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2017 DIGILAW 246 (GAU)

Dayal Kurmi v. State of Assam

2017-02-23

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT & ORDER : Manojit Bhuyan, J. 1. The sole appellant Dayal Kurmi has been convicted under Section 302 of Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs. 1000/- with default stipulation for causing the death of his wife Kaushalya Kurmi. 2. According to the prosecution case, on 10.06.2012 at around 3 AM, the appellant set fire to his wife while she was sleeping. A bamboo stick wrapped with cloth at one end and immersed in kerosene oil was used for the purpose. The appellant ran away from the place of occurrence and was subsequently apprehended by villagers and then handed over to the police. 3. Ejahar (Ext.-2) was lodged by Biseswar Kurmi before the Bordubi Police Station, Tinsukia on 12.06.2012. Biseswar (PW-3) is the younger brother of the appellant. In the said ejahar PW-3 stated that his elder brother Dayal Kurmi set his own wife ablaze by pouring kerosene over her while she was sleeping on her bed and thereafter fled. Their only son Narayan Kurmi (PW-5) got alerted by the flame and his mother’s screams and along with the other family members could somehow save her from imminent death. She was taken to Tinsukia Civil Hospital by means of 108 Ambulance service and thereafter to AMCH Dibrugarh, where she was in critical state. The said ejahar was registered as Bordubi P.S. Case No. 38/2012 under Section 307 IPC. Prafulla Bora (PW-7) was entrusted with the preliminary investigation of the case. On receipt of the ejahar, he proceeded to the place of occurrence, although by that time the victim was at AMCH, Dibrugarh. Witnesses were examined and one bamboo stick wrapped with burn clothes at one end was seized vide Ext.1 Seizure List. Mat. Ext.1 was the bamboo stick seized by PW-7. The appellant Dayal Kurmi was apprehended by villagers and brought to the house whereupon he was taken into custody and forwarded to the Court. In the house of the victim he learnt that she has expired. Charge-sheet (Ext.5) was submitted against Dayal Kurmi under Section 302 IPC under the signature of one Moni Mohan Koch, the then Officer-In-charge of Bordubi Police Station, whose signature was proved by PW-7. The case was committed to trial and formal charge under Section 302 IPC was framed. 4. In the house of the victim he learnt that she has expired. Charge-sheet (Ext.5) was submitted against Dayal Kurmi under Section 302 IPC under the signature of one Moni Mohan Koch, the then Officer-In-charge of Bordubi Police Station, whose signature was proved by PW-7. The case was committed to trial and formal charge under Section 302 IPC was framed. 4. During the trial the prosecution examined as many as 8 (eight) witnesses including the Medical Officer who had conducted autopsy as well as Prafulla Bora who had carried out preliminary investigation. Out of the six non-official witnesses, save and except Biseswar Kurmi (PW-3), the rest turned hostile. The fact that Mat. Ext.1, being the lathi with burnt cloth wrapped around at one end, was seized from the place of occurrence, has come on record in the evidence of Md. Sultan Hussain (PW-2) and also in the evidence of Prafulla Bora (PW-7). The presence of the appellant in the house during the time of the incident have also come on record in the evidence of Bobita Kurmi (PW6), who is the daughter of the deceased. The fact that Dayal Kurmi was apprehended by the members of the Village Defence Party finds support from the queries posed by the Trial Court to Biseswar Kurmi (PW-3). As against question no. 2, he answered that one boy from their village saw his elder brother (Dayal Kurmi) staying in a ‘shani’ temple in Tinsukia and on being informed the VDP members of the village brought back Dayal Kurmi to the village whereupon police arrested him. This statement by PW3 operates as a strong circumstance to the fact that Dayal Kurmi fled from the scene of crime after the incident and was taking refuge in the ‘shani’ temple. 5. In the statement made by the appellant under Section 313 Cr.P.C., he claimed innocence and denied that he burnt his wife. He made no explanation whatsoever as to the circumstances leading to the death of his wife. 6. Dr. Kanbapu Choudhury (PW-8) deposed as the Medical Officer who had performed post-mortem examination on the deceased. He found burn injuries present all over the body except in the scalp, lower half of the anterior abdomen, palm and feet. In his opinion death resulted due to shock resulting from ante-mortem burn injury covering 85% of the total body surface area. Dr. Kanbapu Choudhury (PW-8) deposed as the Medical Officer who had performed post-mortem examination on the deceased. He found burn injuries present all over the body except in the scalp, lower half of the anterior abdomen, palm and feet. In his opinion death resulted due to shock resulting from ante-mortem burn injury covering 85% of the total body surface area. He also opined that since there was no injury on the palm, it was suggestive of homicidal burn injury. 7. The circumstances found established are in respect of the recovery of Mat. Ext.1 at the place of occurrence, the presence of the appellant in the house and that he was taking refuge elsewhere immediately after the incident. Further, that the deceased had suffered 85% burn injury which was ante-mortem and homicidal in nature have come in the evidence of Dr. Kanbapu Choudhury (PW-8). Against these circumstances, the appellant offered no explanation whatsoever in his statement under Section 313 Cr.P.C. 8. The argument advanced on behalf of the appellant is that in the absence of any eye-witness, the Trial Court erred in convicting the appellant under Section 302 IPC. In this respect, it would be apposite to refer to the case in Ganesh Lal v. State of Maharashtra, reported in (1992) 3SCC 106. In the said case the accused was prosecuted for the murder of his wife which had taken place inside his house. The Apex Court observed that when death occurs in the custody of the 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 the prime accused in the commission of murder of his wife. 9. In Trimukh Maroti Kirkan v. State of Maharashtra, reported in (2006) 10 SCC 681 , the Apex Court reiterated 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 Apex Court 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 the crime. This principle also found approval in the case of Gajanan Dashrath Kharate v. State of Maharashtra, reported in (2016) 4 SCC 604 . 10. In another case i.e. State of Rajasthan v. Kashi Ram, reported in AIR 2007 SC 144, the Apex Court 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. 11. As stated above, in the present case no explanation was forthcoming from the appellant. The principles laid down by the Apex Court in the aforementioned decisions squarely applies in the present case establishing the guilt of the appellant. There is no dispute that Kaushalya Kurmi suffered homicidal death in the dwelling house where the husband i.e. the appellant normally resided. Alibi is not pleaded by the appellant to prove his innocence. The offence took place inside their residence where a lathi with burnt clothes wrapped around at one end was recovered and seized. The circumstances appearing in the case leads to the only conclusion that the appellant alone was the perpetrator of the crime. Furthermore, the appellant did not examine any person that he was in fact elsewhere or at the ‘shani’ temple when the incident took place in the wee hours of the fateful day. 12. Having regard to the above, we find no good ground to interfere with the conviction and sentence imposed upon the appellant by the Trial Court. Accordingly, this appeal being devoid of merit, stands accordingly dismissed.