross-examination, she has stated that she had not seen the occurrence herself, she has only described the incident as heard from her husband. She also did not visit the place of occurrence herself. She does not particularly know about the conjugal life of the accused and the deceased prior to the incident. She has further stated that she would have learned if there was anything serious. There is no electricity connection to the accused person's house. They used lamp as well as open lamp. She does not particularly know about the conjugal life of the accused and the deceased prior to the incident. She has further stated that she would have learned if there was anything serious. There is no electricity connection to the accused person's house. They used lamp as well as open lamp. The suggestions put to her that they have lodged the FIR against the accused conspiringly and that their marriage took place about 8-9 years before the incident have been denied. 16. PW 2, Smti. Bijoya Gogoi has stated that she knows both the accused and his wife as they are co-villagers and neighbors. The accused person's house is adjacent to that of theirs. At the time of incident, she was sleeping but woke up hearing terrible outcry of woman, towards the house of the accused. The deceased was shouting repeatedly "I am dying" "I am dying". Hearing noise, her cousin Cheniram Gogoi, nephew of Lakhikanta came in a run and reached at the place of occurrence. Upon reaching the accused person's courtyard they found him wearing a pair of shorts and vest. They found the deceased burnt and lying naked near the tube well begging for water. She kept on shouting "accused has killed me," "Tikendra has burnt me". Her skin and hair were burnt totally. Although the accused was standing in the courtyard they did notice him not reacting even though he had witnessed such a serious incident. Immediately, the village Headman was informed. He came to the place of occurrence and witnessed the incident Being unable to bear the burn of burning injury the deceased grew restless and crept from near the tube well to the pond and fell into the water, the village Headman recovered the injured. Even then she kept on shouting "Muk marile," "Muk khai dile," directing at the accused, i.e. her husband. In the meantime, the accused person's younger brother Khanindrajit Mohan came and took the injured to his house. Some plantain leaves were cut and injured was laid thereon. Thereafter she was taken to Joysagar Hospital in an auto-rickshaw and from there she was taken to Dibrugarh Medical College and Hospital. Thereafter, she died at the Dibrugarh Medical College itself. They saw the occurrence in the light of lamp and open lamp taken by the public. Some of them even brought torchlight. Thereafter she was taken to Joysagar Hospital in an auto-rickshaw and from there she was taken to Dibrugarh Medical College and Hospital. Thereafter, she died at the Dibrugarh Medical College itself. They saw the occurrence in the light of lamp and open lamp taken by the public. Some of them even brought torchlight. At the time of the incident, the deceased was pregnant and their daughter was four years old. The incident took place within seven years of their marriage. She does not know about the relationship between the accused and the deceased. Prior to the incident she did not witness anybody from Monika's maternal home having visiting terms with accused person's family. Since the village Headman did not work out any solution, they, on behalf of Manila Samiti lodged the complaint with the police station. Ext. 1 is the ejahar and Ext. 1(1), 1(2) and 1(3) are her signatures. After lodging the ejahar police visited the place of occurrence and had recovered some half burnt hair of woman and empty jerry cane of kerosene with the capacity of five litres, two pieces of half burnt clothes, Mekhela Sadar etc. from the bedroom of the accused. She is also a seizure witness, Ext. 2 is the seizure list and Ext. 2(1) is her signature. Material Ext. 1, 2 and 3 are the half burnt hair, jerry cane, burnt mekhela sadar respectively. The Magistrate recorded her statement under Section 164 CrPC also. Ext. 3 is the statement and Ext. 3(1), 3(2) are her signatures. During cross-examination, PW 2 has stated that courtyard of Khanindra's house is separate. The kitchen set of the accused is adjacent to the bed room. The accused dealt in tea leaves. The injured was taken to the hospital about half an hour after the incident. The accused also accompanied Khanindra while his wife (the deceased) was taken to hospital. After the incident she saw the accused loitering in the courtyard. He was silent. Going to the place of occurrence she met the accused person's younger brother and his wife. However, she has denied the suggestions put to her that while giving statements before the police she did not state in the manner she has stated while deposing in the Court Other suggestions put to her have been denied. 