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2019 DIGILAW 1355 (GAU)

Mania Munda v. State Of Assam

2019-12-11

MIR ALFAZ ALI, S.HUKATO SWU

body2019
JUDGMENT : Mir Alfaz Ali, J. Heard learned Amicus Curiae, Mr. Z. Alam for the appellant, learned Addl. P.P., Ms. S. Jahan for the State-respondent No.1 and Mr. M.K. Sharma, learned counsel for the respondent No. 2/informant. 2. This appeal is directed against the judgment and order dated 19-05-2016 passed by the learned Sessions Judge, Tinsukia in Sessions Case No.46(T)/2010, By the said judgment, the learned Addl. Sessions Judge convicted the appellant under section 302 IPC and sentenced him to imprisonment for life and fine of Rs.1,000/- with default stipulation. 3. An FIR was lodged by Dilip Kr. Sonowal (PW-1), alleging, that on 09-01-2008 at about 2.30 pm, upon receiving a phone call from the neighbourer of the deceased, that an incident had taken place in the house of the deceased, he rushed to her house and found the deceased Dalima lying in a pool of blood. Immediately they shifted the deceased to the hospital. However, she succumbed to the injuries. It was also alleged in the FIR that one Arati was working as a maid in the house of the deceased. On the basis of the said FIR, police registered Tinsukia P.S. No. 25/2008 u/s 448/302 and commenced investigation. In course of investigation, police recorded the statement of the witnesses, seized various suspected incriminating articles, prepared the inquest report and sent the body for post mortem examination. Dr. Netramoni Kakoti (PW-26) conducted the post mortem examination on the body of the deceased. 4. The autopsy doctor (PW-26), who conducted post mortem examination found the following injuries :- 1. Deep lacerated injury on the left side of the chest deep into the lungs and chambers of heart measuring 1 “x 1 at the entry point of the injury. No exist point of the injury. 2. 1 x 1 x 1 inch laceration seen on the left hand, dorsal aspect. 3. Deep penetrating injury at left iliac region and left flanks measuring 1 x 1 inch and 1 x 1 inch at the entry point respectively. 4. Multiple penetrating injuries perforating the large intestine are seen. 5. Left kidney was found ruptured with penetrating injury. 6. Urinary bladder ruptured. Left lung, pericardium of the heart was found ruptured. 7. Left chamber of the heart are perforated and empty. In the opinion of the doctor death was caused due to coma resulting from the injuries on the head. Multiple penetrating injuries perforating the large intestine are seen. 5. Left kidney was found ruptured with penetrating injury. 6. Urinary bladder ruptured. Left lung, pericardium of the heart was found ruptured. 7. Left chamber of the heart are perforated and empty. In the opinion of the doctor death was caused due to coma resulting from the injuries on the head. All the injuries were ante-mortem in nature and caused by sharp cutting heavy weapon as well as by blunt force impact, which were homicidal in nature. Approximate time of death was 12 to 24 hours before the post mortem examination. 5. After completing the investigation, charge-sheet was laid against the four accused persons including the present appellant. Two of the charge-sheeted accused absconded and eventually the present appellant and another stood trial. 6. In course of trial, charges were framed against both the accused persons u/s 302/448 IPC read with Section 34 IPC, to which they pleaded not guilty. Thirty witnesses were examined by the prosecution to establish the charges against the accused persons. One court witness was also examined by the trial court. On appreciation of evidence, learned Sessions Judge convicted the accused persons u/s 302 IPC and awarded sentence as indicated above. 7. Learned Amicus Curiae, Mr. Alam submits that conviction was based on the lone circumstance that appellant was present in the home of the deceased at the time of occurrence and he failed to offer any explanation as to how the occurrence took place. Mr. Alam submits with vehemence that there was no evidence to attribute any special knowledge to the appellant, so as to put a burden on the appellant u/s 106 of the Evidence Act to explain as to how the death of the victim was caused, and as such, conviction and sentence of the appellant cannot be sustained. 