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2018 DIGILAW 1587 (GAU)

Masi Hemram v. State of Assam

2018-11-08

HITESH KUMAR SARMA, MIR ALFAZ ALI

body2018
JUDGMENT & ORDER : H.K. Sarma, J. This Criminal Appeal (J) 10/2016 has been preferred by appellant Sri Masi Hemram, against the judgment, dated 18.11.2015, passed by learned Sessions Judge, Lakhimpur, North Lakhimpur, in Sessions Case No. 193(NL)/2013 convicting the appellant for offence under Section 302 of Indian Penal Code and sentencing him to undergo rigorous imprisonment for life with payment of fine of Rs 5,000/-, in default, to suffer further rigorous imprisonment for 6 (six) months. 2. The prosecution case is that, in the night of 08.08.2013, the appellant committed murder of his wife in his house. The deceased, Rukmini Hemram was the sister of the informant (PW1). On receipt of the information, on the next day, i.e., on 09.08.2013, the informant (PW1) went to the place of occurrence and found the deceased lying dead inside a room of the house of the accused-appellant. The informant also got information from his nephew that in the previous night there took place a quarrel between his parents. However, on 09.08.2013, at about 9:15 a.m. the PW6 informed police that a woman was murdered by a man in his house at Seajuli Tinali. The PW7/Investigating Police Officer of Boginadi Police Station entered the information in the General Diary, vide Ext-3, and initiated the investigation of the case, before receipt of the formal FIR, on the same day, i.e., on 09.08.2013. 3. On receipt of the FIR, the Boginadi Police Station registered a case, being No. 88/2013, under Section 302 of the IPC, investigated into it, collected evidence, got inquest of the dead body as well as post-mortem examination done, arrested the accused on his surrender in the police station. Also recovered the weapon, used in the offence, on the basis of the disclosure statement and on being led by the appellant. Finally, on completion of the investigation, the Investigating Officer laid the charge-sheet against the appellant under Section 302 of the IPC. 4. On receipt of the case, on being committed by the learned Judicial Magistrate First Class, after observing the required formalities, the learned Sessions Judge framed a formal charge against the appellant under Section 302 of the IPC to which the appellant pleaded innocence. Therefore, the trial commenced. 5. To prove the charge against the appellant, the prosecution examined as many as 7 (seven) witnesses, who are, except PW3, examined in cross by the defence. Therefore, the trial commenced. 5. To prove the charge against the appellant, the prosecution examined as many as 7 (seven) witnesses, who are, except PW3, examined in cross by the defence. In his statement recorded under Section 313 of the Cr.PC, after closure of the prosecution evidence, the appellant is heard denying the accusation made against him. The defence also declined to adduce any evidence. 6. We have heard Mr. SK Agarwal, the learned Amicus Curiae, appearing for the appellant as well as Mr. NK Kalita, learned Additional Public Prosecutor, appearing for the State respondent No. 1. 7. We have also perused the record of the learned trial court including the evidence as well as the impugned judgment. 8. The PW1 is the informant. His evidence is that while, at about 9:00 am, he came home back from his work place, the tea garden factory, for taking tea, he came to know from one Ashamoni (not examined as witness by the prosecution) that the appellant killed his wife Rukmini. He, then, went to the house of the appellant only to find that the deceased Rukmini was lying dead in the cow-shed with cut injuries on her neck. He immediately informed the village headman about the occurrence, and thereafter, lodged the FIR, vide Ext-5. 9. The evidence of the PW2, who is the elder brother of the appellant, is that, on the following day of the date of occurrence, the 8 years old son and the 5 years old daughter of the appellant went to his house and informed that their parents got engaged in a quarrel the previous night and since then, both were missing. Then, he went to the house of the appellant only to find that the deceased/wife of appellant was lying dead in their house. He also observed cut injury over the neck of the deceased. Then, PW1 and he himself informed the police about the occurrence. 10. The evidence of PW3 is that she had seen the dead body in the house of the appellant. She is found to have not stated anything, even remotely, implicating the appellant, and therefore, her evidence is of no bearing so far the decision of this appeal is concerned. 11. 10. The evidence of PW3 is that she had seen the dead body in the house of the appellant. She is found to have not stated anything, even remotely, implicating the appellant, and therefore, her evidence is of no bearing so far the decision of this appeal is concerned. 