17. PW 3, Smti. Nirada Gogoi, who is the President of the Manila Samiti is also a hearsay witness. However, she has denied the suggestions put to her that while giving statements before the police she did not state in the manner she has stated while deposing in the Court Other suggestions put to her have been denied. 17. PW 3, Smti. Nirada Gogoi, who is the President of the Manila Samiti is also a hearsay witness. She has stated that Bijoya Gogoi told her that on the previous night, prior to the occurrence the accused person's wife had been shouting "bachao" "save me". She has further stated that she could not say how the incident took place. The incident took place in the night of 7.12.2001 but they lodged the FIR on 13.12.2001 as they had to hold a meeting of the Manila Samiti to take a decision and thereby there was delay in lodging the complaint. They strongly suspected the accused. She has further stated that during investigation, police recorded her statements. After the incident, the accused fled away leaving his house and landed property. Now the landed property of that place has been sold out. In the cross-examination, she has stated that the accused had come to the house along with his wife where the incident took place, few days before the incident. It was their ancestral property. Earlier their father had worked in the garden and the accused with others had lived with their father at the tea garden. She has no direct knowledge regarding the incident. She has stated that they have added accused person's name in the FIR on suspicion and that she has deposed in the court as told to her by Smti. Bijaya Gogoi. 18. PWs 4 and 5 also deposed in the same tune as that of PWs 1, 2 and 3. PW 4 is the cousin of PW 2, Bijaya Gogoi. He has stated that he is not aware as to whether the accused had any involvement in the death of his wife. They only suspected him. After the occurrence the accused left his homestead and left for somewhere else. In the cross-examination, he has stated that he is not aware about the relationship of the accused and his wife, as the wife of the accused (the deceased) had never made any complaint with him against her husband (the accused). About a year before the incident, the accused along with his wife had come to the said house. 19. In the cross-examination, he has stated that he is not aware about the relationship of the accused and his wife, as the wife of the accused (the deceased) had never made any complaint with him against her husband (the accused). About a year before the incident, the accused along with his wife had come to the said house. 19. On the same line, PW 5 has stated that the accused might have disagreement with his wife but they have not heard any quarrel taking place between the accused and the deceased. Earlier the accused lived in the tea garden with his wife. A year before the occurrence they had come to their old homestead and started living there by erecting a house. As the injured shouted "I am being burnt" they suspected the accused had set fire to his wife by pouring kerosene on her. During cross-examination, PW 5 has stated that he has not seen how the incident of fire occurred. When the injured was taken to the hospital the accused also accompanied her along with his younger brother. He has never seen the accused taking liquor. 20. PW 6 also deposed in the same tune as that of PW 4. He saw a quilt burning inside the bedroom of the accused. Even the clothes of the bed room were burning. However, during cross-examination, he has stated that before the incident, they have not heard any commotion in the house of the accused. He has further deposed that brother of the accused Khanindrajit was among the people who assembled in the court yard of the accused. Later on, the accused came back from the courtyard. 21. PW 7 is the brother of the deceased. He has stated that when the deceased visited her parent's house she reported about the fact of physical and mental torture done to her by the accused and his family. She also told that the accused demanded money from her. On the date of occurrence, he was informed over phone by his younger brother that Monika had got burnt in gas fire and was undergoing treatment in a Nursing Home and thereafter shifted to Assam Medical College. When he came to his sister's house of Banmukh, some neighbors told him that in the noon on that day the family members of Monika assaulted her and they heard commotion. When he came to his sister's house of Banmukh, some neighbors told him that in the noon on that day the family members of Monika assaulted her and they heard commotion. So, after the incident Mahila Samiti lodged the complaint. During cross-examination, he has stated that he had never visited the house of the accused at Banmukh where the occurrence took place. At the time of the occurrence the accused was not doing any service or he had any means of livelihood. PW 7 worked in the Digboi Refinery. They helped the accused by offering money every now and then. The deceased had told him about her grief and family problems. Along with Monika, the accused, too had visited their house. 