Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 543 (GAU)

L. Laikho v. State of Mizoram

2015-05-08

A.K.GOSWAMI, M.R.PATHAK

body2015
JUDGMENT : M.R. Pathak, J. 1. This criminal Appeal from jail is preferred by the accused/appellant, namely, L. Laikho being aggrieved by the judgment and order of conviction dated 08.12.2010 passed by learned Additional Sessions Judge, Lunglei Judicial District, Lunglei in Criminal Trial No. 145/2009 arising out of Tuipang Police Station Case No. 7/2005 by which the appellant/accused had been convicted under Section 304 of the Indian Penal Code and sentenced him for imprisonment of 10 years and fine of Rs. 5,000/-, in default, imprisonment for another 50 days, setting off the period of detention already undergone by him. The prosecution case, as it emerges from the First Information Report dated 29.10.2005 (Exhibit-1) lodged by the informant H. Harold, P.W.1, is that his sister Hnipaw, wife of the accused L. Laikho of Serkawr died on 13.09.2005, while she and her husband were in their Jhum hut and he had suspicion with regard to the death of his sister and therefore, requested the authority to take necessary action under the law. 2. On receipt of said FIR, Tuipang P.S. Case No. 7/2005 corresponding to G.R. Case No. 267/2005 under Section 302 IPC of the Indian Penal Code was registered. 3. During investigation, police arrested the accused appellant, the husband of the deceased, on 29.10.2005, exhumed the dead body of the deceased that was already buried after funeral on 14.09.2005, made inquest on the exhumed dead body of the deceased on 03.11.2005, sent the same for its postmortem examination, visited the place of occurrence, drawn its sketch map, recorded the statements of the witnesses acquainted with the facts of the case & the accused under Section 161 Cr.P.C. The learned Magistrate on 14.11.2005 and 02.12.2005 recorded confessional statement of the accused appellant. On receipt of the Postmortem Report (enclosed with the charge sheet but not exhibited during trial of the case) and on completion of the investigation, finding sufficient evidence against him, the Investigating Officer vide No. 1/2006 dated 14.02.2006 submitted the Charge-Sheet in said Tuipang P.S. Case No. 7/2005 under Section 302 IPC. against the accused/appellant. 4. Section 302 IPC being exclusively triable by the Court of Sessions, the learned Additional Deputy Commissioner, Lunglei committed the matter to the Court of learned Additional District Magistrate (Judicial), Lunglei. 5. against the accused/appellant. 4. Section 302 IPC being exclusively triable by the Court of Sessions, the learned Additional Deputy Commissioner, Lunglei committed the matter to the Court of learned Additional District Magistrate (Judicial), Lunglei. 5. On receipt of the said case record and considering the fact that the accused did not have sufficient means to engage any counsel to defend himself, learned Additional District Magistrate (Judicial), Lunglei, on 21.02.2006, appointed one Mr. B. Gupta, Advocate to defend the accused at the expense of the State. Learned Trial Court on 18.06.2007 framed Charge under section 302 IPC against the accused/appellant in the case, which was read over and explained to him, to which the accused/appellant pleaded not guilty and claimed to be tried. As such, the trial of the case began. 6. In order to bring home the charges, against the accused/appellant, the prosecution examined 9 (nine) witnesses on its behalf and the defence-cross-examined all the prosecution witnesses. It is to be noted herein that while recording of evidence of prosecution witnesses during the trial of said Tuipang P.S. Case No. 7/2005 corresponding to G.R. Case No. 267/2005 was going on, due to separation of judiciary from executive in the State of Mizoram, the case was transferred to the Court of learned District & Sessions Judge, Lunglei District, Lunglei wherein the case was registered and re-numbered as Criminal Trial No. 145/2009. Learned District & Sessions Judge, Lunglei by his order dated 01.07.2009 endorsed the said Criminal Trial to the Court of learned Additional Sessions Judge, Lunglei for his trial and disposal and accordingly, the trial of the said case was taken up by the said learned Court. After completion of recording of evidence of prosecution witnesses, the statement of the accused/appellant under Section 313 Cr.P.C. was recorded on 15.09.2010, where he denied all the allegations made against him. However the accused/appellant did not adduce any defence evidence. 7. The learned Additional Sessions Judge, Lunglei, upon appreciation of the evidences adduced by the prosecution and records of the case, recorded the impugned judgment of conviction as aforesaid and hence, the present appeal. 8. We have heard Mr. Ricky Gurung, learned Amicus Curiae for the accused appellant and Mr. A.K. Rokhum, learned Public Prosecutor, Mizoram, representing the State. 9. Mr. The learned Additional Sessions Judge, Lunglei, upon appreciation of the evidences adduced by the prosecution and records of the case, recorded the impugned judgment of conviction as aforesaid and hence, the present appeal. 8. We have heard Mr. Ricky Gurung, learned Amicus Curiae for the accused appellant and Mr. A.K. Rokhum, learned Public Prosecutor, Mizoram, representing the State. 