8. Supporting the conviction and sentence of the appellant, learned Addl. Public Prosecutor, Ms. S. Jahan and learned counsel representing the informant/respondent No.1, Mr. M.K. Sharma submits, that presence of the appellant and co-accused Arati at the place of occurrence was established, as the appellant himself stated in his statement recorded u/s 313 CrPC, that on the day of occurrence he was present in the house of the deceased as construction worker, and therefore, he owed an explanation, as to how the occurrence took place. In absence of such explanation, the learned trial court cannot be blamed for drawing an inference against the appellant and the co-accused to attribute culpability to them, and as such, the conviction and sentence of the appellant warrants no interference, submits learned Addl. P.P. 9. We have meticulously scrutinized the evidence and materials brought on record and considered the submission made by the learned counsel for the parties. 10. Evidently there was no direct evidence and the conviction was based on the circumstantial evidence. The learned Sessions Judge relied upon the following circumstances : “(i) Deceased Dalimi Dutta died inside the house ; (ii) Death is homicidal in nature ; (iii) At the relevant time, construction work was going on in the house of the deceased and accused Binu Mahato was working as mason in the house of the deceased and accused Mania Munda was his helper ; (iv) Accused Mania Munda at the time of recording his statement u/s 313 CrPC admitted that at the time of occurrence, he and accused Binu Mahato were working in the house of the deceased ; (v) PW-1, 2, 9, 16 and 20 had seen Binu Mahato and Mania Munda working in the house of the deceased on the date of incident. After the incident, on being asked, they replied that they did not know how the incident took place. (vi) No explanation of the circumstances offered by the accused persons, in which they were present in the house of the deceased at the relevant time of occurrence and even they did not make any whisper that they had seen any person to enter into the house of the deceased to commit such offence.” 11. On our assessment of the evidence brought on record, we find that all the ocular witness including the near relatives of the deceased came later, having come to know about the occurrence and as such, they were not witness to the occurrence. 12. PW-1 deposed, that having come to know about the occurrence, he rushed to the place of occurrence and found the deceased lying on the verandah. He also stated to have seen injuries on victim's face, hands etc. However, the deceased was still alive, but she was not in a position to speak. He (PW-1) along with other relatives shifted the victim to hospital. He also stated to have seen injuries on victim's face, hands etc. However, the deceased was still alive, but she was not in a position to speak. He (PW-1) along with other relatives shifted the victim to hospital. During cross-examination, it was elicited that the deceased had been staying alone in the house and a maid servant, namely, Arati Tanti (absconding accused) used to work in the house of the deceased from 6 am to 8 am. The PW-1 further stated, that masons were working in the house of the deceased. According to him, Binu Mahato and his helper Mania Munda (appellant) were plastering the walls outside the drawing room and they were working above the 'saja' (extended slab above the doors and windows). PW-1 also stated, that police seized a 'dao', a pair of footwear and a piece of broken glass of the showcase from the place of occurrence and also collected samples of blood stain from the wall of the bathroom. 13. PW-2 stated that Binu Mahato and appellant Mania Munda used to work in the house of the deceased as mason and helper respectively. He also stated that one Arati Tanti was working in the house of the deceased as maid and her husband Ganesh Tanti, who was a rickshaw puller, used to ferry the deceased regularly to and fro her office. According to him, a blood stained “nightie” of the deceased was seized by police from the house of Arati Tanti (co-accused). During the cross-examination of the PW-2, it was elicited, that at the time of occurrence the deceased used to live alone in her house. He further stated in his cross-examination that construction work above the slab (of 1st floor) was going on for last six months. 14. PW-6 stated, that a mason and his helper was working in the house of the deceased at the relevant time and one Arati was also working as a maid in her house. He also stated that the co-accused Arati made a confession before the police and narrated as to how she along with her companion committed the offence. 15. PW-7 stated that having come to the place of occurrence upon receiving the information, she had seen the appellant Mania and co-accused Binu on the slab of the house of his sister. She also stated about the co-accused Arati working in the house of the deceased as maid. 15. PW-7 stated that having come to the place of occurrence upon receiving the information, she had seen the appellant Mania and co-accused Binu on the slab of the house of his sister. She also stated about the co-accused Arati working in the house of the deceased as maid. According to PW-8, before he reached the place of occurrence, the deceased was shifted to hospital. 