22. PW 8 is a seizure witness. He is not any eye witness and he came to know about the occurrence from the villagers. During cross-examination, he has stated the accused dealt in tea leaves. Since other people and PW 8 used to buy tea leaves from him he had terms with him. He had never seen any quarrel taking place between the accused and the deceased. 23. PW 9, Smti. Swapna Dutta Deka has stated that on 10.12.2001, she, as an Executive Magistrate conducted the inquest on the dead body of the deceased in presence of the witnesses, namely, Tikendrajit (accused) and Dwijen Bora. Ext. 4 is the inquest report. Ext. 4(1) is her signature. Defence declined to cross-examine this witness. 24. PW 10 is the doctor who held autopsy on the dead body of the deceased and found bum injuries on the body involving the whole body except the cranium and upper back. There was no infection and total percentage of body surface area involved is 90%-95% approximately. In the opinion of the doctor, the cause of death was due to shock as a result of ante mortem flame burn injury. PW 10 has stated that except the burn injury, there was no other injury. Smell of kerosene was not present. 25. PW 11 Nitul is a seizure witness to the seizure list Ext. 2. Ext. 2(4) is his signature. However, police did not show him any article. He was only asked to put his signature in the seizure list. 26. PW 12 Smti. Lahati Bora is the mother of the deceased. She has stated that Manila Samiti informed her about the death of her daughter. 2. Ext. 2(4) is his signature. However, police did not show him any article. He was only asked to put his signature in the seizure list. 26. PW 12 Smti. Lahati Bora is the mother of the deceased. She has stated that Manila Samiti informed her about the death of her daughter. The members of the Manila Samiti informed Dwijen and others that Monika was put to death by pouring kerosene oil on her person by her husband, i.e. the accused. She has further stated that the deceased visited their house frequently. During last visit she complained of physical torture, demand of money perpetrated by her husband. Inspite of the physical torture, the deceased lived with her husband till her death. After her death, she was cremated by the family of the accused. During cross-examination, she has stated that the accused did not demand money from them. The accused was an unemployed and as such the deceased's elder brother assisted him by paying for CI sheets for their house and also by paying money for maintenance of their family but she had never visited the house of her daughter and the accused. She has further stated that she does not know how her daughter caught fire. 27. PW 13 was in-charge of Sivasagar police Station on 13.12.2001. On that day, after receipt of the written ejahar from Smti. Juri Duara, Secretary of the Mahila Samiti, a case being Sivasagar Police Station Case No. 396/2001 was registered. The investigation of the case was entrusted to S.I., Mukul Bhattacharjee. However, he died in the meantime. Upon completion of the investigation, Mukul Bhattacharjee submitted the charge sheet vide Ext. 6. PW 13 was familiar with Mukul Bhattacharjee's handwriting as well as the signatures and accordingly, he verified the signature of Mukul Bhattacharjee. During cross-examination, he has stated that no FIR was lodged by the relatives of the deceased but they have adduced evidence. 28. Smti. Jogamaya Mohan, DW 1 who is the sister-in-law of the accused, has stated that on the day of occurrence, at 9-00/9-30 P.M., she heard hue and cry of Monika as "marilu" "marilu", "I am dying", "I am dying,". Her house is situated near the house of the accused. The accused also screamed. Having heard the scream, she came out of her house and reached the courtyard of the house of the accused and saw Monika on fire. Her house is situated near the house of the accused. The accused also screamed. Having heard the scream, she came out of her house and reached the courtyard of the house of the accused and saw Monika on fire. She also saw her brother-in-law Tikendrajit trying to douse the fire. A little after that villagers