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2019 DIGILAW 459 (GAU)

Kalia Gogoi v. State of Assam

2019-04-09

ACHINTYA MALLA BUJOR BARUA, MIR ALFAZ ALI

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JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Ms. S.G. Baruah, learned Amicus Curiae appearing for the appellant. Also heard Ms. B Bhuyan, learned Additional Public Prosecutor, Assam. 2. An ejahar dated 30.07.2014 was lodged by Smti Dipali Boro before the Officer-in-Charge of Uriamghat police station stating that although her daughter was married with the accused person for about 3 (three) years, she came back to her house around 3 (three) months back and informed that she was driven away from her matrimonial home. She further stated that on 30.07.2014 at about 7.30 am accused Kalia Gogoi assaulted her daughter and strangled her to death. 3. The informant Dipali Boro while deposing as PW-1 stated that at about 8.00 am on the day of the incident, the elder brother of the father of the accused person came to her house and informed that her daughter had hanged herself. Thereafter, she and her husband went to the house of the accused and saw that the deceased was lying on a bed. She further deposed that immediately after their arrival, police also arrived and that the police asked her and another woman to examine whether there was any injury on the body of the deceased. After examining the deceased, the witness found some marks of strangulation around the neck of the deceased. She further deposed that the elder brother of the father of the accused had told him that there was a quarrel between the accused and the deceased prior to the incident. In cross PW-1 states that she noticed certain injury only on the neck of the deceased. In her deposition, she also stated that the deceased daughter was earlier tortured in her matrimonial home. 4. PW-2 Pona Ram Gogoi, who is the father of the accused, deposed that at around 12.00 noon, his wife informed him that their daughter-in-law had hanged herself. In cross, the witness stated that he was informed that his sister-in-law and the accused together brought down the deceased and laid the body on a bed. 5. PW-3 Smti Nirala Gogoi, who is a neighbour, stated that at around 7.30 AM on the day of the incident she saw the accused entering the house and heard him saying to his wife, as to why she had not given tea to his grandfather, who was ploughing in the field. 5. PW-3 Smti Nirala Gogoi, who is a neighbour, stated that at around 7.30 AM on the day of the incident she saw the accused entering the house and heard him saying to his wife, as to why she had not given tea to his grandfather, who was ploughing in the field. She stated that at the relevant time the deceased was in the courtyard. She thereafter left for the field after the accused had entered his house. At around 8.00 AM when she returned from the field, she saw from her house that the accused was leaving for the field taking tea with him. At around 9.00 AM the accused called her from his house and informed her that the deceased had hanged herself and after entering the house of the accused she saw the deceased lying dead on the bed. 6. The evidence of PW-6, Dr. Pankaj Kr. Bhattacharjyee shows contused lacerated wound of 10 cm 1 cm over the right temporal region and 4 cm 1 cm over the parietal region. It was further deposed that fracture of occipital and right temporal and parietal bones were found and blood clot was found with suli and gyri and the brain matter of the membrane were congested. The scalp and the face was blood strained. The post mortem report also shows as follows: "A female dead body of average built. CLW of (10 cm 1 cm) over right temporal region and (4 cm 1 cm) over parietal region. Fracture of occipital and right temporal and parietal bones. Blood clot found within suli and gyre. Brain matter congested." 7. From the medical evidence it is noticed that death was due to shock and haemorrhage caused by the injuries as described above and neither any strangulation mark nor any opinion is available to arrive at a conclusion that the death had occurred due to strangulation or asphyxia. 8. It is also taken note of that the assertion that death was caused due to hanging was initiated from the accused himself, when he informed PW-3 upon her reaching the courtyard of his house that the deceased had hanged herself. 8. It is also taken note of that the assertion that death was caused due to hanging was initiated from the accused himself, when he informed PW-3 upon her reaching the courtyard of his house that the deceased had hanged herself. The views expressed by the other witnesses that death was cause due to hanging, in fact, appears to be flowing from such assertion being made by the accused and there is no independent material available to support the assertion that death was caused by hanging. All the witnesses who had seen the dead body stated that the body was lying on the bed. 9. It is only the PW-1 who stated that she had seen certain strangulation mark. Neither the medical report reflects any strangulation mark nor there exists any inquest report on record, to show the existence of any strangulation mark. 10. As per the medical report, death was caused because of the injuries described above, and that such injuries were caused by some blunt weapon which had hit the occipital portion of the backside of the head, near about the neck. PW-1 being an inexperienced person in such matters, her deposition as regards the existence of strangulation mark, can also be understood to be a any mark, that may have been caused by the hit of the blunt weapon on the portion, near about the neck. 11. In any view of the matter, when the medical evidence is clear, that death was caused due to the injuries described above, which was caused by a blunt weapon and there being no mark of strangulation, we are unable to accept by relying on the evidence of PW-1 that death may have been caused due to strangulation. 