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2015 DIGILAW 825 (GAU)

Mahendra Chouhan v. State of Assam

2015-07-13

C.R.SARMA, P.K.SAIKIA

body2015
JUDGMENT : C.R. Sarma, J. Heard Mr. RM Choudhury, learned Amicus Curiae, appearing for the appellant. Also heard Mr. D. Das, learned Addl. Public Prosecutor appearing for the State. 2. This appeal is directed against the judgment and order, dated 28.03.2012, passed by the learned Sessions Judge, Morigaon in Session Case No. 76/2007, whereby the learned Sessions Judge convicted the appellant under Section 302 IPC and sentenced him to suffer imprisonment for life and pay fine of Rs. 3,000/- (Rupees Three Thousand), only, in default, suffer rigorous imprisonment for 1 (one) year. 3. Aggrieved by the said conviction and sentence, the appellant has come up with this jail appeal. The prosecution case in brief, is that the appellant and his wife, hereinafter called the deceased, used to live together in their house along with their two minor children (aged about 3/5 years). On 19.07.2006, at about 12.30 am, the dead body of the deceased was found lying at a distance of 30/35 ft. from the house of the appellant. Coming to know about the said incident the informant, who is the brother of the deceased, rushed to the place of occurrence and found the dead body of the deceased in injured condition. Accordingly, an FIR was lodged with the police. 4. On receipt of the FIR, police registered a case under Section 302 IPC and launched investigation into the case. The Investigating Officer seized one wooden scale measuring 2 inch x 3 inch x 3 ft, used for levelling the plastering work by a mason. The said seizure was made by Ext. 3. Inquest was done in respect of the dead body and same was sent for post mortem examination. The Medical Officer (PW 8), who performed the post mortem examination found the following injuries in respect of the dead body :- “External appearance :- Rigor mortis was present. Abrasion in the face adn neck region. Abdomen :- Semi digested food materials present in the small intestine and faecal matters present in the rectum. Thorax :- Fracture of ribs, blood present in the right thorasic cavity. Muscles, Bones and Joints :- Fracture of ribs. Fracture of chest ribs (three) on the right side.” 5. The Medical Officer opined that the deceased died due to blood loss following fracture of ribs caused by injuries leading to cardio respiratory failure. Thorax :- Fracture of ribs, blood present in the right thorasic cavity. Muscles, Bones and Joints :- Fracture of ribs. Fracture of chest ribs (three) on the right side.” 5. The Medical Officer opined that the deceased died due to blood loss following fracture of ribs caused by injuries leading to cardio respiratory failure. At the close of the investigation, police submitted charge sheet against the appellant for the offence u/s 302 IPC. The offence u/s 302 IPC, being exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions and the learned Sessions Judge framed charge under Section 302 IPC against the appellant. The accused denied the charge and claimed for trial. In order to prove its case, the prosecution examined as many as 12 (twelve) witnesses including 3 (three) Court Witnesses. 6. Considering the evidence on record, the learned Sessions Judge convicted and sentenced the appellant as indicated above. Mr. R.M. Choudhury, learned Amicus Curiae, appearing on behalf of the appellant, has submitted that there is no direct evidence showing the involvement of the appellant and that the conviction is based only on presumption and surmise. The learned counsel has submitted that, in the absence of any substantive evidence, the conviction and the sentence based on presumption cannot be maintained in the eye of law. In view of the above, it is submitted that the learned Trial Judge committed error by convicting and sentencing the appellant and as such, the said conviction and sentence are liable to be set aside and quashed. The learned Amicus Curiae has prayed for acquittal of the appellant. 7. Controverting the said argument, advanced by the learned Amicus Curiae, Mr. D. Das learned Addl. Public Prosecutor, referring to the evidence on record, has submitted that both the appellant and the deceased being husband and wife, they used to live in the same house and as such, the occurrence having taken place during the night, the husband was liable to explain about the circumstances in which his wife, who was sharing the same bed, met with her death. 8. It is also submitted that the entire circumstantial evidence, surfaced from the evidence, on record, sufficiently lead to believe that, none other than, the appellant had assaulted the deceased with the seized wooden scale, as a result of which, she succumbed to the injuries. The learned Addl. 8. It is also submitted that the entire circumstantial evidence, surfaced from the evidence, on record, sufficiently lead to believe that, none other than, the appellant had assaulted the deceased with the seized wooden scale, as a result of which, she succumbed to the injuries. The learned Addl. Public Prosecutor has submitted that the learned Sessions Judge committed no error by recording the conviction and sentence as indicated above. Therefore, it is submitted that the impugned judgment and order need no interference. 