turned up. The deceased's whole body was burnt. After dousing the fire, her husband went to bring an autorickshaw so that she could be taken to the hospital. At that time, she took Monika to her place. Then the deceased told her that when she had been frying fish, kerosene from open lamp had fallen on the stove and she got fired. In the state of burning, Monika went to the tube well near the courtyard and sat under that. In the mean time, the villagers reached there. Later on Monika was taken to the Nursing Home in an autorickshaw. She has further stated that at the time of the occurrence, Monika and her husband (accused) possessed good relationship. Police interrogated her regarding the occurrence. In the cross-examination, DW 1 has stated that when asked, Monika stated that the fire had broken out when kerosene oil from open lamp fallen on the burner of the gas stove. However, she has not seen the incident of her own. She has not seen as to what had happened at the accused's house at the beginning. 29. DW 2, Khanindrajit stated that on the day of occurrence at 9-00/9-30 PM, he heard a commotion as his brother Tikendrajit called him by shouting. Going there he saw his sister-in-law, i.e. the deceased was being burnt and she was sitting under the tube well near the courtyard. When asked, she told him that she got burnt while frying fish in the stove of gas cylinder. While sitting under the tube well he had not seen any wearing on her person as all the wearing had been burnt. He brought her to his house by wrapping with clothes. Thereafter, he took her to the hospital by bringing an autorickshaw. His elder brother, i.e. the accused also accompanied him. On 9.12.2001, Monika died at Dibrugarh Medical College and Hospital. The villagers turned up within ten minutes of the occurrence. Going there he found the accused wearing a gamocha. During cross-examination, he has deposed in the same tune as that of DW 1. His elder brother, i.e. the accused also accompanied him. On 9.12.2001, Monika died at Dibrugarh Medical College and Hospital. The villagers turned up within ten minutes of the occurrence. Going there he found the accused wearing a gamocha. During cross-examination, he has deposed in the same tune as that of DW 1. The suggestions put to him that he has deposed for the sake of his elder brother has been denied. 30. In the statement made under Section 313 CrPC, the accused denied the allegation made against him and stated that he did not set Monika on fire. His wife told him that when she had been burning the stove, kerosene fallen on her and she got burnt However, he did not see that. 31. On the basis of the evidence on record, mainly relying upon the evidence of PWs 2, 4, 5 and 6, the learned trial Court convicted the accused on the following circumstances;- i) the occurrence took place on 7.12.2001 at about 10-30 P.M. in the house of the accused. At that time, the deceased wife was at her husband's house. Hearing hue and cry from the house of the accused PWs 2, 4, 5 and 6, neighbor of the accused immediately reached the place of occurrence, ii) PW 6, Lakhinath reached the place of occurrence and saw the accused Tikendrajit standing in the gateway of his house in normal condition. At that time, quilt and clothes of the room of the accused were burning which PW 6 extinguished by spraying water. PW 2, Smti. Bijaya Gogoi, who also came immediately, found the accused in his courtyard and his wife was with naked condition asking for water. She was lying in the side of the tube well. PW 4, Cheniram Gogoi also found the accused in the gateway of his house in standing position. On enquiry he did not give any response. iii) PWs 2, 4, 5 and 6 found the wife of the accused with burn injuries on her person in front of tube well of her house. She was in restless condition and was naked at that time. She jumped into the nearby pond to save herself but she was rescued from the pond and taken to the hospital. At that time she was telling to the witness that fire was set on her person by her husband, i.e. the accused. She was in restless condition and was naked at that time. She jumped into the nearby pond to save herself but she was rescued from the pond and taken to the hospital. At that time she was telling to the witness that fire was set on her person by her husband, i.e. the accused. iv) The medical evidence corroborated the fact that the death of the deceased was due to shock as a result of ante mortem flame burn injuries 90%-95%. 