11. The evidence of PW4 is that, on the next day of the date of occurrence, at about 10:00 am, while he was coming back from Seajuli tea estate, he got information that Rukmini Hemram was lying dead. He went to her house along with PW6 and found that Rukmini Hemram was lying dead in the cow-shed of their house. He also noticed cut injury over the neck of the deceased. The appellant was not available there. Police came to the place of occurrence and did inquest over the dead body, vide Ext-1, which he witnessed, vide Ext-1(1). 12. The PW6 is heard saying, in his evidence, that on receipt of the information from one Chamoni Munda (not examined as witness by the prosecution) to the effect that her elder sister Rukmini expired. He went to the house of the appellant and found that Rukmini, the wife of the appellant, was lying dead inside the house. He informed the Officer-in-Charge of Boginadi Police Station about the occurrence, over phone; police came to the place of occurrence, broke the bamboo wall of the house and brought out the dead body as the door of the house was closed, with a rope, from inside the house. Police caused inquest of the dead body, vide Ext.1 in his presence and he witnessed the same vide Ext.1 (3). The appellant was not available in his house and he was evading arrest by police. 13. PW7 is the Investigating Police Officer. He is found narrating, in his evidence, the stages of the investigation from the receipt of the telephonic information about the occurrence, entering the same in the General Diary, visiting the place of occurrence, collecting evidence, causing inquest of the dead body as well as post-mortem examination done, surrendering of the appellant, on 11.08.2013, in the police station, his making of the statement disclosing the commission of the offence by him leading to the recovery of the weapon of offence, till laying of the charge-sheet. The disclosure statement of the appellant was recorded, vide Ext-8, and as led by him, the ‘khanti’ used in committing the offence was also recovered and seized from the back side of the house of the appellant, vide, Ext-6, in presence of witnesses. 14. PW5 is the Senior Medical & Health Officer, who performed the post-mortem examination of the dead body of the deceased on 09.08.2013. Ext.-2 is the post-mortem examination report. The findings recorded by the PW5, in the post-mortem examination report, are as follows:- “A female dead body of about 38 years of age. Rigor mortis present in upper and lower limb. The body was not decomposed. A cut injury in the left side of the neck below the left mandible. Size “6 X 3” X ½. All the descriptions given above are ante mortem in nature.” PW5 has also opined that the death is due to haemorrhage as a result of injury sustained by the deceased and that the injuries are sufficient to cause death of a person in the ordinary course. 15. Now, it appears from the evidence on record, as indicated above, that there is no eye witness to the occurrence. The learned trial court convicted the appellant on the basis of circumstantial evidence. The circumstances which the learned Sessions court relied upon are as follows:- i. The deceased was the wife of the accused person, ii. On the fateful night, the deceased and the accused had resided in the house of the accused, iii. There is absolutely no evidence, on record, to show that on the fateful night, any outsider, other than the accused and the deceased and their minor children, occupied the ill-fated house. iv. The deceased died due to haemorrhage as a result of the cut injury over her neck. v. The accused was not found available in the house on the following day of the date of occurrence. vi. The dead body of the deceased was found in the house of the accused with cut injury on her neck. vii. The accused surrendered before the police on 11.08.2013. viii. As per information given by the accused, the murder weapon was recovered from the backside of his house. vi. The dead body of the deceased was found in the house of the accused with cut injury on her neck. vii. The accused surrendered before the police on 11.08.2013. viii. As per information given by the accused, the murder weapon was recovered from the backside of his house. Apart from the above circumstances, the learned Sessions Judge also recorded the following observation in para 22 of the impugned judgment:- There is nothing on record to show that the wife of the accused was not in normal health till the time of her death. As such, how such a woman died homicidal death on the night in question despite the fact that she was in very normal health, which has not at all been explained by the accused. His inability to explain as to how his wife, who was in normal health till the time of her death, died all of a sudden coupled with his inability to explain the very incriminating circumstances despite he was given opportunity to explain those circumstances again come down heavily on the plea of innocence raised by the accused person. 