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2018 DIGILAW 1592 (GAU)

Sunia Boraik @ Proja Kisko v. State of Assam

2018-11-09

HITESH KUMAR SARMA, MIR ALFAZ ALI

body2018
JUDGMENT & ORDER : M.A. Ali, J. We have heard Mr. R.M. Choudhury, learned amicus curiae for the appellant in Crl. A. 35/2016 and Mr. I.A. Hazarika, learned amicus curiae for the appellant in Crl. A. 36/2016 and Mr. M. Phukan, learned Addl. P.P., Assam for the State, who have also taken us through the evidence and materials available on record. 2. Both the appeals having arisen out of the common judgment and order dated 22.03.2016 passed by the learned Sessions Judge, Dibrugarh in Sessions Case No. 54/2014 are taken together for hearing and disposal. 3. Both the appellants were convicted by the learned Sessions Judge under Section 302 IPC R/W Section 34 IPC and sentenced to rigorous imprisonment for life and fine of Rs. 5,000/- with default stipulation. 4. As per the prosecution case, the deceased Bai Orang was the first wife of the appellant Bobo Kisko and the appellant Proja Kisko @ Sunia Boraik is the second wife of the appellant Bobo Kisko. On 13.01.2013 at about 7 O’clock in the evening, both the appellants killed the victim by strangulation. Budhua Orang (PW-1) lodged the FIR (Ext.4), on the basis of whch Tingkhong P.S. Case No. 16/2013 was registered. During investigation, S.I. Mohan Sena Sinha prepared the inquest report (Ext.1) and Dr. Subhajyoti Deka (PW-7) conducted autopsy on the body of the victim. 5. PW-7, the doctor, who conducted the postmortem examination on the body of the deceased found the following injuries : “1. Abrasion 3 cm x 2 cm on the back of the left elbow; 2. Abrasion 1.5 cm x 1 cm and 1 cm x .8 cm, .7 cm apart present on the back of the right shoulder; 3. One crecentic nail mark with concavity downward present on the right cheek 1.2 cm x .3 cm. On examination of the neck: One continuous horizontal ligature mark 36 cm x .5 cm present on the neck which is completely encircling the neck and at the level of thyroid cartilage. The ligature mark process behind the neck with a contusion on the back of the neck 4 cm x 3 cm, congestion and petechial hemorrhage present on the margin of the neck. The ligature mark is dark, hard and brownish in colour. On dissection, tissues underlined the ligature mark found contused.” 6. The ligature mark process behind the neck with a contusion on the back of the neck 4 cm x 3 cm, congestion and petechial hemorrhage present on the margin of the neck. The ligature mark is dark, hard and brownish in colour. On dissection, tissues underlined the ligature mark found contused.” 6. In the opinion of the doctor, cause of death was asphyxia resulting from antemortem strangulation by ligature and homicidal in nature. Approximate time since death 12-24 hours. 7. On completion of investigation, charge sheet was laid against both the appellants under Section 302 IPC R/W Section 34 IPC. Prosecution examined 10 witnesses to bring home the charge and on appreciation of the evidence and materials brought on record, learned trial court convicted the appellants under Section 302 IPC R/W Section 34 IPC and awarded sentence as indicated above. 8. The materials on record and the impugned judgment transpire that there was no eye witness and the learned trial court recorded the conviction and sentence of the appellants essentially relying on circumstantial evidence. The circumstances, which were relied by the learned trial court has been enumerated in paragraph-16 of the impugned judgment as under : “16. The circumstance proved against the accused may be summarized as follows : (i) The deceased and the accused persons were the only people present in the house of the accused at the relevant time; (ii) The deceased died of strangulation by ligature inside the house of the accused; (iii) A plastic rope was recovered from the house of the accused by the Investigating Officer; (iv) The motive is also established; (v) The accused persons made false statements regarding the cause of death of the deceased in their defence statements, which itself is a link in the chain of circumstances.” 9. It is the settled principle that in order to prove a charge in a criminal trial by circumstantial evidence, prosecution needs to prove each and every circumstance solidly beyond all reasonable doubt and the circumstances must be in such a chain, which unerringly leads to the conclusion, consistent only with the hypothesis of the guilt of the accused. The Apex Court in Hanumant Vs. The Apex Court in Hanumant Vs. State of Madhya Pradesh reported in AIR 1953 SC 343 dealing with the nature of proof required to establish a criminal charge by circumstantial evidence observed as under : “It is well to remember that in cases where the evidence in of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and pendency and they should be such as to 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.” 10. The above principle has been constantly followed by the Apex Court in a catena of subsequent judgments. In Sharad Birdhi Chand Sarda vs. State of Maharashtra reported in AIR 1984 SC 1622 the Apex Court laid down the following golden principles for proof of a criminal charges which solely rests on circumstantial evidence : “152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.” 11. Keeping in view the above principle to prove a criminal charge by circumstantial evidence, let us now consider the evidence brought on record, to see, how far the circumstance have been proved solidly beyond all reasonable doubt. 12. The first circumstances relied by the learned trial court was that the deceased and appellants were only people present in the house of the accused at the time of death of the victim. Apparently, no evidence could be brought on record to show, that the appellants were present with the deceased at the place of occurrence. However, the finding of the learned trial court was based on the statement of the appellants recorded under Section 313 CrPC, inasmuch as, both the appellants in their examination under Section 313 CrPC stated, that mother of the deceased and they were present in the house at the time of death of the victim. However, the finding of the learned trial court was based on the statement of the appellants recorded under Section 313 CrPC, inasmuch as, both the appellants in their examination under Section 313 CrPC stated, that mother of the deceased and they were present in the house at the time of death of the victim. The statement of the appellants recorded under Section 313 CrPC transpires, that there were three persons present including the appellants. It is to be borne in mind that statement recorded under Section 313 CrPC is not substantive evidence. However, such statement can be used against the accused in the trial in view of Sub-section (4) of Section 313 CrPC. Though, normally the statement recorded under Section 313 CrPC is to be considered as a whole, it is possible to rely on the inculcatory part of the statement, if the exculpatory part is found to be false. The third person, stated to be present was even not examined by the prosecution as witness. Apparently, no evidence could be brought on record to prove, that statement of the appellants regarding presence of another person, who was none but mother of the victim herself, was false. When there was no evidence to establish that presence of third person at the place of occurrence as stated by the appellants, was false, the whole statement and not only that part, which goes against the accused should be taken into consideration. 