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2016 DIGILAW 951 (GAU)

Md. Enus Ali v. State of Assam

2016-10-26

AJIT SINGH, MANOJIT BHUYAN

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JUDGMENT AND ORDER : Ajit Singh, J. The sole appellant Md. Enus Ali has been convicted for an offence under Section 302 of the Indian Penal Code and sentenced to imprisonment for lifeand fine of Rs.5,000/- with default stipulation for committing the murder of his wife Munu Begum. 2. According to the prosecution case, Munu and appellant, after having a love affair for almost three years, got married two years prior to the date of incident. Munu then gave birth to a son. On 25.1.2013, around 3 p.m., the appellant asked Munu to bring money from her parents and when she refused, the appellant quarrelled with her. Thereafter, the appellant doused Munu with kerosene and set fire on her. Munu cried for help, as a result of which, neighbours and her relatives rushed to save her. But, by that time, she sustained 80% extensive burn injuries and became unidentifiable. And, on being asked by the people, she disclosed that appellant had set fire on her, after pouring kerosene. Munu was carried to Golaghat Civil Hospital in an Ambulance. Maternal Uncle Md. Tafiqul Ali (PW-1) of Munu made the ejahar exhibit 1 against the appellant at Police Station Ghiladhari. Assistant Sub-Inspector Narendra Nath Gogoi reached the house of appellant around 8.20 p.m. There he recorded the statement of witnesses and arrested the appellant. At the time of arrest, the appellant had burn injuries on his left hand. Narendra Nath Gogoi also recorded the statement exhibit 5 of Munu wherein she categorically named the appellant as a person who had set fire on her after pouring kerosene merely because she refused to bring money from her parents. She also stated that after setting fire on her, the appellant wrongly disclosed to her sister Sunu Begum (PW-5) that she had set fire on herself. 3. Since the condition of Munu was not improving in Golaghat Civil Hospital, the doctor referred her to Jorhat Civil Hospital for better treatment. But there also her condition became even more critical. The doctor, after 11 days of Munu’s treatment advised that she be taken home, as there was no chance of recovery. In the result, Munu was brought home on 6.2.2013 by her father Md. Abdul Rajak (PW-3) where she died due to burn injuries. 4. On 6.2.2013, Dr. Mukul Sarmah (PW-13) conducted the post mortem examination. The doctor, after 11 days of Munu’s treatment advised that she be taken home, as there was no chance of recovery. In the result, Munu was brought home on 6.2.2013 by her father Md. Abdul Rajak (PW-3) where she died due to burn injuries. 4. On 6.2.2013, Dr. Mukul Sarmah (PW-13) conducted the post mortem examination. He in his post mortem examination report exhibit 10 opined that Munu died due to extensive burn injuries all over the body. 5. After completion of investigation, the police submitted charge sheet for the prosecution of appellant under Sections 498A and 304 B of the Indian Penal Code. The trial court, however, framed charges under Sections 498A, 304B and 302 of the Indian Penal Code against the appellant. The appellant pleaded not guilty but did not give any explanation regarding the incident of burning of Munu although he was present at that time. 6. The trial court after appreciating the evidence brought on record acquitted the appellant of the charges under Sections 498A and 304B of the Indian Penal Code on the ground that there was no reliable evidence regarding cruelty or demand of dowry against the appellant. The trial court, however, believed the prosecution case that on the evening of the date of incident, the appellant quarrelled with Munu to bring money from her parents and when she refused, he set her ablaze after pouring kerosene on her. The trial court, therefore, convicted and sentenced him under Section 302 of the Indian Penal Code. Aggrieved, the appellant has filed the present appeal. 7. 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. 8. The Supreme Court in the case of Trimukh Maroti Kirkan Vs. 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. 8. 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. 9. There is yet another decision of the Supreme Court, State of Rajashthan vs. Kashi Ram AIR 2007 SC 144 wherein it is held that when the accused was last seen with his murdered wife, he must give explanation or plead alibi in support of his innocence or else it would be a strong circumstance against him pointing towards his guilt. 