9. Mr. Gurung, learned Amicus Curiae for the accused appellant submitted that there is no eye witness to the incident and it is mere allegation against the accused. He further stated that there is also no direct evidence and enough circumstantial evidence to establish the guilt of the accused under the charged section. It was further submitted that the deceased was looked after by the accused and there was no family discord between the accused and his wife. It is urged on behalf of the accused that false allegation had been lodged against him and the prosecution failed to establish the guilt of the accused beyond all reasonable doubt and therefore, the impugned judgment of conviction and sentence against the accused/appellant is liable to set aside and quashed. 10. On the other hand, Mr. Rokhum, learned Public Prosecutor supporting the judgment and order of conviction, submitted that prosecution has placed sufficient materials to prove the guilt of the accused and the accused/appellant has made voluntary confession with regard to his committing the crime. 11. We have considered the submissions advanced by the learned Amicus Curiae as well as by the learned Public Prosecutor, perused the evidence adduced by the prosecution in the case and also the impugned judgment of conviction of the learned Trial Court. 12. In order to appreciate the arguments, advanced by the learned counsels appearing for both the parties and to examine the correctness of the impugned Judgment and Order of conviction, it will be appropriate to briefly scrutinize the evidence on record. 13. P.W. 1, the informant and near relative of the deceased, in his evidence deposed that the deceased with her husband, the accused, were living in Jhum hut at Serkawr and he attended her funeral function. 13. P.W. 1, the informant and near relative of the deceased, in his evidence deposed that the deceased with her husband, the accused, were living in Jhum hut at Serkawr and he attended her funeral function. Initially they thought the deceased died of disease, but after some time her spirit demonstrated that it is her husband, the accused/appellant who killed her and the same was also the belief of everyone at Serkawr and after discussing the matter with his family members, he submitted the FIR (Exhibit-I) in the case. In his cross-examination, P.W. 1 submitted that he does not have any personal knowledge as to how the victim died. 14. P.W. 2, the brother of the deceased, in his evidence deposed that the deceased with her husband were living in Jhum hut since 04.05.2005 and it was reported around 08:00 p.m. on 13.09.2005 that her said sister died and then they went to the Jhum and took the dead body. He stated that when he looked at the dead body, he saw blood coming out from her mouth & nose and her neck was slightly dislocated. He stated that though they had suspicion that she was killed, but without reporting the matter, they buried her dead body. P.W. 2 also stated that when he asked the accused about the cause of his sister's death, he replied to him that she died of T.B. P.W. 2 further stated that they all were aware that the deceased was suffering from T.B: In his cross-examination, the P.W. 2 stated that he did not have any personal knowledge as to how his sister died. He further denied the suggestion that his statements are not true and that he has falsely implicated the accused. 15. P.W. 3, another brother of the deceased, in his evidence submitted that he heard that his sister, who was living with her husband Laikho, the accused of the case, at their Jhum hut died and thereafter they took the dead body and buried her as per their custom and later they suspected that she did not the of natural cause and the matter was informed to police. In his cross-examination, P.W. 3 submitted that the reason for suspicion arose as the deceased re-incarnated through one of his paternal relatives. He denied the suggestion that he has falsely implicated the accused. 16. In his cross-examination, P.W. 3 submitted that the reason for suspicion arose as the deceased re-incarnated through one of his paternal relatives. He denied the suggestion that he has falsely implicated the accused. 16. P.W. 4, one of the neighbors of the accused, in his evidence stated that on the evening of 13.09.2005, while they were at their Jhum huts, the accused who was also at his own Jhum hut called them and told them that his wife died and he needed help from them. As such they went to his Jhum hut and saw the dead body of the deceased that was lying on the floor of the hut of the accused. In his cross-examination, said P.W. 4 stated that the deceased was an unhealthy person and they believed that she died a natural death. 17. P.W. 5, president of MTP of Serkawr, in his evidence stated that on the evening of 13.09.2005 he was informed that the deceased died at their Jhum hut and they took the dead body and buried it and after some time rumor was spread that the deceased might not the of natural cause. But he stated that he did not have any personal knowledge about the crime and about the suspicion. 