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2014 DIGILAW 78 (SIK)

Lall Bahadur Rai v. State of Sikkim

2014-09-25

SUNIL KUMAR SINHA

body2014
JUDGMENT (ORAL) Sinha, J. 1. Appellant, Lall Bahadur Rai, has been convicted under Section 304 Part II of the IPC and sentenced to undergo SI for 3 years and to pay fine of Rs.5000/-with default sentence of SI for 6 months by the Principal Sessions Judge, East Sikkim at Gangtok, on 23.05.2014 in ST Case No.60/2013. 2. The facts, briefly stated, are as under:- 2.1 The appellant was a Class IV staff in Raj Bhawan, Gangtok. He was residing in a government 4th accommodation situated on the floor of a composite building in the campus of Raj Bhawan. Other Class IV employees were also residing in different blocks of the same building. Deceased Rakhi Rai (wife of the appellant) and Sayog Rai (minor son of the appellant) were also residing with him. On 12.11.2011, at 08.30 p.m. there was a birthday party in the quarter of one of the coworkers. The appellant, his wife and son had gone to attend the birthday party. There some altercation took place between the appellant and the deceased which was witnessed by Lakpa Lepcha (PW-13), Binod Lepcha (PW-7) and Arjun Pradhan (PW-8). They intervened in the matter and took the deceased to her quarter. The appellant and his son also followed them. The appellant, thereafter, closed the door of his quarter from inside. In the morning, the deceased was found dead inside the quarter. She had sustained multiple injuries including bruises and scalds having many blisters on various parts of her body. 2.2 The incident was reported to the police by Bimal Rai (PW-2) and the First Information Report was registered. The Investigating Officer reached to the place of occurrence, and prepared inquest of the dead body of the deceased. The dead body was sent for post-mortem. The post-mortem examination was conducted by Dr. K. B. Gurung (PW-12). 2.2 The incident was reported to the police by Bimal Rai (PW-2) and the First Information Report was registered. The Investigating Officer reached to the place of occurrence, and prepared inquest of the dead body of the deceased. The dead body was sent for post-mortem. The post-mortem examination was conducted by Dr. K. B. Gurung (PW-12). He noticed following injuries on the dead body of the deceased: (1) Swelling over the face with blackening of both eyelids; (2) multiple bruises of different sizes and multiple blisters due to scalding with multiple small lacerations on both hips; (3) multiple blisters due to scalding and bruises of different sizes on the neck; (4) multiple bruises of different sizes and multiple blisters due to scalding on the chest; (5) multiple bruises of different sizes and areas of peeling of epidermis due to scalding on the abdomen; (6) multiple bruises of different sizes over both the shoulders and both upper limbs; (7) multiple bruises of different sizes along with multiple areas of peeling of the epidermis due to scalding over the back of chest, abdomen and buttocks; (8) blisters over the labia on both sides due to scalding; (9) multiple bruises of different sizes and multiple areas of scalding with blisters and peeling of epidermis on both thighs and legs. 2.3 The autopsy surgeon opined that the above injuries were ante-mortem and the cause of death was scald injuries and multiple injuries caused by blunt impact. The injuries were collectively sufficient to cause death in the ordinary course of nature. The postmortem report is Exbt.13. 2.4 Various articles belonging to the deceased and the appellant, including the leather belt of the appellant, were seized during the course of investigation. These articles were sent for their chemical examination to Central Forensic Science Laboratory (CFSL) Kolkata from where a report (Exbt.15) was received. According to the CFSL report, almost all the articles, including the t-shirt and belt belonging to the appellant were stained with human blood of ‘A’ group. 2.5 The charge sheet was filed under Section 302 and 201 IPC. On trial, the Sessions Judge relied on various circumstances set forth by the prosecution and held that it was the appellant who had assaulted the deceased by hands and fists and belt and hot water was poured upon the deceased. 2.5 The charge sheet was filed under Section 302 and 201 IPC. On trial, the Sessions Judge relied on various circumstances set forth by the prosecution and held that it was the appellant who had assaulted the deceased by hands and fists and belt and hot water was poured upon the deceased. However, taking note that a quarrel had preceded the incident and the matter was between husband and wife, the learned Sessions Judge held that it was a case in which the appellant was liable for punishment under Section 304 Part II IPC and not under Section 302 IPC. The appellant thus was convicted and sentenced as above. Hence this Appeal. 3. Mr. Udai P. Sharma, learned Legal Aid Counsel appearing on behalf of the appellant, has argued that the circumstances set forth by the prosecution were not fully established; the circumstances were not of conclusive nature and tendency; the evidence of the doctor would suggest that it may be a case of accidental death while taking bath, therefore, the conviction cannot be sustained. 4. On the other hand, Mr. Karma Thinlay Namgyal, learned Additional Public Prosecutor appearing for the State/Respondent, has opposed these arguments and supported the judgment passed by the Sessions Court. 5. I have heard Counsel for the parties. 