10. In the present case, Munu sustained extensive burn injuries in the house of appellant, where both of them lived. At the time of incident, the appellant was present in the house. This fact is also established from the accused forwarding letter exhibit 7, which states that he had burn injuries on his left hand and was medically examined. It is to be noted that after the incident, the local people had caught hold of the appellant and handed over his custody on arrival of police at the place of occurrence. The appellant throughout the investigation and trial did not offer any explanation as to how Munu sustained extensive burn injuries. He has also not given any explanation regarding burn injuries on his left hand. The appellant throughout the investigation and trial did not offer any explanation as to how Munu sustained extensive burn injuries. He has also not given any explanation regarding burn injuries on his left hand. Munu ultimately died due to extensive burn injuries despite treatment in the hospital. First Information Report exhibit 3 was also lodged promptly by Tafiqul Ali against the appellant, wherein he categorically named the appellant as a person, who had set fire on Munu. Having regard to the above referred decisions of the Supreme Court and absolute silence on the part of appellant regarding burn injuries of Munu leads to only one conclusion that he alone was the perpetrator of crime. 11. There is also an evidence of oral dying declaration against the appellant. Tafiqul Ali (PW-1) is maternal uncle of Munu. He has testified that on being informed about the incident, he rushed to the house of appellant, where he found Munu in an unidentifiable condition because of burn injuries. On his asking, she told him that appellant had set fire on her after pouring kerosene. According to the evidence of Tafiqul Ali, at that time, appellant was also present inside the room of his house. This witness then says that Munu was taken to hospital in an Ambulance. As mentioned above, Abdul Rajak (PW-3) is father of Munu. He too has testified that on receiving telephonic information from Tofiqul Ali about Munu having been set on fire, he went to the house of appellant. There the family members of appellant told him that Munu had been taken to Golaghat Civil Hospital. He, therefore, rushed to the hospital and there, on his asking, Munu disclosed that appellant had first quarrelled and then set her on fire. Similar is the evidence of Robikul Ali (PW-6), who is son of Tofiqul Ali. According to him, on hearing commotion, he went to the house of appellant, where people said that appellant had set Munu on fire after pouring kerosene. He then met Munu who had burn injuries all over her face and body and on his asking, she disclosed about the incident. Nothing has been brought out in the cross examination of Tofiqul Ali (PW-1), Abdul Rajak (PW-3) and Robiqul Ali (PW-6) to discredit their evidence. 12. He then met Munu who had burn injuries all over her face and body and on his asking, she disclosed about the incident. Nothing has been brought out in the cross examination of Tofiqul Ali (PW-1), Abdul Rajak (PW-3) and Robiqul Ali (PW-6) to discredit their evidence. 12. Although, during investigation, Assistant Sub-Inspector Narendra Nath Gogoi recorded the statement of Munu exhibit 5 wherein she stated that appellant had set fire on her after pouring kerosene because she declined to bring money from her parental house, the prosecution has not proved the statement by examining Narendra Nath Gogoi. The prosecution did not prove the statement exhibit 5 from Lotifur Ali (PW-11) also before whom it was recorded. Instead, it has been proved by Sub Inspector Purna Jyoti Kalita (PW-10). Since the statement exhibit 5 was neither recorded by him nor it was recorded in his presence, we are unable to place reliance on it. 13. Sunu Begum (PW-4) is elder sister of Munu. She is also married to elder brother of the appellant. According to her evidence, she had gone for shopping in the market when Munu caught fire. She says that on her return, she saw Munu engulfed in fire outside her house and, therefore, cloth was wrapped around her body. This witness further says that she had no knowledge how Munu had caught fire. In the cross examination, she also stated that when she and appellant tried to save Munu, the appellant got burnt. Relying on this piece of evidence of Sunu Begum, learned counsel for the appellant submitted that appellant, in fact, tried to save Munu. But we are unable to accept this submission because Sunu Begum is wife of elder brother of appellant and, therefore, under family compulsion, she probably accepted the suggestion in her cross examination. And, as discussed above, the appellant himself, while being examined as an accused under Section 313 of the Code of Criminal Procedure, did not offer any explanation regarding his burn injuries and also the burn injuries of Munu. 14. For these reasons, we find no merit in the appeal. It is accordingly dismissed.