16. PW-10 and PW-4 are the son and daughter of the deceased who were in Chennai and Gauhati respectively and came home upon knowing about the occurrence. The PW-10 stated to have seen Binu Mahato in their house. PW-4 stated, that Arati used to work in their house as a maid. PW-10 further stated, that a “nightie” (woman's wear) of her mother was recovered from the house of accused Arati. PW-11 another sister of the deceased stated about the accused Arati making confession before police. 17. PW-20 stated that Binu Mahato and Mania Munda were working as mason and helper respectively in the house of the deceased. According to him, Arati Tanti was a maid servant in the house of the deceased and her husband used to ferry the deceased to and fro her office. According to him, on arrival at the place of occurrence, he found the deceased lying in a pool of blood and she was not able to speak. He along with PW-1 shifted the deceased to hospital. According to him, police seized 'dao' and rod from the place of occurrence. He further stated, that sari, “nightie” and other clothes were seized from the house of Arati vide Ext. 5. PW-20 also stated, that he came to learn from Arati, that Arati and Binu Mahato inflicted the injuries to the deceased. 18. The PW-9, a neighbour of the deceased, stated, that Binu Mahato was working as a mason in the house of the deceased. On the day of occurrence at about noon, the mason came to her house and drew their attention by shaking the lock of the gate and called his wife. When he came out, the mason told that perhaps “baideu” (deceased) had fallen down. Immediately PW-9 came to the place of occurrence and found people gathering there. He stated to have gone near the front door of the house, which was found closed. When he came out, the mason told that perhaps “baideu” (deceased) had fallen down. Immediately PW-9 came to the place of occurrence and found people gathering there. He stated to have gone near the front door of the house, which was found closed. He further stated that blood was flowing through the door, whereupon he asked the mason Binu Mahato to bring a crowbar. He opened the door with the crowbar and found that the deceased was lying in a pool of blood near the door. PW-9 also stated to have noticed cut injuries on the head, face, nose and other parts of the body of the deceased. However, the victim was still alive at that point of time and seeing him (PW-9), she (deceased) tried to move towards the verandah and on being asked by him (PW-9), as to what had happened, she (deceased) replied that she was assaulted. PW-9 further stated, that in the meantime, the co-accused Arati, who was working in the house of the deceased as maid, was seen there and on being asked by him, as to where from she came out, she replied that she had come to see the deceased. PW-9 also stated, that Arati had a beg in her hand. According to him, a hammer and a 'dao' were found inside the house of the deceased. He further stated that police went to the rented house of Arati, where her landlord told the police, that after coming to the house, she was washing clothes. According to him, police seized the clothes from her house and blood stained footprints were also found. During cross-examination, PW-9 deposed that he had seen 4/5 masons working in the house of the deceased and on their arrival, they found the doors and windows of the house closed. 19. PW-16, wife of PW-9, stated in the same tune, that at about 1/1.30 pm, one mason working in the house of the deceased, whose surname was Munda came to their house and shouted by saying something had happened to the deceased. Immediately she along with her husband (PW-9) came to the house of the deceased. Her husband (PW-16) tried to open the door, but it was closed from inside. At that point of time someone brought a crowbar and her husband opened the door by means of the crowbar and found the deceased lying in a pool of blood. Immediately she along with her husband (PW-9) came to the house of the deceased. Her husband (PW-16) tried to open the door, but it was closed from inside. At that point of time someone brought a crowbar and her husband opened the door by means of the crowbar and found the deceased lying in a pool of blood. She also stated to have seen the maid servant of the deceased in the corner of the verandah, clad in a “nightie” with a bag in her hand. Upon her query as to what was she doing there, she exclaimed by saying what had happened to the deceased and left the place. She also stated during cross, that there was a door with grill on the front verandah, which remained closed. During cross-examination she also admitted that she told the police referring to the person who came to call them as “mistry” and did not tell his surname as Munda. 