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2019 DIGILAW 1303 (GAU)

Noor Zamal Seikh v. State of Assam

2019-11-29

M.R.PATHAK, NELSON SAILO

body2019
JUDGMENT : Nelson Sailo, J. Heard Mr. H.R.A. Choudhury, learned senior counsel assisted by Mr. A. Ahmed, learned counsel for the appellant and Mr. M. Phukan, learned Additional Public Prosecutor, Assam for the State respondent No.1. None appears for the respondent No.2, despite notice. 2. This is an appeal filed by the appellant against the judgment and order dated 10.08.2015 passed by the learned Additional Sessions Judge (FTC), Lakhimpur, North Lakhimpur in Sessions Case No.22 (NL)/2014 arising out of GR Case No. 1822 of 2013, whereby the appellant was convicted under Section 302 of the Indian Penal Code (in short 'IPC') and sentenced to undergo rigorous imprisonment for life with a fine of Rs.5000/- and in defult thereto, to undergo rigirious imprisonment for another period of 3 months. 3. The prosecution's case in brief is that on 22.11.2013, one Md. Kaku Mir lodged an FIR with the Khelmati Police Out-post under the North Lakhimpur Police Station stating that one Marjina Begum (the deceased) who was staying as his tenant for about last 8 months was found to have sustained burnt injuries of on her body inside her room on 21.11.2013 about 8.30 p.m. The informant with the help of other local people after breaking open the door, took the deceased and her husband Md. Nur Zamal Sheikh (the appellant) out of the room and to Lakhmpur Hospital by an ambulance in an injured state. However, the deceased succumbed to her injuries and the FIR was filed assuming that it was the appellant who killed her by setting her on fire. 4. On receipt of the FIR, GD entry No.375 dated 22.11.2013 was made by the In-Charge of Khelmati Police Outpost. Thereafter, it was forwarded to Officer In-Charge of North Lakhimpur Police Station for registration of a case and following which, North Lakhimpur P.S. Case No.859 of 2013 under Section 302 of the IPC was registered and the complaint investigated into. 5. The Investigating Officer after completing his investigation submitted a charge sheet before the learned SDJM which was then committed to the learned Sessions Judge, Lakhimpur at North Lakhimpur as the case was exclusively triable by a Session's Court. Thereafter, Sessions Case No. 22 (NL) / 2014 was registered and the learned Sessions Judge on 20.05.2014 framed formal charge against the appellant under Section 302 IPC and to which, the appellant pleaded not guilty and claimed for trial. Thereafter, Sessions Case No. 22 (NL) / 2014 was registered and the learned Sessions Judge on 20.05.2014 framed formal charge against the appellant under Section 302 IPC and to which, the appellant pleaded not guilty and claimed for trial. The case was then endorsed to the learned Additional Sessions Judge (FTC), Lakhimpur, North Lakhimpur for trial. 6. During the trial, the prosecution examined as many as 8 prosecution witnesses including the Doctor who conducted the post-mortem examination on the dead body of the deceased. The defence however on their part did not adduce any evidence. Upon conclusion of the evidence of the prosecution, the appellant was examined under Section 313 of the Code of Criminal Procedure (Cr.P.C.) whereafter, the trial Court vide Judgment and Order dated 10.08.2015 convicted and sentenced the appellant under Section 302 IPC in the manner as already aforementioned. The appellant being aggrieved with the impugned judgment has preferred the present appeal. 7. Mr. H.R.A. Choudhury, learned senior counsel by referring to the memorandum of appeal submits that the learned Trial Court miserably failed to scrutinize the evidence on record in proper perspective and exaggeratedly emphasized the hearsay evidence in coming to its conclusion. He submits that there were no eye witness as regards the person who set fire on the victim but as the appellant was inside the room, the learned Trial Court presumed that the fire was set by the appellant. He submits that the learned Trial Court could not have come to such a conclusion, inasmuch, as the appellant himself sustained severe burnt injuries while trying to save the deceased. The learned senior counsel submits that from the evidence led by the prosecution themselves, the appellant and the deceased were living peacefully as husband and wife and there being no eye-witness, the learned Trial Court could not have convicted and sentenced the appellant only on the basis of her hearsay evidence. 8. The learned senior counsel further submits that PW-3, Md. Asraf Ali in his cross-examination clearly stated that the deceased might have committed suicide but however the learned Trial Court in its Judgment failed to discuss the evidence on the commission of suicide by the deceased. 