32. On a close scrutiny of evidence of PWs 2, 4, 5 and 6 on the one hand and PWs 1, 3, 7 and 12 on the other hand, what becomes glaring in the eyes is that; (i) according to the evidence of PW 1, who is a hearsay witness, she was not aware about the conjugal life of the accused and the deceased before the incident, the deceased did not tell her anything, however, she would have learnt if there was anything serious. There is no electricity connection to the accused person's house. They used lamp as well as open lamps. When her husband went to the house of the accused after hearing commotion, he found the accused shouting that his wife was caught by fire. However, they suspected that the accused killed his wife by setting fire to her. She has further stated that the houses of Tilak Mohan, Saitendra Chetia, Padma Mohan and Amulya Mohan are situated in between the houses of the accused and theirs. But very surprisingly, the nearby neighbors were not examined by police nor they were made witnesses by prosecution. (ii) PW 3 is the President of Manila Samiti. She is a hearsay witness. She came to know about the incident on the following day, though she is a co-villager of the accused. She stated that PW 2, Bijoya Gogoi told her that when she went to the house of the accused on the previous night, she heard accused persons wife had been shouting "bachao, bachao" (save me, save me),". PW 3 has further stated that though she had no direct knowledge about the incident, she had added the name of the accused in the FIR on suspicion and that whatever she heard from PW 2, she has stated in the court. PW 3 has further stated that though she had no direct knowledge about the incident, she had added the name of the accused in the FIR on suspicion and that whatever she heard from PW 2, she has stated in the court. (iii) PW 7, though own brother of the deceased, has stated that he had never visited the house of his sister at Banmukh. However, the accused and deceased used to visit them. The PW 7 neither lodged any complaint before police nor he had suspected the accused to have killed his wife, Monika, by setting fire on her. (iv) PW 12, mother of the deceased has stated that the Manila Samiti informed her about the death of Monika. They informed PW 7 and others that Monika was killed by her husband pouring kerosene oil and setting fire to her. Despite the above information received by them, the family members of Monika did not lodge any FIR/complaint before the police. PW 12 has further stated that the accused did not demand money from them. As he was an unemployed, the family members of Monika paid for CI sheets for their house and also money for maintenance. (v) PW 2 after hearing hue and cry from the house of the accused person, went there and saw the accused person standing in the courtyard indifferently, he was silent and the deceased was shouting, "Mok khai dile, Mok khai dile," (I am ruined, I am ruined), directing the accused. The village headman on being informed came there but did not work out any solution. So, on behalf of the Mahila Samiti, after few days, she lodged the FIR. However, she did not know about the relationship of the accused with his wife (the deceased). But in her statement made under Section 164 Cr.P.C. she had stated that the accused was all along rebuking the deceased. On some material points, her statement made under Section 164 Cr.P.C. and the statements made before the court are not same. (vi) PW 4, in the same tune, stated about the incident. He further stated that he cannot say about the relationship of the deceased with her husband, the accused. But the deceased never made any complaint against her husband. He did not know whether the accused was involved in the incident. However, they suspected him. (vi) PW 4, in the same tune, stated about the incident. He further stated that he cannot say about the relationship of the deceased with her husband, the accused. But the deceased never made any complaint against her husband. He did not know whether the accused was involved in the incident. However, they suspected him. (vii) PW 6 has stated that after hearing the commotion in the house of the accused, he went there and saw Monika sitting near the tube well after she had been burnt, crying as "I am dying, I am dying,". He saw a quilt burning in the bed room. However, in chief, PW 6 has specifically stated that he cannot say how the deceased caught fire or who set her on fire. 33. If we perused the evidence of DW 1 and DW 2, we find that at 9/9-30 P.M. on the date of occurrence they heard cry of Monika as, "Morilu, Morilu,". The accused also screamed. Hearing the scream when DW 1 and DW 2 came out they saw Monika on fire and the accused trying to douse the fire. Thereafter the accused went to bring an autorickshaw so that Monika could be taken to the hospital. Monika, on being asked, told DW 1 that when she had been frying fish, kerosene from an open lamp had fallen on the stove and fire caught her. In the state of burning, Monika went to the tube well and sat under it. In the meantime, villagers reached there. Later on, Monika was taken to the hospital in an autorickshaw by the accused and her husband DW 2. Both the deceased and the accused had good relation at the time of the incident. 