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2016 DIGILAW 935 (GAU)

Brinesh Daimary v. State of Assam

2016-10-24

AJIT SINGH, MANOJIT BHUYAN

body2016
JUDGMENT AND ORDER : Ajit Singh, J. The sole appellant Brinesh Daimary has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.5,000/- with default stipulation. 2. The victim of incident was Rina Daimary, aged about 25 years. 3. According to the prosecution case, Rina Daimary was married to appellant five years prior to the date of incident and they have two daughters aged four years and two years. All of them lived together in a house situated at village Jalahgaon falling within the jurisdiction of Police Station Simla, District Baksa. Mother Bimala Daimary (PW-4) and sister Nazita Boro (PW-5) of the appellant also lived with him. On 6.5.2011 at about 7 p.m., the appellant quarrelled with Rina Daimary over some issue and thereafter caused as many as four injuries on her neck and head with a saw and fled. The incident took place in the kitchen of their house. Station Officer Khetra Konwar (PW-9) of Jalah Police Station on receiving telephonic information from “Gaonburah” about the incident rushed to the house of appellant. He found injured dead body of Rina Daimary lying inside the kitchen. He also found blood stained saw by the side of dead body. He, therefore, seized the saw vide seizure memo exhibit 2. An inquest of the dead body was prepared by Executive Magistrate Ansulal Basumatary (PW-10). Khetra Konwar then referred the dead body of Rina Daimary for post mortem examination. Samin Boro (PW-1) father of Rina Daimary made the ejahar exhibit 1 against the appellant which was registered as First Information Report. 4. Dr. Nayan Kumar Das (PW-11) conducted the post mortem examination on the dead body. He found as many as four chop wounds on the face, head and neck of Rina Daimary. According to the opinion of doctor, Rina Daimary died due to ante mortem chop wounds, which were caused by moderately heavy sharp cutting weapon. His post mortem examination report is exhibit 7. 5. The appellant could be arrested by the police on 8.5.2011, when he returned home. After completing the investigation the police filed a charge sheet against the appellant for his prosecution under Section 302 of the Indian Penal Code. 6. During trial, the appellant abjured his guilt and pleaded false implication. His defence was that he and Rina Daimary were attacked by Bodo militants in their house. After completing the investigation the police filed a charge sheet against the appellant for his prosecution under Section 302 of the Indian Penal Code. 6. During trial, the appellant abjured his guilt and pleaded false implication. His defence was that he and Rina Daimary were attacked by Bodo militants in their house. But, while being examined as an accused under Section 313 of the Code of Criminal Procedure, the appellant admitted that he had caused cut injuries to Rina Daimary. 7. It is argued on behalf of the appellant that he is innocent and has wrongly been convicted. Learned Additional Public Prosecutor, on the other hand, defended the conviction and sentence of the appellant. 8. In Ganeshlal Vs. State of Maharashtra (1992) 3 SCC 106 , the accused was prosecuted for the murder of his wife which took place inside his house. In this case, the Supreme Court observed that when the death had occurred in the custody of accused, he is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 of the Code of Criminal Procedure. The mere denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. 9. The Supreme Court in the case of Trimukh Maroti Kirkan Vs. State of Maharashtra (2006) 10 SCC 681 has again approved the well settled principle that when an incriminating circumstance is put to the accused and that accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. In this case the Supreme Court has also held that where a husband is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling house where the husband also normally resided and if the husband does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it was a strong circumstance pointing that he alone was responsible for the commission of crime. 10. 10. In the present case the dead body of Rina Daimary was found in the kitchen of appellant’s house where both of them lived. As mentioned above, Nazita Boro is elder sister of appellant. She has testified that she was cutting potatoes by sitting on the outer edge of the mud floor of house and Rina Daimary was cooking rice. At that time, the appellant was roping the cattle whereafter he entered inside the house. According to the evidence of Nazita Boro, on hearing the scream of Rina Daimary, she went to the kitchen and saw her lying on the floor with cut injuries and the appellant had a saw in his hand. Nazita Boro has also testified that on seeing the dead body of Rina Daimary, she became terrified and ran away from the house. Nazita Boro in her cross examination categorically denied the suggestion that Bodo militants had killed Rina Daimary or caused a cut injury on the neck of appellant. Nothing has been brought out in the cross examination of Nazita Boro to discredit her evidence. No suggestion has also been put by the appellant for his false implication by Nazita Boro. Similar is the evidence of Bimala Daimary, mother of the appellant. She has also testified that in the evening on the date of incident a quarrel took place between the appellant and Rina Daimary whereafter she heard an alarm raised by Rina Daimary and when she rushed to the house, she found Rina Daimary lying with cut injuries on her neck. Although Bimala Daimary admits in her cross examination that she did not see the appellant inside the house, this was because by the time she reached inside, he had fled. Bimala Daimary has admitted the presence of Nazita Boro in the house at the time of incident. She has also admitted that Nazita Boro had told her that appellant had killed Rina Daimary by cutting her neck. Even this witness has denied the suggestion of appellant that some extremists had killed Rina Daimary and had caused injuries in this neck. Be that as it may, we find the evidence of Nazita Bora and Bimala Daimary fully reliable and truthful. 11. Besides this, the appellant has also admitted while being examined as an accused that he himself had hacked Rina Daimary in anger as he was taking liquor. Be that as it may, we find the evidence of Nazita Bora and Bimala Daimary fully reliable and truthful. 11. Besides this, the appellant has also admitted while being examined as an accused that he himself had hacked Rina Daimary in anger as he was taking liquor. This statement of appellant stands fully corroborated by the evidence of Nazita Boro and Bimala Daimary, his own sister and mother. The post mortem examination report exhibit 7 has confirmed that cause of death of Rina Daimary was homicidal due to cut injuries on her neck which were caused by moderately heavy sharp edged weapon. There is thus ample evidence against the appellant that he killed his wife Rina Daimary with a saw in the kitchen of their house. 12. We find no merit in the appeal. It is accordingly dismissed.