8. The learned senior counsel further submits that PW-3, Md. Asraf Ali in his cross-examination clearly stated that the deceased might have committed suicide but however the learned Trial Court in its Judgment failed to discuss the evidence on the commission of suicide by the deceased. Under the circumstances, merely because the appellant was in the room while the deceased was on fire, the learned Trial Court presumed that it was the appellant who set the deceased on fire and thus convicted and sentenced him vide the impugned Judgment. The impugned Judgment of the learned Trial Court therefore cannot be sustained and the same should be set aside and quashed and the appellant be acquitted from the charge under Section 302 IPC. 9. The learned senior counsel by referring to the evidence of the PWs-1 and 2 in the cross-examination submits that both the appellant and the deceased as husband and wife lived happily and they never witnessed any quarrel between them. He submits that similarly PW-3 and PW-6 also in their cross-examination clearly stated that they have never witnessed any quarrel between them and that even two days before the incident, they had lived happily. He further submits that PW-7 also in his cross-examination clearly stated that she found the couple living happily even on the day of the incident when she went to their house. The learned Trial Court while recording such evidence also failed to appreciate the fact that the appellant himself sustained burnt injuries while trying to extinguish fire on the person of the deceased. PW-3 also stated in his evidence that the door of the rented house was made of plain sheet and there was no hook system in the door, from outside and inside. Therefore, the doors were fastened with chains and then locked during night. Learned senior counsel therefore submits that locking the door from inside cannot be the circumstance to implicate the appellant in the case. Mr. HRA Choudhury, the learned senior counsel thus submits that under the facts and circumstances, the impugned judgment of the learned Trial Court may be interfered with and the appellant be set at liberty by the acquitting him. 10. The learned senior counsel in support of his submission has relied upon the following authorities: (i) Chandan Debnath vs. State of Assam, (2015) 3 GauLR 1 (ii) Sh. 10. The learned senior counsel in support of his submission has relied upon the following authorities: (i) Chandan Debnath vs. State of Assam, (2015) 3 GauLR 1 (ii) Sh. Lalemruata vs. State of Mizoram, (2015) 4 GauLT 819 (iii) Rajkumar Singh alias Raju Alias Batya vs. State of Rajasthan, (2013) 5 SCC 722 (iv) Anil Nath vs. State of Assam, (2018) 1 GauLT 579 (v) Anjan Kumar Sarma and Ors. vs. State of Assam, (2015) 14 SCC 359 11. Appearing for the State, Mr. M. Phukan, the learned Additional Public Prosecutor, Assam submits that at the relevant point of time, it was only the appellant and the deceased who were in the house and the door was locked from inside. Upon noticing the fire and the commotion, PWs-1 and 3 rushed to the spot only to find the door locked from inside. Therefore, they broke open the door and on entering the house, they found that the deceased engulfed with fire and the appellant was trying to put off the fire. PW-3 then took a blanket and wrapped it around the deceased and managed to put out the fire. He submits that from the evidence led by the prosecution witness, it can be seen that there was no serious attempt on the part of the appellant who put out the fire and that he even did not open the door while PW-1 and PW-3 tried to enter the house. Appellant being the only person present in the house before PW-1 and PW-3 arrived on the spot will only be the best person to explain as to how the deceased had got fire. Although the appellant was examined under Section 313 Cr.P.C., he failed to offer any explanation in this regard. Besides not having any explanation, as to how the fire started, the appellant otherwise clearly admitted the evidence of PW-1 that he saw the fire and he along with PW-3 broke open the door to enter the house and then PW-3 to be a blanket around the deceased who put out the fire. Such attempt on the part of the appellant clearly corroborates to the evidence of the prosecution witness, more particularly, PW-1 and PW-3. Such attempt on the part of the appellant clearly corroborates to the evidence of the prosecution witness, more particularly, PW-1 and PW-3. As regards the question put to the appellant in his examination under Section 313 Cr.P.C. as well that during the day time on the day of the incident, PW-5 deposed that there was a quarrel between him and his wife i.e. the deceased, the appellant in reply answered in the affirmative and admitted that there was an altercation. Under such circumstances, it is clear that it was none other than the appellant himself who had set fire upon his wife. If the deceased had attempted to commit suicide, the appellant would have rushed out of the room to seek help instead of keeping the door locked from inside. Therefore, considering the evidence and the facts and circumstances, the learned Trial Court rightly convicted the appellant under Section 302 IPC. As such, the impugned Judgment may not be interfered with by this Court. 12. In support of his submission, Mr. M. Phukan, learned Addl.P.P. has relied upon the following authorities: (i) Trimukh Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681 (ii) K. Ravi Kumar vs. State of Karnataka, (2015) 2 SCC 638 (iii) Kalu Ram vs. State of Rajasthan, (2000) 10 SCC 324 (iv) Pundalik vs. State of Maharashtra, (2010) 15 SCC 122 13. We have heard the submissions advanced by the learned counsels for the rival parties and we have also perused the materials available on record including the record of the learned Trial Court that was requisitioned. In order to find out as to whether the learned trial Court was right in convicting and sentencing the appellant under Section 302 IPC, the materials available in evidence against the appellant may be examined. 