20. PW-19 deposed, that Arati Tanti (absconding accused) was working as maid in the house of the deceased. He also stated that some masons working in the house of the deceased. 21. PW-13 stated, that police made a search in the house of a woman and seized a shawl, a sari and a sweater and took away the woman with them. According to PW-14, police seized a CD vide seizure list (Ext.-4) and took his signature there. He also proved the said CD as material ext. in the court. 22. PW-15 stated, that police found a pair of rubber footwear and a 'dao' in the house of the deceased. Police also found blood stain footprints in the bathroom. According to him, police went to the house of Arati, the maid servant of the deceased and seized a “nightie” from the house of Arati vide seizure list (Ext.-5). Police also seized footwear, and collected blood samples from the wall, which was seized by them vide Ext.-6 and Ext.-7 respectively. 23. PW-23 was the doctor, who attended the deceased before her death and found multiple injuries on her body. PW-24, who was a police constable, stated that he accompanied the O.C. to the house of a woman accused in the case. According to him, the said woman produced a sari, a shawl and a sweater from her house, which was seized by the O.C. PW-25 was a CID photographer. PW-24, who was a police constable, stated that he accompanied the O.C. to the house of a woman accused in the case. According to him, the said woman produced a sari, a shawl and a sweater from her house, which was seized by the O.C. PW-25 was a CID photographer. According to him, he accompanied the police to videograph the reproduction of the crime scene by a woman. 24. PW-27, the investigating officer stated that on 09-08-2008 at 2.45 am, he received a telephonic information regarding the occurrence from Dr. M.K. Baruah and made a GD Entry and proceeded to the place of occurrence. According to him, he requisitioned sniffer dog. The dog was made to sniff the place of occurrence and the sniffer dog led to the house of the accused Arati and she was found in her house. He arrested Arati Tanti and brought to the police station and thereafter, he seized one blood stained 'machi dao'. He also stated to have seized one blood stained flower printing nighty belonging to the deceased from the house of Arati Tanti, vide seizure list (Ext. 5), one light blue half sporting without collor from the co-accused Binu Mahato and sent those articles including the weapon for forensic examination. PW-27 also proved the FSL report as Ext.-15. PW-29 another police officer deposed regarding confession made by Arati Tanti before police. 25. From a dispassionate scrutiny of the oral testimony of all the witnesses, it appears that all the ocular witnesses came to the scene of crime after the occurrence and found the deceased lying in an injured condition. It was in the evidence of PW-16 and PW-9 that occurrence took place inside the house and the front door of the house of the deceased was closed, which was broke open by PW-9 (mother) to enter into the room and the accused Arati Tanti was found somewhere inside the room. it is also in the evidence of PW-16 that at the relevant time the present appellant being a mason was working in the house of the deceased and was plastering the wall above the 'saja' (slab above the windows and doors) as the construction of the first floor was going on. In fact, the appellant also stated in his examination i/s 313 CrPC, that he was working in the house of the deceased. In fact, the appellant also stated in his examination i/s 313 CrPC, that he was working in the house of the deceased. Evidently the appellant had been working in the house of the deceased since prior to the occurrence and the co-accused, who was also working with the present appellant, informed the PW-9 and PW-16 about the occurrence, whereupon they informed the relatives of the deceased and the neighbouring people. It is also in the evidence of PW-4 and PW-7 that the appellant was plastering the outside of the wall above the “saja”. Evidently the occurrence took place inside the house, which was also locked from inside. The evidence of PW-9 and PW-16 shows, that the front side door was locked from inside and they entered the house by breaking open the door with the help of crowbar. It is also in their evidence that all the doors and windows of the house were closed. There is, however, no evidence on record that the back side door was also locked from inside. The evidence of the PW-9 and PW-16, shows that when they entered the house by breaking the front side door, they found Arati in the corner of the verandah, which clearly indicated that Arati was somewhere inside the house even before arrival of PW-6 and PW-9 and other neighbours. As deposed by the prosecution witness, usually Arati used to work in the house of the deceased in the morning hours from 6 am to 8 am. 26. Evidently a “nightie” (woman's wear) of the deceased was seized from the house of the co-accused Arati vide the seizure list (Ext.