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2018 DIGILAW 1654 (GAU)

Dipok Sarmah S/o Haresh Sarmah v. State of Assam Represented By The Public Prosecutor, Assam

2018-11-28

HITESH KUMAR SARMA, MIR ALFAZ ALI

body2018
JUDGMENT : H.K. Sarma, J. This appeal is directed against the judgment and order, dated 01.04.2014, passed by the learned Sessions Judge, Jorhat in Sessions Case No.9(JJ)/2012, acquitting the accused person from the charges under Section 302 IPC. 2. We have heard Mr. S Borthakur, learned counsel for the appellant and Mr. NK Kalita, learned Addl. Public Prosecutor, Assam for the State respondent. We have also heard Mr. S.K Barkataki, learned senior counsel for respondent No.2. 3. The prosecution case is that, on 16.10.2011, deceased Sikha Puzari @ Mili, wife of the accused Rajat Puzari, was set in fire by the accused after pouring kerosene on her and then lighting causing her instant death. 4. On receipt of the FIR, on the above facts, Jorhat police station registered a case, being No.751/2011 under Section 302 IPC, investigated into it, collected evidence, and finally, laid charge-sheet against the accused under Section 302 IPC. 5. Before examining the evidence on record, in its entirety, let us look into the evidence of the autopsy doctor, examined as PW-6, so as to find out the cause of death of the deceased. It has come out from the evidence of the autopsy doctor, PW-6, that on 17.10.2011, while working as Demonstrator in the Forensic Department of Jorhat Medical College and Hospital, on police requisition, he performed the post-mortem on the dead body of the deceased and found as follows: A female dead body of average built, scalp hair is signed. Body cold on touch. Rigor mortis present over whole body wearing garments are changed. Burn injuries present over whole body except portions of right hand below forearm. The burn injuries are dermo epidermal and deep over chest, abdomen, both lower limbs upto mid thigh level. Red lined areas are present at the junctions of healthy and burnt areas abdominal cavity is opened with partial cooking up of abdominal viscera and charming at places. No ligature mark around the neck. On dissection neck tissue as described. CRANIUM AND SPINAL CANAL : as described. Skull and vartevbrae–healthy. Membrane : congested. Thorax: Pleurae : congested. Larynx and trachere : congested, contains adherent root particles over mucosa. Rightand left lung : congested. Heart congested, contains about 30 ml of clotted and fluid blood. ABDOMEN Peritonoum : partially wolled up. Stomach and its contents : partially wolled up, empty. CRANIUM AND SPINAL CANAL : as described. Skull and vartevbrae–healthy. Membrane : congested. Thorax: Pleurae : congested. Larynx and trachere : congested, contains adherent root particles over mucosa. Rightand left lung : congested. Heart congested, contains about 30 ml of clotted and fluid blood. ABDOMEN Peritonoum : partially wolled up. Stomach and its contents : partially wolled up, empty. Liver, spleen and kidneys are partially wolled up The doctor opined that the death of the deceased was due to shock as a result of anti-mortem burn injuries covering about 96% of total body surface area. 6. During his cross-examination, he has specifically indicated that from the postmortem examination report, it does not reveal, as to whether the deceased committed suicide or the deceased was murdered by somebody, but the cause of death has been ascertained. Therefore, from the post-mortem report, Exhibit-4, it could not be ascertained whether death of the deceased was homicidal, suicidal or accidental although it could be ascertained that the death was due to 96% burn injury sustained by the deceased. In the backdrop of such evidence of PW-6, let us turn to the oral evidence of the non-official prosecution witnesses to find out whether there is any ocular testimony to substantiate the charge against the accused that he had set fire on the deceased resulting in her death. 7. The evidence of PW-1, the elder brother of the accused, is that at about 1.50 AM, of 16.10.2011, he heard noises in the house of the accused and then he went there only to find that the deceased was burning and the fire was extinguished by the time he arrived. He also noticed the presence of the accused there. Police seized a container of kerosene, one match box and one torch light in his presence from the place of occurrence. By the time he arrived at the place of occurrence, there are many other people gathered and noticed that nobody tried to put off the fire. 8. PW-2 is the elder brother of the deceased. Police seized a container of kerosene, one match box and one torch light in his presence from the place of occurrence. By the time he arrived at the place of occurrence, there are many other people gathered and noticed that nobody tried to put off the fire. 8. PW-2 is the elder brother of the deceased. He went to the place of occurrence on receiving a telephone call from one Putul to the effect that his sister got burnt by pouring kerosene, and immediately after receiving the said information, he reached the house of the accused within 2 (two) minutes and witnessed that the fire which caught the deceased was extinguished, in the meantime, and that she was lying dead. It has also come out from his evidence that the accused and other inmates of the house were very much present there. It has further come out from the evidence of PW-2 that the deceased informed him, on 14.10.2011, that she was beaten up by the accused on some small issues. 