18. P.W. 6, whose Jhum hut was just below the Jhum hut of the accused, in his evidence deposed that on 13.09.2005 around 06:00 p.m., while he was in his Jhum hut, the accused called him and requested him to come to his hut as his wife was sick and he hurriedly went to the hut of the accused, found his wife lying in the floor with some clothes on her and on being asked, the accused replied that his wife was suffering from cough, for which some blood came out from her nose. P.W. 6 then touched the body of wife of the accused and felt that the body was warm and thereafter he sought help from his neighbors of nearby Jhum huts and when all of them arrived in the Jhum hut of the accused, they found his wife was already dead. Then they carried the dead body to Serkawr and handed over the same to her relative on 14.09.2005. Then they carried the dead body to Serkawr and handed over the same to her relative on 14.09.2005. In his cross-examination, P.W. 6 denied the suggestion that he heard any scream for help from the deceased and also denied that he saw any mark of violence on her body and he stated that he did not check the dead body. 19. P.W. 8 (instead of P.W. 7, wrongly recorded as P.W. 8), father of the deceased, in his evidence deposed that in the month of September he was informed that his daughter died at Jhum due to bleeding from nose and then he went to Serkawr and attended the funeral. In the next month, he received information that his daughter did not the of natural cause but was murdered by her husband and thereafter, he escorted the Magistrate and the Medical Officer in exhumation of the dead body of the deceased, which he identified through Dead Body Receipt Exhibit-B, where he is a signatory. In his cross-examination P.W. 8 stated that he was informed by the accused that the deceased died due to excessive bleeding from her nose and at the first instance his opinion was that the victim died of natural death. 20. P.W. 9 (instead of P.W. 8, wrongly recorded as P.W. 9), the autopsy doctor who conducted postmortem examination of the dead body of the deceased, in his evidence deposed that the dead body of the deceased that was buried on 14.09.2005 was exhumed on 03.11.2005 from the grave yard of Serkawr and was examined thereafter. The Doctor submitted that the said dead body was partially decomposed and on examination, bruises on the (i) forehead above right eyebrow of about 2 x 3 cms. (ii) left cheek of about 2 x 2 cms. & (iii) on lateral side of the left arm about 4 x 23 cms. and about 300 mls. of haemorrhagic fluid in the thoracic cavity were seen. The Doctor also found that right lung of the deceased was partially decomposed & shrunken and left lung was partially decomposed & not shrunken; deceased's brain was partially decomposed; upper incisor was found missing, which was ante-mortem in nature, caused by blunt object, which was a grievous injury in nature and deceased's adjacent incisor had fallen during examination. The Doctor also found that right lung of the deceased was partially decomposed & shrunken and left lung was partially decomposed & not shrunken; deceased's brain was partially decomposed; upper incisor was found missing, which was ante-mortem in nature, caused by blunt object, which was a grievous injury in nature and deceased's adjacent incisor had fallen during examination. The Doctor also deposed that there was no sign of any injury and fracture on the skull, vertebra or thoracic wall etc. or on other parts of the body of the deceased. The Doctor also stated that there was no fracture and no fatal injury on the dead body and as per his opinion only possible cause of death found on the dead body is due to collection of haemorrhagic fluid in the right thoracic cavity. In cross-examination said Doctor submitted that postmortem examination on the body was conducted after a lapse of one month, no fracture and no fatal injuries were found on the dead body and in the haemorrhagic collection of blood may be caused by lung disease or injuries and he denied the suggestion that he is falsely deposing before the Court. 21. P.W. 11 (instead of P.W. 9, wrongly recorded as P.W. 11), Investigating Officer of the case, in his evidence deposed that the P.W. 1 of Tuipang on 29.10.2005 lodged an FIR that his sister while in their Jhum along with her husband died on 13.09.2005 and he suspected that his sister died an un-natural death and requested police to ascertain the matter. Accordingly, FIR was registered and the matter was investigated and during investigation the accused admitted that he killed his wife by beating and punching and that the deceased was buried and her body was exhumed after about 30 (thirty) days. The said Investigating Officer further deposed that apart from medical report and confessional statement of the accused no direct evidence could be found against him and that at the time of post mortem examination the dead body was partially decomposed. He denied that he wrongly implicated the accused. 22. The said Investigating Officer further deposed that apart from medical report and confessional statement of the accused no direct evidence could be found against him and that at the time of post mortem examination the dead body was partially decomposed. He denied that he wrongly implicated the accused. 