13. Another important aspect to be looked into is the time of death. PW-1, the father of the victim deposed that on being informed by the appellant Bobo, he came to the place of occurrence at 6 PM and found her daughter dead. Therefore, evidently death of the victim occurred before 6 PM, whereas as per FIR time of death was 7 PM. Therefore, time of death was also not such, so as to rule out the presence of the third person as stated by the appellants. The non-examination of the mother of the victim, who was present at the time of death of the victim also further clouded the first and the most vital circumstances relied by the learned trial court. Therefore, in our considered view, the first circumstances cannot be said to have been established solidly beyond reasonable doubt. 14. The non-examination of the mother of the victim, who was present at the time of death of the victim also further clouded the first and the most vital circumstances relied by the learned trial court. Therefore, in our considered view, the first circumstances cannot be said to have been established solidly beyond reasonable doubt. 14. Another circumstances, sought to be relied by the learned trial court was that the appellant gave a false explanation as to cause of death. Placing reliance on Gajanan Dashrath Kharate Vs. State of Maharashtra reported in (2016) 4 SCC 604 and Trimukh Maruti Kirkan Vs. State of Maharashtra reported in (2006) 10 SCC 681 , learned Addl. P.P. submits that when serious offence like murder is committed in secrecy, inside the house, the inmates of the house or the sole person, who was found to be with the victim are under obligation to explain, as to how the death occurred and the false explanation given by the prime suspect is a strong circumstances against the appellants. 15. It is to be borne in mind, that in order to put a reverse burden on the appellant under Section 106 of Evidence Act, prosecution has to first proved beyond doubt that the appellants alone were with the victim at the relevant time, reason being that, the initial burden in a criminal case is always with the prosecution to prove the guilt. Once such burden is clearly discharged, then only question of reverse burden would arise. As already indicated above, prosecution failed to establish beyond reasonable doubt that there was none with the victim except the appellants at the time of death. 16. Though motive was also taken one of the circumstance, we do not find any cogent evidence to attribute any motive to the appellants for causing death of the deceased. 17. Even if it is assumed for the sake argument that both the appellants along with the third person were present, the question necessarily would arise as to who committed the offence. Unless specific and cogent evidence is brought on record, culpability cannot be attributed to any one or two in exclusion of other on mere surmise and conjecture, when admittedly three persons were present with the victim. Unless specific and cogent evidence is brought on record, culpability cannot be attributed to any one or two in exclusion of other on mere surmise and conjecture, when admittedly three persons were present with the victim. This apart, in order to held both the appellants liable invoking section 34 of the IPC, prosecution needs to establish by cogent evidence that (i) there was common intention in the sense of pre-arranged plan between them and (ii) the persons sought to be held liable had participated in some manner in the acts constituting the offence. Unless the common intention and participation of all the persons in some form or other are proved, Section 34 IPC cannot be applied. When all the circumstances relied, have not been established solidly beyond doubt, and there was also no evidence and materials to prove, that the appellants had the common intention or both of them participated in the alleged act constituting the offence, we are unable to concur with the findings of the learned trial court that the chain of circumstances was completed unerringly leading to the conclusion, which is consistent only with the hypothesis of the guilt of the accused. 18. It is the cardinal principle of administration of criminal justice that one cannot be condemned on mere surmises and conjectures. In a criminal case solely relying on circumstantial evidence, it is not sufficient to merely establish that the accused may be the persons committing the offence. The circumstance should establish conclusively, that accused persons must be the perpetrator of the offence. “It is primary principle that the accused must be and not merely may be guilty, before the court can convict and the mental distance between may be and must be is long and devides vague conjectures from sure conclusion” (see Sivraj Sahabrao Bobade & Anr. State of Maharashtra). The evidence and materials brought on record, in our considered opinion fell short of proving the guilt of the accused beyond reasonable doubt and as such the appellants were atleast entitled to the benefit of doubt. Being of the above view, we give the benefit of doubt to the appellants and set aside the conviction and sentence. 19. Accordingly, the appeal stands allowed. The appellants shall be released forthwith, if not warranted in any other case. 20. Send down the LCR along with a copy of this judgment and order immediately. 21. Being of the above view, we give the benefit of doubt to the appellants and set aside the conviction and sentence. 19. Accordingly, the appeal stands allowed. The appellants shall be released forthwith, if not warranted in any other case. 20. Send down the LCR along with a copy of this judgment and order immediately. 21. Appreciating the assistance rendered by Mr. R.M. Choudhury and Mr. I.A. Hazarika, learned Amicus Curiae, we hereby provide that they will be entitled to Rs. 7500/- each as professional fees, which shall be paid to them by the Gauhati High Court Legal Services Committee upon production of a copy of this judgment.