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2017 DIGILAW 99 (GAU)

Gomiya Kumar v. State of Assam

2017-01-23

AJIT SINGH, SUMAN SHYAM

body2017
JUDGMENT & ORDER : Suman Shyam, J. Heard Mr. P. Kataki, learned counsel for the appellant. Also heard Mr. Kumud Konwar, learned Additional Public Prosecutor, Assam appearing for the State. 2. This appeal has been preferred by the sole appellant, Sri Gomiya Kumar, against the judgment and order dated 12.05.2014 passed by the learned Additional Sessions Judge, Sonitpur, Tezpur, in connection with Sessions Case No.76/2010 convicting the appellant under Section 302 of the Indian Penal Code (IPC) for committing the murder of his wife Smt. Tara Kumar and sentencing him to undergo rigorous imprisonment for life and also to pay a fine of Rs.10,000/-. 3. The prosecution case, in brief, is that the appellant had got married to the victim about three years ago, but he used to regularly torture her and had inflicted physical injury upon his wife Tara Kumar which had led to her death on 11.03.2010 in the house of the appellant. 4. On 12.03.2010 the brother of the deceased, Sri Raj Kumar (PW 2), lodged an F.I.R. with the Rangapara Police Station, Sonitpur (Assam) reporting the incident of death of his younger sister. On the basis of the said F.I.R. a police case being Rangapara Police Station Case No.36/2010 under Section 302 of the Indian Penal Code was registered and investigation was started by the police. On completion of the investigation charge-sheet was filed against the appellant under Section 302 of the Indian Penal Code and the matter was put up for trial. 5. During the course of trial, the prosecution side had examined as many as seven (7) witnesses. However, the appellant did not adduce any evidence. 6. PW 1, Dr. Dibakar Saikia, had conducted the post mortem examination on the dead body. According to the PW-1, the cause of death is due to asphyxia as a result of throttling. As per the post mortem report, the face of the dead body was found to be congested and bluish in colour with blood stains, frothy secretion coming out from mouth and nostrils. Brown coloured oval shaped bruise and abrasion in front and right side of the middle of the neck of the size about 4 cm x 2 cm with irregular margins were also seen. On dissection, collection of clotted blood was seen in between muscles and soft tissues of the neck just below bruised area. Brown coloured oval shaped bruise and abrasion in front and right side of the middle of the neck of the size about 4 cm x 2 cm with irregular margins were also seen. On dissection, collection of clotted blood was seen in between muscles and soft tissues of the neck just below bruised area. Small vessels with muscle fibres were lacerated in the area. The witness (PW 1) Dr. Dibkar Saikia had also proved the post mortem report as Exhibit-1. During cross-examination, no suggestion was made by the defense side challenging the correctness of the entries made in the post mortem report or the inference thereof. 7. Sri Raj Kumar (PW 2) had deposed on oath stating that his sister i.e. the victim had informed him over telephone on the previous day that the appellant had assaulted her and thereafter the next night the witness was informed by his elder brother Lalu Kumar that his sister Tara Kumar has been killed. Then he went to the house of his brother-in-law and saw the dead body of his sister lying there with blood oozing out from her mouth. The witness further deposed that he went to the Rangapara Police Station and filed the ejahar which is exhibited as Exhibit-2. During cross-examination the witness had denied the suggestion that the appellant had not killed his sister. 8. Smti. Sukhi Kumar (PW 3) is the mother of the deceased who had deposed that her daughter got married to the accused about three years ago and they had a female child born out of their wedlock. PW 3 further stated that one day prior to the incident she had gone to the residence of the appellant and stayed there. On that day she had noticed that the appellant had assaulted her daughter by a stool (pira) as a result of which Tara was bleeding from the mouth and later on she died. According to PW- 3, after the death of her daughter, she again went to the residence of the appellant and saw the dead body with blood oozing out from her mouth an also water coming out from her nostrils. 9. Sri Sadhan Tanti (PW 4) stated that deceased Tara Kumar was the daughter of his brother’s friend. According to PW- 3, after the death of her daughter, she again went to the residence of the appellant and saw the dead body with blood oozing out from her mouth an also water coming out from her nostrils. 9. Sri Sadhan Tanti (PW 4) stated that deceased Tara Kumar was the daughter of his brother’s friend. This witness deposed before the Court that having come to know about the death of the deceased when he went to the residence of the appellant he found that the victim Tara was lying dead on the bed. This witness had stated that there was no injury seen on the person of Tara and that he had heard that the victim had committed suicide by hanging. The witness was, however, declared hostile. 10. Another witness Smt. Sumita Bhuyan (PW 5) had also categorically stated in her deposition that on hearing someone crying in the house of the appellant she went there and saw Tara was lying dead on the bed inside the house. 11. All the aforementioned witnesses have deposed corroborating the fact that the victim had died in the house of the appellant and the dead body was also seen to be lying on the bed with blood oozing out of the mouth and nostrils of the victim. The post mortem report also confirms the fact that there were injury marks in the neck and the opinion of the doctor is that the death has resulted from asphyxia due to throttling. Although there is no eye-witness to the incident leading the death of the victim, yet, circumstantial evidence brought on record establishes beyond doubt not only the fact that the appellant was having a strained relationship with his deceased wife Tara but also the fact that the deceased had died inside the house of the appellant. The post mortem report also established the fact that it was a clear case of homicidal death. 