6. Following are the main circumstances on which the Sessions Judge has relied for conviction of the appellant under Section 304 Part II IPC :- (1) The deceased died homicidal death; (2) The appellant and the deceased were the only two adult inmates in the house in which the dead body of the deceased was found; (3) The appellant did not deny his presence in the house in the fateful night, however, he did not offer any explanation as to how his wife died homicidal death in his house; (4) The other circumstances relating to blood stains of similar group found on the clothes and the belt of the appellant were also supporting the case of the prosecution. 7. Mr. Sharma has contended that it comes in the evidence of the Autopsy Surgeon (PW-12) that if a person has a bath under a geyser with boiling water, the person could sustain injuries, i.e. blisters as found on the body of the deceased. Therefore, it was a case of accidental death. The above contention raised by Mr. 7. Mr. Sharma has contended that it comes in the evidence of the Autopsy Surgeon (PW-12) that if a person has a bath under a geyser with boiling water, the person could sustain injuries, i.e. blisters as found on the body of the deceased. Therefore, it was a case of accidental death. The above contention raised by Mr. Sharma cannot be accepted in view of the other injuries sustained by the deceased. It is not a case in which the deceased had simply sustained scald injuries resulting into blisters. It is a case in which multiple bruises on account of blunt impact were also sustained by the deceased. If the case would have been one of accidental while taking bath, multiple bruises and other injuries over the face, eyes, lips, back, abdomen and other parts of the body, as shown in the postmortem report, would not have been sustained by the deceased. That apart, it is a matter of common knowledge that even after sustaining injuries by hot water, normally death is not instantaneous. I am of the view that in the light of the other injuries sustained by the deceased, it cannot be held that it was a case of accidental death on account of taking bath by hot water from the geyser. Thus, the finding relating to homicidal death cannot be assailed. 8. Lakpa Lepcha (PW-13), Binod Lepcha (PW-7) and Arjun Pradhan (PW-8), after altercation between the appellant and the deceased at the birthday place, had taken the deceased to her quarter. The appellant and his son also came there and thereafter, the appellant, taking in his wife (deceased) and minor son, bolted the door of the quarter from inside. Thus, it is clear that only three persons were inmates of the house in the fateful night where the deceased was found dead on the next morning. 9. The appellant did not offer any explanation as to how his wife (deceased) died homicidal death in the night. Even in his 313 Cr.P.C. statement, he did not offer any explanation before the Sessions Court. In Trimukh Maroti Kirkan vs. State of Maharashtra (2006) AIR SCW 5300, interpreting the provisions of Section 106 of the Evidence Act, the Supreme Court held that ….. Even in his 313 Cr.P.C. statement, he did not offer any explanation before the Sessions Court. In Trimukh Maroti Kirkan vs. State of Maharashtra (2006) AIR SCW 5300, interpreting the provisions of Section 106 of the Evidence Act, the Supreme Court held that ….. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, is insisted upon by the Court. A Judge does not preside over a criminal trial merely to see that no innocent person is punished. A Judge also presides to see that a guilty man does not escape. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of S.106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. In case of no explanation or false explanation, it would become an additional link in the chain of circumstances. 10. In the instant case, as we have already stated, the appellant was the only adult member in the house in the fateful night. He has not denied the above fact. Thus, under Section 106 of the Evidence Act, the facts relating to homicidal death of his wife must be within the knowledge of the appellant. The appellant has not discharged his burden by making any explanation in this regard. Thus, it was a grave circumstance against him. 11. He has not denied the above fact. Thus, under Section 106 of the Evidence Act, the facts relating to homicidal death of his wife must be within the knowledge of the appellant. The appellant has not discharged his burden by making any explanation in this regard. Thus, it was a grave circumstance against him. 11. In accidental death on account of taking bath by hot water, blood stains could not have been found on various articles belonging to the appellant and the deceased. In the instant case, the blood stains were found not only on the clothes of the appellant and the deceased, but they were also found on the bed and other places near the dead body. The CFSL report would also show that all the blood stains were of human blood and they were of ‘A’ group. That is to say that the blood of the blood group of the deceased were found on the clothes and the belt of the appellant allegedly used by him for beating the deceased. This was also a circumstance proved against the appellant. 12. In a case based on circumstantial evidence, the principle of law is that the circumstances set forth by the prosecution must be fully established. All the circumstances so established must be of conclusive nature and tendency. The circumstances should not be capable of being explained and the chain of circumstantial evidence also must be complete. 13. In the instant case, as has already been stated, almost all the circumstances set forth by the prosecution were fully established. The circumstances were not capable of being explained. The circumstances were of conclusive nature and tendency and the chain of circumstantial evidence was also complete. 14. For the foregoing reasons, the Appeal filed by the appellant is liable to be dismissed and is hereby dismissed.