16. As far as the circumstances, mentioned at Sl. Nos. 2 and 3 above, if both the circumstances are taken together, it would appear that the two minor children of the appellant were also staying in the house on the fateful night. But, there is no evidence that on the fateful night, the minor children were residing in their house with their parents, i.e., the appellant and the deceased. There is also no evidence at all to show that the appellant and his deceased wife were residing in the house on the fateful night. The minor children of the appellant are not examined by the prosecution to prove such facts. These two circumstances are not found to have been established by the evidence on record. There is also no evidence at all to show that the appellant and his deceased wife were residing in the house on the fateful night. The minor children of the appellant are not examined by the prosecution to prove such facts. These two circumstances are not found to have been established by the evidence on record. The circumstance that the dead body of the deceased was found in the house of the accused, with cut injury on her neck, itself cannot be said to be a circumstance that the accused-appellant had caused her death, particularly when the evidence of the Investigating Police Officer(PW7) and PW2 makes it clearly appear that the door of the house where the dead body was found was closed from inside with a rope for which the Investigating Police Officer had to cut the bamboo wall of the house and take out the dead body. Such evidence rather raises a doubt as to the person who had caused the death of the deceased. Such evidence, of the PW2 and PW7 speaks of a situation that if the appellant caused the death of the deceased, the door of the house could not have been closed from inside as the appellant was evidently out of his house. Therefore, one of the circumstances that the dead body of the deceased was found in the house of the accused with cut injury in her neck cannot be said to be a circumstance linking the accused with the commission of the alleged offence. On the other hand, the evidence of PW7 that pursuant to the confession made by the accused appellant in his statement, under Section 161 of the Cr.PC, disclosing the fact about the weapon used and the place where the weapon was kept after commission of the offence, appears to be not reliable and cannot be acted upon, in view of the law laid down in Ramkishan Mithanlal Sharma v. State of Bombay, reported in AIR 1955 SC 104 . 17. 17. Relying on the case of Kottaya v. Emperor, reported in A.I.R. 1947 P.C. 67 the Hon’ble Supreme Court in the case of Ramkishan Mithanlal Sharma (supra) held that Section 27 (of the Evidence Act) is an exception to the rules enacted in Sections 25 and 26 of the said Act which provide that no confession made to a police officer shall be proved as against a person accused of an offence and that no confession made by any person whilst he is in the custody of a police officer unless it is made in the immediate presence of a Magistrate, shall be proved as against such person. Where, however, any fact is discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, that part of the information as relates distinctly to the fact thereby discovered can be proved whether it amounts to a confession or not. The expression “whether it amounts to a confession or not” has been used in order to emphasise the position that even though it may amount to a confession that much information as relates distinctly to the fact thereby discovered can be proved against the accused. The section seems to be based on the view that if a fact is actually discovered in consequence of information given some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence. But, the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. 18. But, in the instant case, the PW7 deposed that the alleged confession was made before the Officer-in-Charge of the Police Station although the statement, under Section 161 of the Cr.PC, was recorded by himself which contained the alleged confession. The Officer-in- Charge of the Police Station has not been examined by the prosecution in this case, and therefore, whether the alleged confession, with the disclosure was made to him by the accused-appellant or not could not be ascertained from him. The Officer-in- Charge of the Police Station has not been examined by the prosecution in this case, and therefore, whether the alleged confession, with the disclosure was made to him by the accused-appellant or not could not be ascertained from him. On the other hand, although the PW7 deposed that pursuant to the disclosure statement, made under Section 161 of the Cr.PC, vide Ext.