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2016 DIGILAW 846 (GAU)

Aswini Barman v. State of Assam

2016-09-07

AJIT SINGH, N.CHAUDHURY

body2016
JUDGMENT AND ORDER : Ajit Singh, J. The sole appellant Aswini Barman has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.2000/- with default stipulation. 2. The victim of the incident was Kiran Bala Ray, aged about 34 years. 3. According to the prosecution case, Kiran married to appellant about 13 years prior to the date of incident. They also have one daughter Uttara Barman (PW-5), aged 11 years. The appellant treated Kiran with cruelty for the demand of three wheeler- Auto rickshaw (Model Ape) as dowry. And on 6.2.2012, he ultimately killed Kiran by setting fire on her after pouring kerosene. Brothers of Kiran were informed and one of them, namely, Surya Kanta Roy (PW-1) made the ejahar Exhibit 1 at New Bongaigaon Police Outpost falling within the jurisdiction of Police Station Bongaigaon. The police on reaching the place of occurrence found the body of Kiran in the enclosed-yard about 150 yards away from appellant’s house. Exhibit 2 is the inquest report of the body of Kiran. Dr. Kochir Ali Ahmed (PW-4) conducted the post mortem examination on the dead body of Kiran. According to his post mortem examination report exhibit 4, Kiran died due to hundred percent burn injuries. 4. The police after investigation filed a charge sheet against the appellant for an offence under Section 306 of the Indian Penal Code. But the trial court framed charge under Section 302 of the Indian Penal Code also. 5. During the trial, the appellant abjured his guilt and pleaded false implication. The appellant also took the defence that perhaps Kiran might have committed suicide. 6. The trial court relying upon the prosecution witnesses convicted and sentenced the appellant under Section 302 of the Indian Penal Code and sentenced him as aforesaid. The trial court, however, acquitted him of the charge under Section 306 of the Indian Penal Code. 7. It is argued on behalf of the appellant that even according to the prosecution witnesses, the appellant was not at home when the incident took place and therefore, finding of the trial court about his committing the murder of Kiran is perverse on the face of it. Learned Additional Public Prosecutor, on the other hand, defended the conviction and sentence of appellant. 8. Witnesses-Surya Kanta Roy (PW-1) and Bani Kanta Roy (PW-3) are brothers of Kiran. Learned Additional Public Prosecutor, on the other hand, defended the conviction and sentence of appellant. 8. Witnesses-Surya Kanta Roy (PW-1) and Bani Kanta Roy (PW-3) are brothers of Kiran. Rohini Kumar Roy (PW-2) is her father. All these witnesses have admitted that Kiran was married to appellant in the year 1999 i.e. about 13 years prior to the date of incident. They have testified that appellant used to treat Kiran with cruelty for the demand of three wheeler-Auto rickshaw (Model Ape) as dowry. And since the demand could not be fulfilled, he murdered her by setting fire on her after pouring kerosene. Admittedly, none of them are eye witnesses to the incident. Surya Kanta Roy (PW-1) has admitted in his cross examination that appellant never demanded the vehicle from them. Likewise, Rohini Kanta Roy (PW-2) has also admitted that he was only informed that appellant was demanding one ape vehicle. Apparently, no demand for it was made to him. Bani Kanta Roy (PW-3) says that his sister had reported to him that appellant was demanding a vehicle. As already seen above, the marriage of appellant with Kiran was solemnized about 13 years prior to the date of incident. Their daughter Uttara Barman (PW-5) is aged about 11 years. These witnesses have admitted in their evidence that no compliant or any report was made by them regarding the demand of vehicle by the appellant. It is, therefore, difficult to believe that appellant would have treated Kiran with cruelty for 13 long years only for non-fulfillment of his demand of vehicle, more particularly, when the witnesses admit that at the time of marriage, no demand of dowry whatsoever was made by the appellant. 9. Surya Kanta Roy in his cross examination has admitted that he came to know that appellant had gone to attend his duty and returned home only after getting information about the incident. Similar is the admission of Rohini Kanta Roy (PW-2) in his cross examination. Therefore, if the appellant was not at home when Kiran sustained burn injuries, the finding of the trial court that he committed her murder is apparently perverse. Uttara Barman (PW-5) has also testified that on the morning of date of incident, her mother Kiran had prepared tea for her and her father-appellant; where after the appellant had left the house for work. Uttara Barman (PW-5) has also testified that on the morning of date of incident, her mother Kiran had prepared tea for her and her father-appellant; where after the appellant had left the house for work. She also says that she did not see her father and mother quarreling. 10. For these reasons, we are unable to sustain the impugned judgment of conviction and sentence of the trial court. We accordingly set aside the same. The appellant is acquitted of the charge. The appeal is allowed.