12. In the above circumstances, when we look into the evidence of PW-3, it is the accused who had made the assertion that death was caused by hanging. If the death was actually caused by the hit of a blunt weapon, and the accused tries to make it known to all that it was caused by hanging, in such a situation, we can infer that the accused deliberately tried to mislead all as regards the cause of the death. If the death was actually caused by the hit of a blunt weapon, and the accused tries to make it known to all that it was caused by hanging, in such a situation, we can infer that the accused deliberately tried to mislead all as regards the cause of the death. We further take note of the evidence of PW-1, who deposed, that the wife of the elder brother of the father of the accused told her that that there was a quarrel between the accused and the deceased prior to the incident. The said evidence is also in conformity with the evidence of PW-3, who deposed that the accused upon entering his house was heard to have been saying to his wife, as to why, tea was not given to the grandfather, which again is an indication of a quarrel. 13. But again from the evidence of PW-3, it is established that prior to the occurrence having taken place, the accused had entered the house where the deceased was staying at that time, and some time thereafter, he was also seen leaving the place. By applying a proposition laid down by the Honble Supreme Court in Trimukh Maroti Kirkan vs. State of Maharashtra reported in 2006 10 SCC 681 , in para 15, where it is provided that in such a situation in view of section 106 of the Evidence Act, there will be corresponding burden on the inmates of the house to give a cogent explanation as to why, the crime was committed, we are of the view that the accused being the inmate of the house at the time when the occurrence took place, the burden would be cast on him to give a cogent explanation as to in what manner the death had occurred to the deceased. 14. We have taken note of that the accused other than denying the allegation, had not given any explanation as to the cause of the death. The Honble Supreme Court in Trimukh Maroti Kirkan (supra) was of the further view, that the inmates of the house cannot get away by simply keeping quiet and offering no explanation on the premise that the burden to establish the cause lies entirely upon the prosecution and there is no requirement at all on the accused to offer any explanation. The Honble Supreme Court in Trimukh Maroti Kirkan (supra) was of the further view, that the inmates of the house cannot get away by simply keeping quiet and offering no explanation on the premise that the burden to establish the cause lies entirely upon the prosecution and there is no requirement at all on the accused to offer any explanation. By following the aforesaid proposition of law, we are of the view that the circumstantial evidence leads to conclusion where the chain of events is complete that it is the accused who had committed the offence resulting in the death of the deceased. 15. But at the same time, we also take note of the mitigating circumstance that there was a quarrel between the accused and the deceased just prior to the occurrence, and that the accused was angered by the act of the deceased, in not providing tea to him and his grandfather while they were ploughing in the field. Also taking into account, as to the manner in which the fatal injuries were inflicted, we are of the view that the act of the accused appellant comes within the purview of exception IV to section 300 IPC. 16. Accordingly it being a case of causing culpable homicide not amounting to murder, and also considering the circumstances in which the offence was committed, we convict the accused/appellant under Section 304 (Part-II) of the IPC. 17. We also take note that the accused has been in prison for almost up to 5 years. Considering amongst others, that the accused also has a daughter aged about 1 years at the time of the incident and possibly must be aged about 7 years as of now, and that the mother of the child had also died in the incident, we sentence the accused for the period of imprisonment already undergone. Accordingly, the accused be set at liberty forthwith, if not warranted in any other case. 18. The appeal stands partly allowed. 19. Appreciating the assistance rendered by Ms. SG Baruah, learned Amicus Curiae, we hereby provide that she will be entitled to Rs.7,500/- as professional fees. Upon production of a copy of this judgment, Guwahati High Court Legal Services Committee shall pay the fee to Ms. Baruah. 20. Send down the LCR along with a copy of this judgment.