-8, the weapon of offence was recovered yet on perusal of the seizure list, Ext- 6, it appears that the seized weapon was recovered from the house of the accused-appellant and not from the field backside his house, as allegedly stated in his statement in Ext.-8. Therefore, the evidence as regard the recovery of the weapon of the offence, pursuant to the alleged disclosure statement made by the accused-appellant cannot be said to have satisfied the mandate of Section 27 of the Indian Evidence Act, in view of Ramkishan Mithanlal Sharma (supra). Accordingly, one of the circumstances that the murder weapon was recovered as per information given by the accused-appellant has not been established, in view of the evidence discussed above. The weapon used in commission of the offence was seized, vide Ext.-6 in presence of witnesses, Raghu Hemram and Soma Hemram. But, this Raghu Hemram is examined by prosecution as PW6 although the Ext.-6 was not produced by the prosecution, during his evidence, to find out whether the seized weapon was seized in his presence. His signature, as witness, in Ext.-6, vide Ext.-6(4) was exhibited by the PW7, which creates doubt about the reliability of the evidence of PW7 on this count. On the other hand, the other witness to the seizure, Soma Hemram, has not been examined by the prosecution without there being any explanation to that effect and her signature is also exhibited by the Investigating Police Officer. Therefore, such evidence, as regard witnessing of the seizure by the PW6 and another witness, cannot be said to have been proved. On the other hand, on perusal of the contents of Ext.-6, it is found that the weapon of offence, i.e., the ‘khanti’ was seized from the house of the appellant whereas the PW7 himself deposed, in his evidence, that the weapon was seized from a field backside the house of the appellant. Such evidence of PW7 is very much contradictory raising doubt about the seizure of the weapon of the offence. Such evidence of PW7 is very much contradictory raising doubt about the seizure of the weapon of the offence. That apart, the circumstance, that the accused-appellant was absconding immediately after the offence and has surrendered after 2 (two) days in the police station do not constitute a chain unerringly pointing to the guilt of the appellant. 19. In the case of Jaharlal Das –vs- State of Orissa, reported in (1991) 3 SCC 27 , the Hon’ble Supreme Court reiterated the principles of circumstantial evidence as follows:- (i). the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii). those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii). the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should be incapable of explanation of any other hypothesis than that of the guilt of the accused. 20. As discussed above, the prosecution has not been able to establish the circumstances not to speak of the chain of circumstances. The circumstances, mentioned in the judgment of the learned trial court, are not circumstances proved against the accused-appellant and they also do not constitute a chain unerringly pointing to the guilt of the appellant. 21. In view of the law laid down in Jaharlal Das (supra), this court is of the view that none of the requirements of proving a case, by prosecution, on the basis of circumstantial evidence, has been established in this case, and therefore, the accused-appellant cannot be held guilty on the basis of such circumstantial evidence. 22. In para 22 of the judgment of the learned trial court, as quoted above, relates to an observation in respect of the role of the appellant that he did not disclose as to how the deceased died. Such view taken by the learned trial court appears to be completely opposed to the cardinal principle of criminal jurisprudence that the burden of proof in a criminal trial is always upon the prosecution. But, from the observation, made by the learned trial court, it appears that the burden has been shifted upon the appellant to prove that he has not committed the offence. But, from the observation, made by the learned trial court, it appears that the burden has been shifted upon the appellant to prove that he has not committed the offence. But, it was necessary only when the prosecution could prove the charge against the appellant. 23. So, in view of the above discussions above, and the findings recorded therein, this court is of the view that the decision rendered by the learned trial court, vide the impugned judgment, is based on improper and incorrect appreciation of evidence on record, requiring interference of this court in exercise of its appellate jurisdiction. 24. Accordingly, this criminal jail appeal stands allowed. The appellant be released forthwith, if not required in any other case. 25. Send down the LCR with a copy of this judgment. 26. This Court appreciates the assistance rendered by the learned Amicus Curiae and directs that an amount of Rs 7,500/- be paid to the learned Amicus Curiae as honorarium for the assistance rendered by him.