-5). The report of the FSL (Ext.-15) shows that the “nightie” of the deceased, which was recovered from the house of the accused Arati gave positive test for human blood. The blood stained footprints sample collected also matched with the footprints of the accused Arati Tanti as per the FSL report. However, the said accused has been absconding. From the evidence and materials brought on record, it was clearly established that the absconding accused Arati was found inside the house on the verandah, which was closed by grill and he left the place when the people assembled at the place of occurrence. 27. We however, do not find any material on record that the present appellant was inside the house which was closed. 27. We however, do not find any material on record that the present appellant was inside the house which was closed. The evidence of the PW-9 and PW-6 made it clear that front side door through which, usually the outsiders enter was locked from inside. It was, however, admitted position that the appellant was engaged in the construction work from prior to the occurrence and construction work of the first floor was going for last six months. On the basis of the evidence and the admission of the appellant during examination u/s 313 CrPC, that the appellant was working in the house of the deceased, the learned Sessions Judge held that when the appellant was present at the time of occurrence, he owed an explanation as to how the occurrence took place. The failure of the appellant to offer such explanation was considered as an incriminating circumstance by the learned Sessions Judge, to attribute culpability to the appellant by putting a reverse burden on the appellant u/s 106 of the Evidence Act. Basically the conviction of the present appellant was based on the said circumstance that he failed to put forward an explanation as to how the death of the deceased was caused. 28. It is to be borne in mind, that in a criminal trial, it is the burden of the prosecution to prove the guilt of the accused beyond all reasonable doubt and the accused has a right to remain silent. However, when the prosecution discharges it's burden by proving all the incriminating circumstances to prove the guilt of the accused or establishes certain facts which tend to inculpate the accused or an inference of guilt of the accused can be drawn from such facts, unless the accused put forward reasonable explanation to neutralise such inculpating circumstances against him; in such a situation, the accused owe an explanation in respect of the facts, which are within his special knowledge, inasmuch as, Section 106 of the Evidence Act provides that when any fact is specially within the knowledge of any person, the burden of proving that fact is on him. If the accused fails to or does not throw any light explaining the circumstances by exercising his right to keep silent, court cannot be blamed for drawing an adverse inference against the accused. If the accused fails to or does not throw any light explaining the circumstances by exercising his right to keep silent, court cannot be blamed for drawing an adverse inference against the accused. Section 106 of the Evidence Act, however, does not cast any burden on the accused to prove his innocence. Unless the prosecution proves the necessary incriminating facts against the accused beyond reasonable doubt, burden cannot be shifted to accused, inasmuch as, the provision of Section 106 of the Evidence Act is not intended to relieve the burden of the prosecution to prove it's case. Therefore, before shifting the burden to the accused/appellant u/s 106 of the Evidence Act to explain any circumstance or any fact within the special knowledge of the accused/appellant, prosecution must established beyond all reasonable doubt, the guilt of the accused or the necessary inculpating facts and circumstances within the special knowledge of the accused, which, unless explained by the accused, inference of guilt can be drawn against him. 29. The Apex Court in Jaydeb Patra and Ors. Vs. State of West Bengal, (2014) 12 SCC 444 dealing with provision of Section 106 of the Evidence Act and the burden of the accused to explain the facts within his special knowledge