14. Pw-1, who is the informant and the Landlord of the appellant in his examination-in-Chief deposed that on 21.11.2013 at about 8.30 pm upon hearing hue and cry coming out from the room nearby came out of his house only to find out that there was fire inside the rented house of the appellant. He banged the door to enter the house but found it to be locked from inside then PW-3 who also arrived seen kicked upon the door and they entered the house where they saw the deceased was burning and the appellant was trying to put out the fire. He banged the door to enter the house but found it to be locked from inside then PW-3 who also arrived seen kicked upon the door and they entered the house where they saw the deceased was burning and the appellant was trying to put out the fire. PW-3 then covered the deceased with a cloth and he managed to put out the fire. The deposition of the PW-1 is corroborated with the statement of PW-3. PW-1 in his cross examination also stated that the deceased prior to her marriage with the appellant was married to another person and out of which she had a son. On the day of the incident, he saw the mother of the deceased coming to their house after the appellant left for work. The mother-in-law of the appellant left before the appellant came back from work along with the son of the deceased. The door of the rented house was made of plain sheet and there was no hook system. But doors were being fastened with chain and then locked with padlock during the night. This by itself cannot mean that the door could not be locked from inside as contended by the learned senior counsel for the appellant. PW-1 as well as PW-3 clearly deposed that the door was locked when they tried to open the door upon noticing the fire and hue and cry coming from inside the room. It was therefore clear that it was only the appellant and the deceased who were alone in their room when the incident occurred. From the evidence of PW-4, who conducted the post-mortem examination of the dead body of the deceased and his finding and the report itself, it can be seen that the deceased suffered 90% burnt injuries. In his cross examination, he also deposed that in case of 90% burnt injuries, death of a person is certain. Further, from the cross examination of PW-2 and PW-3, it may be noticed that the said witnesses never witnessed any quarrel between the deceased and the appellant. However, from the evidence of the PW-6, it may be seen that he came to know that the appellant and the deceased had quarrelled over a mobile phone on the day of the occurrence. Similarly, PW-7 also deposed that someone had told her that a quarrel took place between the couple on the night of the incident. However, from the evidence of the PW-6, it may be seen that he came to know that the appellant and the deceased had quarrelled over a mobile phone on the day of the occurrence. Similarly, PW-7 also deposed that someone had told her that a quarrel took place between the couple on the night of the incident. The fact remained that whether there was a quarrel between the couple or not, they were only two persons present inside the room i.e. appellant and the deceased while the deceased was burning and it was locked from inside. When PW-1 and PW-3 entered the room after broking the door, the appellant was seen to be trying to put out the flame from the deceased. During the examination of the appellant under Section 313 Cr.P.C., the appellant offered no explanation as to how the deceased got fire. He merely denied the allegation that it was he who set off the fire. 15. The Apex Court in the case of Anjan Kumar Sharma and Ors.(supra) held that in a case where other links have been satisfactorily made out and circumstance point to the guilt of the accused, circumstance of 'last seen together' and absence of explanation would provide additional link which complete the chain. In other words, lack of explanation and the circumstance of 'last seen together' cannot by itself be the ground for holding an accused to be guilty of the offence alleged. The circumstance would only provide additional link after a chain is established on the guilt of the accused. However, what may be noticed on the facts of that case is that the deceased was found in the company of the accused till 9 pm on 27.12.1992. The dead body of the deceased was found at about 1.50 pm on 29.12.1992 lying on the railway track. Failure on the part of the prosecution to lead evidence that the deceased was with the accused after 12 noon on 28.12.1992 led to the acquittal of the accused by the learned Trial Court. The High Court however reversed the acquittal of the accused and convicted them under Section 302 and 201 read with Section 34 IPC on the basis of 'last seen together' and absence of satisfactory explanation by the accused persons. The High Court however reversed the acquittal of the accused and convicted them under Section 302 and 201 read with Section 34 IPC on the basis of 'last seen together' and absence of satisfactory explanation by the accused persons. In the present case, as may be noticed, it was only the appellant and the deceased who were inside the room which was locked from inside. There was no intervening time so as to raise a reasonable doubt to infer that it was not the appellant who set fire on the deceased or that she had attempted to commit suicide. The circumstances under which the deceased was found to be on fire should have been explained by the appellant without merely denying his involvement. Therefore, the case of Anjan Kumar Sharma and Ors.