34. Having given a careful consideration to the evidence adduced by prosecution as well as defence, along with the evidence of the doctor, it transpires as follows:- i) It will be highly unsafe to place implicit reliance on the evidence of PWs 2, 4, 5 and 6, basing upon which the impugned judgment of conviction was passed, inasmuch as, they have stated that on suspicion, the FIR was lodged implicating the accused. They have further stated that they were not aware about the relationship between the deceased wife and accused husband. The deceased never complained anything against her husband. They have further stated that they were not aware about the relationship between the deceased wife and accused husband. The deceased never complained anything against her husband. ii) Knowing fully well about the unnatural death of the deceased, her family members did not lodge any FIR/complaint before police/any authority. iii) Nearby neighbors were not examined either by police under Section 161 Cr.P.C. during investigation nor before the Court, who would have been able to say about the relationship of the deceased and the accused. iv) Out of PWs 2, 4, 5 and 6, only PW 5 has stated that they suspect the accused to have set fire to his wife by pouring kerosene on her. v) PW 10, the doctor has specifically stated that except burn injuries there was no other injury. Further, smell of kerosene was found to be not present. The learned trial Court totally ignored the medical evidence while finding the accused/appellant guilty under Section 302 IPC basing on circumstantial evidence. vi) The learned trial Court did not at all consider the evidence of DWs 1 and 2. The court has not said anything as to why their evidence have been discarded, while placing reliance upon the PWs, including hearsay evidence. 35. In the case at hand, since there is no direct evidence on record showing that it was the accused and none but the accused, who had killed his wife by setting her on fire, every reasonable possibility of the deceased caught fire when she was frying fish as told by her to DWs 1 and 2, the accused's hand in killing his wife must be excluded, more so, the deceased never complained against her husband before PWs 1, 2, 3, 4, 5 and 6 who are co-villagers/neighbors of the deceased as well as the accused. 36. Because of the fact that there is, if we may repeat, no cogent evidence on record showing that it was the accused only who had killed the deceased by setting her on fire, that too without any motive, it will be extremely unsafe and hazardous to maintain the conviction of the appellant on such evidence. 37. The prosecution is, thus, required to prove convincingly that the accused has killed his wife by pouring kerosene and then setting her on fire. The evidence adduced in this regard, as has already been observed, inadequate and inconclusive in nature. 37. The prosecution is, thus, required to prove convincingly that the accused has killed his wife by pouring kerosene and then setting her on fire. The evidence adduced in this regard, as has already been observed, inadequate and inconclusive in nature. The death of the deceased in the present case is undoubtedly a tragic incident. But under our system of justice, no one can be punished unless legal proof is adduced in a court of law to establish that he has committed the offence for which he has been charged. Suspicion, howsoever, strong does not amount to legal proof. In the absence of legal proof that the appellant had committed the offence under Section 302 IPC, this Court has no option but to give the benefit of doubt to the appellant. 38. Under the circumstances, having given a careful consideration to the submissions made by the learned counsel appearing for the parties and in the light of the evidence discussed above, in the background of the principles laid down by the Hon'ble Apex Court as highlighted hereinabove, this Court is of the view that the prosecution has failed to prove beyond reasonable doubt that the accused committed the murder of deceased Monika Mohan. The appellant is therefore entitled to the benefit of doubt. 39. In the result and for the reasons stated, the appeal is allowed. The impugned judgment and order of conviction and sentence passed against the accused appellant is set aside and the appellant is directed to be set at liberty forthwith unless he is required to be detained in connection with any other case. Send down the lower Court records. Appeal allowed