22. From the records of the case it is seen that both the confessional statements dated 14.11.2005 and 02.12.2005 made by the accused before the Magistrate concerned were neither placed as evidence before the Trial Court by the prosecution nor it was duly recorded as provided by Sections 164 & 281 of Cr.P.C. The record of the case does not reveal anything that before recording confessional statements of the accused on 14.11.2005 and 02.12.2005, the concerned Magistrate gave a statutory warning that the accused is not bound to make a confession, that the Magistrate was first satisfied that the said confessional statements of the accused was voluntary or that it was recorded and signed in the manner as provided in Section 281 Cr.P.C. and the Magistrate concerned did not add any memorandum at the foot of the said confessions as required under the law. The concerned Magistrate who recorded such confessional statements of the accused has also not been examined by the prosecution. As such, alleged the voluntary confession dated 14.11.2005 and 02.12.2005 made by the accused/appellant cannot be considered as valid evidence in the present case to prove the guilt of the accused. 23. From the record it is seen that postmortem examination report has also not been exhibited by the prosecution during the trial of the accused, except examining the autopsy Doctor, who conducted postmortem examination on the dead body of the deceased. 24. P.W. 2, brother of the deceased deposed that that from 04.05.2005 till her death, the deceased lived in the Jhum hut with her husband, the accused. There is no such evidence on record that both the accused and the deceased during their stay at Jhum hut since 04.05.2005 till her death on 13.09.2005 lived in any discordant relation. 24. P.W. 2, brother of the deceased deposed that that from 04.05.2005 till her death, the deceased lived in the Jhum hut with her husband, the accused. There is no such evidence on record that both the accused and the deceased during their stay at Jhum hut since 04.05.2005 till her death on 13.09.2005 lived in any discordant relation. The autopsy Doctor in his evidence deposed that the cause of death of the deceased was due to collection of haemorrhagic collection of fluid on the right thoracic cavity and clarified that such collection of blood in lung may be caused by lung disease or injuries and he did not find any fracture or any fatal injury on the body of the deceased. The P.W. 2, brother of the deceased, in his evidence deposed that they all were aware that the deceased suffered from T.B. (Tuberculosis), which is a known lung disease. 25. From the evidence of the said autopsy Doctor P.W. 8, it is seen that in his such examination, one upper incisor was found missing from the body of the deceased, which was not found on the dead body and the adjacent incisor had fallen during examination. The said Doctor stated that the missing of the upper incisor on the dead body was antemortem in nature, caused by blunt object and the said injury was grievous in nature. The accused/appellant was the only person who was with the deceased in the Jhum hut. Though no fatal injuries or any such fractures could be found on the dead body of the deceased, accused/appellant did not rebut and failed to explain about such finding of the Doctor with regard to the missing upper incisor on the deceased, which was a grievous injury antemortem in nature. Thus, it is apparent that the deceased was assaulted by the accused. Collection of haemorrhagic fluid in the lungs, in the circumstances, can be attributed to the injury caused by the accused. 26. In view of the above, we are of the view that there is evidence to show that appellant committed the offence under Section 304 IPC. 27. It is submitted at the Bar that accused/appellant was arrested in the case on 29.10.2005 and thereafter was granted bail during the trial on 04.10.2007. 26. In view of the above, we are of the view that there is evidence to show that appellant committed the offence under Section 304 IPC. 27. It is submitted at the Bar that accused/appellant was arrested in the case on 29.10.2005 and thereafter was granted bail during the trial on 04.10.2007. He was rearrested during the trial again on 08.01.2010 and since then the accused/appellant is in custody in the present matter for about 7 (seven) years 3 (three) months. 28. Therefore, considering the facts and circumstances of the case, in which the offence was committed, we are of the opinion that the ends of justice would meet if the accused/appellant is sentenced to undergo the imprisonment for the period, which he already has undergone. 29. Accordingly, while maintaining the conviction under Section 304 IPC, we modify the sentence as indicated above. The accused/appellant need not pay the fine as imposed in the impugned judgment. 30. Before parting with the case, the Court acknowledges the assistance rendered by learned Amicus Curiae Mr. Ricky Gurung, appearing for the accused-appellant. The Mizoram State Legal Services Authority is directed to pay him his legal remuneration of Rs. 7,000/- (Rupees Seven Thousand only). Accordingly, with the above modification of sentence, this appeal is partly allowed Registry shall send down the LCR with a copy of this Judgment.