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2017 DIGILAW 1563 (GAU)

Bhupen Barman v. State of Assam

2017-12-21

HITESH KUMAR SARMA, HRISHIKESH ROY

body2017
JUDGMENT : HRISHIKESH ROY, J. This Appeal from jail is presented against the judgment dated 23.12.2013 in Sessions Case No. 55/2013 (G.R. Case No. 1544/2012) rendered by the learned Sessions Judge, Barpeta, whereby, the accused/appellant was convicted under section 302 of IPC and was sentenced to undergo imprisonment for life and also to pay a fine of Rs. 3,000 and in default of fine, further R.I. for 3 months. 2. Heard Mr. B.N. Gogoi, learned amicus curiae on behalf of the appellant and Ms. B. Bhuyan the learned Addl. Public Prosecutor. 3. The prosecution case as revealed from the FIR dated 19.6.2012 lodged by the informant Anjali Deb Nath (PW1) with the O.C. of the Gobardhana Police Station reflects that her daughter Palani Deb Nath was given marriage to the accused Bhupen Biswas@Bhupen Barman. The informant's daughter used to work in the hotel of one Prakash Saha (PW-6) and used to frequently meet her mother (PW1). At the relevant period when the mother did not meet her daughter and had no information about her whereabouts and the employees at the workplace were discussing about the missing employee in her presence, a neighbourhood lady Gauri told her that her daughter had gone to Cooch Behar with the accused and so the PW1 did not bother immediately. However since the mother did not receive any information on the whereabouts for several days, on 17.6.2012 in the evening at around 5.00 p.m. she went to her daughter's house and found the house under lock and key. She also found bad smell coming from that house. On suspicion she peeped through the gap of the bamboo wall and saw the dead body of her daughter with both hands tied up, lying on the bed and her feet were touching the floor of the house. The mother immediately informed the neighbouring people. The police were informed about the incident and the police along with Magistrate came to the house. They broke open the lock of the house and brought out the dead body. The PW1 saw cut mark injuries on the dead body of the daughter during the inquest. The accused Bhupen Biswas @ Bhupen Barman was absconding and was arrested later in a theft case and he confessed to the police about the killing. 4. They broke open the lock of the house and brought out the dead body. The PW1 saw cut mark injuries on the dead body of the daughter during the inquest. The accused Bhupen Biswas @ Bhupen Barman was absconding and was arrested later in a theft case and he confessed to the police about the killing. 4. On receipt of the FIR the Officer in-charge registered a case being Gobardhana P.S. Case No. 55/2012 under section 302, IPC and endorsed the case for investigation to Prabin Bharali. The I.O. visited the place of occurrence, broke the lock of the door and found the dead body with sharp cutting injury marks. The PW10 recorded the statement of the witnesses under section 161, Cr.PC, conducted inquest over dead body and then sent the dead body for post mortem examination. The I.O. seized one bloodstained dao and handle of a tube well from the place of occurrence and those are shown in the Seizure List (Ext. 5). But in his cross-examination, the PW10 admitted that he did not send the seized articles for forensic examination. On conclusion of investigation the accused was charge sheeted under section 302 of IPC to face trial. Accordingly formal charge under the said section was framed and the same on being read over and explained to the accused, he pleaded not guilty and claimed to stand trial. 5. During the trial, 12 witnesses were presented by the prosecution while defence produced none. 6. The mother Anjali Deb Nath (PW1) testified that the victim is her daughter and the accused is her son-in-law. The couple resided at a distance of 300 cubits and the victim used to frequently visit her mother. As the victim did not visit her for 4/5 days, the mother went to her house to enquire and found the house locked. She returned back when a neighbor Gauri told that her daughter has gone to Cooch Behar with the accused. When the dead body was recovered she found 3/4 cut mark injuries and stated that the accused used to torture his wife regularly in drunken condition. She also stated that when the accused was arrested in a theft case, he confessed his guilt and stated that he killed his wife. 7. The PW2 Dr. When the dead body was recovered she found 3/4 cut mark injuries and stated that the accused used to torture his wife regularly in drunken condition. She also stated that when the accused was arrested in a theft case, he confessed his guilt and stated that he killed his wife. 7. The PW2 Dr. Putul Mahanta conducted post mortem examination on the dead body of the deceased Palani Deb Nath at GMC on 19.6.2012 and found as follows: “…. External appearance: Case property found packed with plastic bag. A female dead body, average built stage of decomposition. Rigor mortis passed off. Mouth open, eyes open, peeling off skin present. Lower legs found partly skeletonized. Scalp, skull, vertebrae — Health. Membrane — Decomposed. Spinal Cord not examined. Thorax: Walls, ribs and cartilages : All healthy. Pleurae — Decomposed. Larynx and trachea — Decomposed. Both lungs — Decomposed, Pericardium — Decomposed. Heart — Empty, healthy. Vessels — Decomposed. Abdomen: Peeling of skin present over the wall. Pericardium-Decomposed. Mouth, pharynx, esophagus — Decomposed. Stomach and its contents — empty health. Small intestine and its contents and Large intestine and its contents — Decomposed. Liver, Spleen, Kidneys: In a state of decomposition. Bladder — Decomposed. Organs of generation, externa and internal: Uterus — empty. Others — Decomposed. Broad, faint ligature mark found around the neck above the cartilage. The ligature mark is continuous with a knot on right side below the ear. Neck tissues healthy with nail scratch abrasions at places. Opinion — Death was due to asphyxia as a result of injuries ligature strangulation. All the injuries were ante mortem and caused by blunt force impact and it is homicidal in nature …………” 8. The PW3, Santosh Debnath was a neighbour and was present when the dead body was brought out by the police from the locked house and he was an inquest witness. 9. Asrabi Saini (PW.4) was the witness to the seizure of a Dao and tube well handle by the police. 10. The PW5 Hironmoyee Das stated about the regular quarrel between the victim and the accused and because of the constant quarrel, they were driven out from the earlier rented house. The witness did not know who killed Palani, but suspected that the accused might have killed her. 11. As can be seen from the evidence on record that there is no eye witness to the incident. The witness did not know who killed Palani, but suspected that the accused might have killed her. 11. As can be seen from the evidence on record that there is no eye witness to the incident. But the evidence of Doctor, who conducted the autopsy indicates that the death was due to asphyxia as a result of strangulation and injuries caused by blunt forced impact. The trial court noted the circumstances which have been proved, i.e., (i) the death was homicidal; (ii) the deceased and the accused only resided in the locked house; (iii) the accused was found absconding; and (iv) the accused gave no plausible explanation for the cause of death in his statement under section 313 of Cr.PC. The trial court based its judgment by linking the circumstances of the accused and the victim being last seen together in their house. In his statement under section 313, Cr.PC, the accused pleaded his innocence and stated that he was away from home in search of work. 12. The conviction by the trial court is based entirely on circumstantial evidences. In the absence of direct evidence, the law is well settled that all circumstances so established should be consistent only with the hypothesis of the guilt of the accused. Again, circumstances should be of conclusive nature and they must exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused — see Hanumant Govind Nargundkar v. State of Madhya Pradesh, AIR 1952 SC 343 . 13. The relevant circumstances in this case is that the dead body of the victim was discovered in the locked house where the accused and the victim resided. The next important circumstance is that accused was found absent and the 3rd circumstance is the purported failure of the accused to explain to cause of death in the statement made under section 313 of Cr.PC. The next important circumstance is that accused was found absent and the 3rd circumstance is the purported failure of the accused to explain to cause of death in the statement made under section 313 of Cr.PC. On his absence and the dead body of the wife being discovered in the locked house, the accused claimed innocence and stated that he went to other place in search of work and he denied any knowledge on how his wife was killed. Most significantly, no evidence is available which establishes that the deceased was last seen alive in the company of the accused and the adverse presumption is drawn only on the basis that she was murdered in her own house. Therefore, the last seen together theory in the present case is inapplicable, as no evidence is laid to show that the victim was seen alive last, in the company of the accused. 14. It is also important to note that when the accused was examined by the court under section 313 of the Cr.PC, the circumstances relied upon by the prosecution to prove the guilt was not brought to the notice of the accused. This section imposes a heavy duty on the court to ensure that the incriminating circumstances are put to the accused and his response on those is solicited. The Supreme Court in State of Maharashtra v. Sukhdev Singh, (1992) 3 SCC 700 on the Trial Court's responsibility declared as follows: “……… Section 313 of the Code is a statutory provision and embodies the fundamental principle of fairness based on the maxim audi alteram partem. It is trite law that the attention of the accused must be specifically invited to inculpatory pieces of evidence or circumstances laid on record with a view to giving him an opportunity to offer an explanation if he chooses to do so. The section imposes a heavy duty on the court to take great care to ensure that the incriminating circumstances are put to the accused and his response solicited. The words ‘shall question him’ clearly bring out the mandatory character of the clause and cast an imperative duty on the court and confer a corresponding right on the accused to an opportunity to offer his explanation for such incriminating material appearing against him. The words ‘shall question him’ clearly bring out