12. The post mortem report also established the fact that it was a clear case of homicidal death. 12. In the case of Trimukh Maroti Kirkan vs. State of Maharashtra, reported in (2006) 10 SCC 681 the Hon’ble Supreme Court has held that where an accused 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 the crime they were seen together or the offence takes place in the dwelling home where the husband also normally reside, if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In the said decision, the Supreme Court has further observed that in cases of such nature the initial burden of the prosecution to establish the case would undoubtedly be there but such burden is of a comparatively lighter character. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed and the inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all of an accused to offer explanation. 13. Evidence on record suggests that the appellant was living with the deceased and their minor child and the deceased was last seen together with the appellant at their dwelling house. Since, the deceased had died in the dwelling house of the appellant under suspicious circumstances, hence, it was incumbent upon the appellant to explain as to how the death had occurred. However, from a scrutiny of the materials available on record we find that not to speak of leading any evidence in his defense, the appellant has even failed to offer any satisfactory explanation as to how his wife had died. 14. However, from a scrutiny of the materials available on record we find that not to speak of leading any evidence in his defense, the appellant has even failed to offer any satisfactory explanation as to how his wife had died. 14. In the above context, it would e significant to note herein that immediately after the incident had occurred, the appellant had taken a stand that the deceased had died by falling on the ground and the said position is also reflected in the charge-sheet dated 31.03.2010 filed in connection with the aforementioned case. However, during the examination of the accused under Section 313 of the Code of Criminal Procedure (Cr.P.C) the appellant had stated that he was not at home at the time of the incident and later on upon returning home he saw that the victim had committed suicide. The appellant had also stated that he found the deceased hanging from a bamboo by means of a wearing cloth inside the house and that the victim had received injuries on her body when the people tried to save her by messaging oil on her body. 15. From an examination of the above statements of the appellant it is evident that the appellant has been shifting his version regarding the cause of death of his wife, which is strongly suggestive of the fact that he was trying to conceal the truth. It would be worth mentioning herein although the appellant had stated that the deceased had committed suicide by hanging from a bamboo by means of her cloth, yet, there is nothing on record to substantiate the said fact. The police report also does not indicate the existence of any material leading to the conclusion that the victim had committed suicide. Not only that, during cross-examination of the prosecution witnesses, no suggestion was even made to the witnesses regarding any tendency or previous attempt made by the victim to commit suicide. That apart, there is no explanation whatsoever, as to how the victim could be found in a condition where blood was oozing out of her nose and mouth. Having regard to the nature of injuries mentioned in the post mortem report, the learned counsel for the appellant also could not give any convincing reply as to how the deceased could have received such grievous injuries while being massaged with oil. Having regard to the nature of injuries mentioned in the post mortem report, the learned counsel for the appellant also could not give any convincing reply as to how the deceased could have received such grievous injuries while being massaged with oil. Applying the ratio of the decision rendered in Trimukh Maroti Kirkan (Supra) to the facts of this case, we are, therefore, of the un-hesitant view that there was a burden cast upon the appellant under section 106 of the Evidence Act to lead evidence to establish his innocence regarding the death of his wife which burden the appellant has failed to discharge. 16. Although the appellant had filed I.A.(Crl.) No.509/2016 under Section 391(1) of the Code of Criminal Procedure seeking leave of this Court to adduce further evidence, we are of the view that the appellant cannot be permitted to cover up the lacunae on his part and projected a new case at this belated stage by adducing fresh evidence, moreso, when the appellant has failed to give a consistent and plausible explanation regarding the cause of death of his wife. Therefore, the prayer for adducing additional evidence stands rejected. 17. For the reasons stated above, we are of the view that the prosecution side had succeeded in establishing the charge brought against the appellant beyond all reasonable doubt by leading cogent evidence on record. We, therefore, see no good reason to interfere with the conviction and the sentence awarded by the learned trial Court upon the appellant under section 302 of the IPC for committing murder of his wife Tara Kumar. 18. In the result, this appeal is held to be devoid of any merit and the same is accordingly dismissed.