9. Having heard the learned counsel for both the parties, we have carefully perused the evidence, on record. Admittedly, there is no eye witness or any other direct evidence against the appellant. The appellant and the deceased being husband and wife were living together. The appellant in his statement, given under Section 313 CrPC, has stated, that, though, he and the deceased were sleeping together, he did not know as to when she had left her house and under what circumstances she met with her death. The statement of the appellant that he had no knowledge about the leaving of the house by his wife, in the absence of any other contrary evidence, is found to be reasonable and believable explanation. That apart, the fact that the deceased was found lying at a distance of 30/35 ft. from their house is sufficient to believe that the appellant had no knowledge about the leaving of the house by the deceased. 10. In view of the above, the finding of the dead body of the deceased, in injured condition, at a distance 30-35 ft., from the house of the appellant, cannot be sufficient to believe and hold that the appellant was responsible for the death of the deceased. Though the Investigating Officer i.e. PW 7 had seized the wooden scale measuring 2inch x 3 inch x 3ft. from the premises of the appellant, there is nothing, on record, to show that the said wooden scale was used by the appellant in causing the injuries, sustained by the deceased. 11. Therefore, in the absence of any substantive evidence regarding involvement of the appellant, it cannot be conclusively held that the the appellant had caused the death of the deceased. None of the prosecution witnesses, including the Court Witnesses, saw the appellant causing the injuries aforesaid. 11. Therefore, in the absence of any substantive evidence regarding involvement of the appellant, it cannot be conclusively held that the the appellant had caused the death of the deceased. None of the prosecution witnesses, including the Court Witnesses, saw the appellant causing the injuries aforesaid. There is also nothing, on record, to show that, on the fateful night, the said couple had picked up any quarrel. There is also evidence, as indicated above by PW 4 that the deceased used to consume and sale country liquour. In view of the above, coupled with the finding of the deceased, in injured condition, at a distance 30-35 ft. from the house of the appellant, the involvement of some other person cannot be ruled out. Therefore, the finding of the dead body, in injured condition, that too at a considerable distance from the house of the appellant raises doubt about the involvement of the appellant. As admitted by the appellant at the relevant time he was sleeping with his children. 12. Law is well settled that in the event of existence of two possibilities, one going in favour of the accused and the other in favour of the prosecution, the benefit should always be given to the accused person. Therefore, we do not find it safe to conclude that none other than the appellant had caused the death of the deceased. As held in the case of Sharad Birdhi Chand Sarda Vs. State of Maharashtra (AIR 1984 1622), in order to base conviction, on the circumstantial evidence, the circumstances must form a complete chain of events conclusively leading to guilt of the accused person, excluding any hypothesis consistent with the innocence of the accused. The evidence given by the prosecution witnesses and the circumstances revealed there-from do not inspire confidence to conclude that, none other than the appellant had caused the death of the deceased. Therefore, we do not find the circumstantial evidence to be sufficient to base the conviction. 13. In view of above, on record, we have no hesitation in holding that the prosecution failed to prove the case against the appellant, beyond all reasonable doubt. Therefore, the appellant is entitled to get the benefit of doubt. Accordingly, we find merit in this appeal. 14. The appeal is allowed. 15. The impugned conviction and sentence are set aside. The appellant be acquitted and set at liberty forthwith. 16. Therefore, the appellant is entitled to get the benefit of doubt. Accordingly, we find merit in this appeal. 14. The appeal is allowed. 15. The impugned conviction and sentence are set aside. The appellant be acquitted and set at liberty forthwith. 16. Before we part with the record, we acknowledge, with appreciation, the assistance rendered by Mr. R.M. Choudhury as the Amicus Curiae. We direct that an amount of Rs. 7,500/- (Rupees Seven Thousand Five Hundred) be paid to Mr. R.M. Choudhury as his remuneration by the State Legal Services Authority. 17. Return the LCR.