9. PW-3 is the witness who heard the accused shouting with the words “Morile oi, morile oi”, also saying that Mili (deceased) is no more. She immediately went to the house of the accused and found that the deceased died. The deceased was her sister. The deceased was found in the backside of the house of the accused with burn injuries on her person by this witness. The deceased was shifted to hospital in a 108 ambulance. 10. The evidence of PW-4 is that at about 1.30 am, i.e. the time of occurrence, she heard hue and cry in the house of the accused and noticed fire in the backside of the house of the accused. She also heard the accused crying and shouting that his wife was on fire but she did not visit the house of the accused at that time. 11. The evidence of PW-5 is also in tune of the evidence of PW-4, corroborating to the effect that the deceased was found burning in the backside of the house of the accused. He further disclosed that while he visited, he did not notice the accused at the place of occurrence, rather, he noticed the brother and sister-in-law of the accused there. In his cross-examination, he has expressed his ignorance about the nature of relationship between the accused and the deceased. 12. He further disclosed that while he visited, he did not notice the accused at the place of occurrence, rather, he noticed the brother and sister-in-law of the accused there. In his cross-examination, he has expressed his ignorance about the nature of relationship between the accused and the deceased. 12. The evidence of PW-7 relates to the inquest only. He conducted the inquest on the dead body of the deceased. According to his report, (Inquest Report), Exhibit-3, as per public report, the cause of death of the deceased was doubtful and same kind of statements were made by her own relatives also. 13. The evidence of PW-8, the investigating police officer, is of routine nature in respect of different stages of the investigation, carried out by him, including causing Inquest and the post-mortem examination of the deceased. 14. Therefore, it appears from the evidence, indicated above, that there is no eye witness to the occurrence as to how the deceased caught fire. The evidence of PW3, PW-4 & PW-5 makes it appear that while they visited the place of occurrence they found the deceased in the backside of the house of the accused and fire engulfed her. The evidence of PW-3 makes it appear that the accused came out of the house and shouted with words indicating that the deceased had caught fire and was also heard enquiring about her whereabouts. PW-4 & PW-5 are heard saying that they noticed the deceased in the backside of the house of the accused. The evidence of PW-3 appears to be reliable, as according to her, the accused was searching for his wife, she being in a place not visible i.e., the backside of the house as her such evidence received corroboration from the evidence of PW-4 & PW-5, as referred to the above. 15. The evidence of PW-3 appears to be reliable, as according to her, the accused was searching for his wife, she being in a place not visible i.e., the backside of the house as her such evidence received corroboration from the evidence of PW-4 & PW-5, as referred to the above. 15. Therefore, arguments of the learned counsel for the appellant that the conduct of the accused in not trying to put off the fire and the fact that the accused and the deceased had quarrels off and on, thereby trying to implicate the accused on the basis of such circumstances, in the considered view of this Court has no leg to stand in view of the evidence to the effect that the deceased, after she was caught by fire, left her room to the backside of the house, which was not visible to the accused as could be gathered from the evidence of PW-4 & PW-5. That being so, the medical evidence, led by PW-6, coupled with the fact that there is no eye witness to the occurrence and that the circumstances which the learned counsel for the accused is trying to show as implicating to rope the accused with the commission of the offence alleged, do not appear to have constituted a chain pointing only to the guilt of the accused without leaving scope for any other hypothesis. 16. In the absence of any specific evidence and the circumstances relied upon by the learned trial Court, being not relied upon, as stated above, this Court is of the view that the prosecution has not been able to prove the case against the accused, beyond all reasonable doubt, and therefore, the decision rendered by the learned trial Court acquitting the accused is a possible view adopted by the learned trial Court. It is not the case of the appellant that the learned trial Court could not have adopted the view which it has adopted. The learned counsel for the appellant has submitted that the evidence would have also justified an order of conviction of the accused. But it is settled law that while two views are possible, and the view adopted by the learned trial Court is also a possible view, no interference, on appeal, is called for. There must be perversity in the findings recorded by the learned trial Court. But it is settled law that while two views are possible, and the view adopted by the learned trial Court is also a possible view, no interference, on appeal, is called for. There must be perversity in the findings recorded by the learned trial Court. But, on consideration of the evidence on record, discussed above, this Court does not find that the judgment of acquittal recorded by the learned trial Court suffers from perversity. 17. Therefore, the impugned judgment rendered by the learned trial Court acquitting the accused/respondent No.2, on benefit of doubt, of offence under Section 302 IPC, needs no interference by this court in exercise of its appellate jurisdiction. 18. Therefore, the appeal stands dismissed. 19. Send down the LCR along with a copy of this judgment.