(supra) on facts is not found to be applicable to the present case. 16. The Apex Court in the case of Rajkumar Singh (supra) and this Court in the case of Anil Nath (supra) and Sh. Lalemruata (supra) has also held that in case the prosecution evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of the statements of the accused cannot be made the sole basis for his conviction and sentence under Section 313 of the Cr.P.C. are not recorded after administering oath to the accused. There is no argument to this settled position in law. But however, in the present case, the appellant has not led any evidence in defence. He has also not explained as to why his wife was burning inside the room while there was no person at the relevant point of time. Therefore, this aspect of the matter cannot be ignored considering the surrounding facts and circumstances, more particularly, the immediate discovery of the deceased being in a burning state by PW-1 and PW-3. Therefore, the above decision in our considered opinion is found to be not applicable to the present case. 17. In the case of Chandan Deb Nath (supra), accused and his family did everything possible to save the life of the victim by taking her immediately to the hospital and thereafter, shifting from one hospital to another hospital for necessary treatment. In the present case, it was the PW-1 and PW-3 besides the appellant who immediately responded upon coming to learn about the fire inside the room of the appellant. In the present case, it was the PW-1 and PW-3 besides the appellant who immediately responded upon coming to learn about the fire inside the room of the appellant. An Ambulance had also reached the scene to evacuate the deceased and the appellant to the hospital but on reaching the hospital, the deceased was declared to be dead by the Doctor. The same is not the case in the present case and moreover, the appellant was alleged to be responsible for setting the deceased on fire. 18. In the case of Kalu Ram (supra), the Apex Court held that the accused thought of inflicting burns on the victim to frighten her but unfortunately the situation got out of control and became fatal. Under such circumstances, conviction of the accused was altered from Section 302 to 304 Part-II of the IPC. 19. In the case of Pundalik (supra), the Apex Court held that the incident concerned happened in course of sudden quarrel and in the heat of passion and therefore found it proper for converting the conviction of the accused under Section 302 IPC to that of an offence punishable under Section 304 part-II of the IPC. Custodial sentence of rigorous imprisonment for a period of 8 years was thus ordered. Similar was the decision of the Apex Court in the given facts and circumstances in the case of K Ravi Kumar (supra) as well. 20. The Apex Court in the case of Trimukh Maroti Kirkan (supra) held that where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature of amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be 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. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise of the burden to establish its case lies entirely upon the prosecution and there is no duty by all on an accused to offer an explanation. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise of the burden to establish its case lies entirely upon the prosecution and there is no duty by all on an accused to offer an explanation. In the present case, as already noted earlier, the appellant despite being found inside the room rented by him and his wife and it was locked from inside failed to give any explanation as to how his wife had got fire. In our considered opinion, some sort of reply to the question put to the appellant about the blame put to him that he was the person behind the cause of the fire should have been tendered by him, which may be also in any sort of proper or reasonable explanation. However, the appellant simply denied his involvement. Having regard to the case of Trimukh Maroti Kirkan (supra) we are of the considered opinion that the appellant cannot claim to get the benefit of doubt under the fact and circumstances. The evidence of the prosecution goes to show that the appellant himself tried to put off the fire but was not successful. But for this reason, we find that the ultimate conviction under Section 302 may not be warranted. But it would surely attract Section 304 Part-II of the IPC considering the Exception No.4 to Section 300 of the IPC. 21. In the result, upon due consideration of the entire facts and circumstances of the case, the conviction and sentence of the appellant is altered from Section 302 to 304 Part-II of the IPC. The appellant thus is sentenced to undergo rigorous imprisonment for 8 (eight) years. It is noticed that the appellant so far has undergone about 3 years of the sentence. He shall now serve the remaining sentence as directed herein above. Besides this modification, the other terms and conditions including the fine imposed by the learned Trial Court and the compensation directed under Section 357-A of the Cr.P.C. shall remain intact. 22. The criminal appeal accordingly stands disposed of. Registry to send back the lower court records immediately.