the mandatory character of the clause and cast an imperative duty on the court and confer a corresponding right on the accused to an opportunity to offer his explanation for such incriminating material appearing against him. It is, therefore, true that the purpose of the examination of the accused under section 313 is to give the accused an opportunity to explain the incriminating material which has surfaced on record. The state of examination of the accused under clause (b) of sub-section (1) of section 313 reaches only after the witnesses for the prosecution have been examined and before the accused is called on to enter upon his defence. At the stage of closure of the prosecution evidence and before recording of statement under section 313, the learned Judge is not expected to evaluate the evidence for the purpose of deciding whether or not he should question the accused. After the section 313 stage is over he has to hear the oral submissions of counsel on the evidence adduced before pronouncing on the evidence. The learned trial Judge is not expected before the examines the accused under section 313 of the Code, to sift the evidence and pronounce on whether or not he would accept the evidence regarding any incriminating material to determine whether or not to examine the accused on that material. To do so would be to pre-judge the evidence without hearing the prosecution under section 314 of the Code. Therefore, no matter how weak or scanty the prosecution evidence is in regard to a certain incriminating material, it is the duty of the court to examine the accused and seek his explanation thereon. It is only after that stage is over that the oral arguments have to be heard before the judgment is rendered. It is only where the court finds that no incriminating material has surfaced that the accused may not be examined under section 313 of the Code. If there is material against the accused he must be examined. In the instant case it is not correct to say that no incriminating material had surfaced against the accused, particularly accused No. 5, and, hence, the learned trial Judge was not justified in examining the accused under section 313 of the Code ………” 15. If there is material against the accused he must be examined. In the instant case it is not correct to say that no incriminating material had surfaced against the accused, particularly accused No. 5, and, hence, the learned trial Judge was not justified in examining the accused under section 313 of the Code ………” 15. When we examine the evidence in the present case on the above principle, it is apparent that none of the incriminating circumstances were put to the accused to allow him the opportunity to offer his explanation for those incriminating material appearing against him. Therefore, without drawing the attention of the accused to the inculpatory pieces of circumstances, the court could not have reached its conclusion on those circumstantial evidences. The conviction of the accused is based on inculpatory circumstances which were never put across to the accused by the court. Therefore, there appears to be a failure of the duty cast on the court to put to the accused all the material circumstances. On account of such failure, the legal conclusion in favour of the accused must be drawn by us. 16. The omission on the part of the court to question the accused on the incriminating circumstances would not automatically vitiate the trial but the omission must result in prejudice as well as miscarriage of justice for the accused. This is not a case of some minor omission in adherence to the section 313 requirement but the entire set of circumstances which according to the prosecution, unerringly point to the guilt of the accused, was not put across to the accused during his examination by the court. In our understanding, such omission has caused real prejudice to the accused and on this basis we hold that his conviction on the basis of those circumstantial evidence, cannot be sustained. 17. It is also relevant to observe here that even if the entire circumstances are taken into account, the guilt of the accused is not established beyond reasonable doubt as the circumstances do not lead to the conclusion which is consistent only with a guilty verdict. Therefore, even on the merit of the circumstances of the case, the appeal deserves to be succeeded. 18. Therefore, even on the merit of the circumstances of the case, the appeal deserves to be succeeded. 18. It is also important to note that while there is some evidence to show that the accused quarrelled with his wife, no evidence is laid that the cruelty suffered by the victim was relatable to any demand of dowry. Therefore, although it is a case of unnatural death within 7 years of marriage, the provision of section 304B of the IPC is not attracted and the burden to prove his innocence, does not shift to the accused. 19. In view of the foregoing discussion, we are of the considered opinion that the conviction under the impugned judgment on the basis of the circumstantial evidence cannot be sustained and the same is, thus, set aside and the appeal stand allowed accordingly. The appellant be released forthwith. 20. Before parting, we place on record our appreciation of the service rendered by Mr. B.N. Gogoi, the learned amicus curiae, who shall be entitled to the fee of Rs. 7,000. Send down the LCR, with a copy of this judgment.