held as under :- “We are afraid, we cannot accept this submission of Mr. Ghosh. This Court has repeatedly held that the burden to prove the guilt of the accused beyond reasonable doubt is on the prosecution and it is only when this burden is discharged that the accused could prove any fact within his special knowledge under Section 106 of the Indian Evidence Act to establish that he was not guilty. In Sucha Singh Vs. State of Punjab, (2001) 4 SCC 375 , this Court held: “We pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference.” Similarly, in Vikramjit Singh Vs. State of Punjab, (2006) 12 SCC 306 , this Court reiterated: “Section 106 of the Indian Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same. Of course, there are certain exceptions to the said rule, e.g., where burden of proof may be imposed upon the accused by reason of a statute.” 30. In the present case evidently the appellant had been working as mason for the construction work of the first floor since before the occurrence. It is also in the evidence that deceased was a woman and living alone in the house. Evidently the front door of the house was locked from inside. There was no conclusive evidence as to whether the back side door or the door towards the inner courtyard was locked from inside or not. It has also been established, that the maid servant Arati who used to work in the morning hours from 6 am to 8 am was suspiciously present in the place of occurrence and ample incriminating materials were also brought on record raising finger of accusation to the maid servant. What therefore, crystallizes from the evidence on record is that the prosecution has not been able to prove beyond doubt that the appellant was with the deceased inside the house at the time of occurrence. When the doors and windows of the two storied RCC house were closed and the appellant was engaged in plastering the wall on upstairs above the 'saja', he could not be expected to have any special knowledge as to what had happened inside the house, where a lady was living alone. More particularly, when the evidence on record clearly established the presence of the co-accused Arati alone, in the house at the time of occurrence, which took place inside a closed RCC house, in our considered view, no special knowledge could be attributed to the appellant, who was working outside the house, that too on the upstairs above the 'saja'. More particularly, when the evidence on record clearly established the presence of the co-accused Arati alone, in the house at the time of occurrence, which took place inside a closed RCC house, in our considered view, no special knowledge could be attributed to the appellant, who was working outside the house, that too on the upstairs above the 'saja'. In view of the above facts and circumstances, in our considered opinion, the appellant did not owe any explanation as to how the death of the deceased was caused, nor any special knowledge could be attributed to the present appellant. 31. When the evidence brought on record clearly established that the prosecution has failed to prove beyond doubt that it was within the special knowledge of the appellant as to how the occurrence took place, burden could not be shifted to the appellant u/s 106 of the Evidence Act to explain as to how the death of the victim was caused. Therefore, in the facts and circumstances of the present case, the failure of the appellant to explain the circumstances, as observed by the learned trial court, in our considered view, could not be considered to be an incriminating circumstance against the accused/appellant. 32. It is the settled position as held by the Apex Court in a catena of decision that in a criminal trial resting solely on the circumstantial evidence, prosecution is required to prove each and every circumstances beyond reasonable doubt, and the circumstances so proved, must from a complete chain which leads to the irresistible conclusion, which is consistent only with the guilt of the accused and inconsistent with his innocence. In the present case, we find that the primary circumstances relied by the learned trial court, that the appellant was with the deceased at the time of occurrence and he had the special knowledge as to how the death of the deceased occurrend was not proved beyond reasonable doubt, and as such, chain of event remained incomplete. Therefore, the conviction and sentence of the present appellant cannot be sustained. Accordingly, we set aside the conviction and sentence of the appellant Mania Munda and allow the appeal. The appellant Mania Munda be released forthwith if not required in any other case. 33. The amicus curiae Mr. Z. Alam shall be entitled to fees of Rs. 7,500/-. 34. Send down the record.