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2019 DIGILAW 695 (GAU)

Purna Kanta Borah v. State of Assam

2019-06-04

RUMI KUMARI PHUKAN

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JUDGMENT : Rumi Kumari Phukan, J. 1. Heard Ms. R. Devi, learned counsel appearing for and on behalf of the appellants and Mr. D. Das, learned Additional Public Prosecutor, Assam, for the respondent State. 2. Both the appellants were convicted in Sessions Case No. 64(JJ)/2008 under Section 306 IPC and sentenced to rigorous imprisonment for 3 years and to pay fine of Rs. 5,000/- each, in default further rigorous imprisonment for 6 months each, vide judgment and order dated 21.06.2010 passed by the learned Sessions Judge, Jorhat. 3. According to the appellants, they were not associated with the offence alleged and even the evidence on record is not sufficient to implicate them whereas the deceased committed suicide. It is contended that there is dearth of evidence to connect the accused-appellants with the offence alleged, but the learned trial court has convicted them only on surmises and conjectures instead of positive evidence. 4. The factual story of the prosecution is that the deceased (Mamoni Borah) was married to the accused-appellant No. 1 Purna Kanta Borah @ Babul on 31.01.2005 and after the marriage, she used to report to her brother about the torture made upon her by her in-laws. Suddenly on 16.07.2005, brother of said Mamoni (victim) got the information that she was found dead floating in the pond at her matrimonial house. Brother of the deceased sensing some foul-play on the part of in-laws that she might have been killed by them and thereafter drown her into the pond, an FIR was filed on the very next day i.e. on 17.07.2010. On the basis of the FIR, Borholla PS Case No. 41 of 2005 was registered under Sections 302/201/34 IPC. Inquest was made upon the dead-body of Mamoni Borah and sent for post-mortem examination whereupon the doctor opined that the death was due to drowning out of asphyxia. A suicidal note found attached to the dead-body was sent for F.S.L. examination and report was obtained. 5. At the conclusion of the investigation, police submitted charge-sheet under Sections 302/201/34 IPC against the two accused-appellants herein and both of them faced the trial and denied the charges framed by the court. 6. In support of the case, prosecution examined 16 witnesses and defence examined none. Plea of defence was of total denial. 5. At the conclusion of the investigation, police submitted charge-sheet under Sections 302/201/34 IPC against the two accused-appellants herein and both of them faced the trial and denied the charges framed by the court. 6. In support of the case, prosecution examined 16 witnesses and defence examined none. Plea of defence was of total denial. On conclusion of trial, the trial court found the charges proved and held both the accused persons guilty of an offence under Section 306 IPC and convicted and sentenced them, as indicated above. Challenging the aforesaid order for conviction, the present appeal is preferred. 7. I have considered the arguments put forward by the learned counsel appearing for the appellants. All the grounds that has been raised in the memo of appeal, it is contended that there is no such evidence to implicate the accused-appellants with the offence of abatement. Another bone of contention of the learned counsel is that the recovery of suicidal note is not proved properly and that apart, hand writing of the deceased was not proved. 8. I have also heard learned Additional Public Prosecutor, Assam, who has submitted that although the evidence has been surfaced against the accused-appellants and in view of the fact that victim died within a short span of her married life, court can raise necessary adverse presumption against the accused person in the backdrop of alleged torture made upon the victim. But, however, it is pointed out that very basis of the prosecution i.e. the suicidal note is not found on record nor the learned trial court has discussed about the same in its judgment although the learned trial court has basically relied upon on said suicidal note. 9. Pursuant to the submissions of the learned counsel for both the parties, this Court has gone through the evidence on record. It is to be noted that save and except the deposition of PW-1/informant to the effect that the deceased was allegedly tortured by the accused- persons, after her marriage, there is no any other supporting evidence on record about such torture upon the victim. The other witnesses that have been examined did not speak about any strain relationship between the accused persons and the deceased. The other witnesses that have been examined did not speak about any strain relationship between the accused persons and the deceased. The entire case hanged upon two situations, firstly, the victim was found dead in the pond inside the matrimonial house and secondly, a suicidal note was recovered from the dead-body (which was attached to the dead-body). The witnesses so far examined as PW-1 to PW-12 stated about the circumstance that the victim was not found on night of the day of occurrence and subsequently, she was found dead floating in the pond. But the accused persons were silent about the occurrence and shown ignorance as regards the cause of death of the deceased (victim). 10. From the trends of cross-examination of witnesses, it is found that the deceased was suffering from dysentery and she had to go to latrine frequently and to the pond for washing purpose. It was the defence plea that the victim might have died falling into the pond when she got down there for washing purpose. Apart from the plea that was taken by the defence, yet there is another aspect deserve consideration as regards the suicidal note which was recovered from the body of the deceased. The said suicidal note was recovered by the Investigating Officer in presence of PW-5 (the brother of the deceased), who also identified the hand-writing of deceased that was found in the suicide note. The said note was also examined by expert (PW-12), who in turn has also opined that the hand-writing in question on the document is tallied with that of the document which was sent to him for examination. 11. The learned trial court primarily basing upon the evidence of expert as regards the suicidal note coupled with the conduct of the accused persons, who remained silent after the incident without showing any reaction and in view of the allegation of the informant regarding torture etc. has held the accused persons guilty and convicted the accused- appellant under Section 306 IPC, as mentioned above. 12. Now, on appreciation of the evidence and the materials on record including the judgment, it is found that the learned trial court while appreciating the evidence on record, did not discuss about the Material Exhibit-2 (Mat. Exht.-2) i.e. suicide note whereas said document was produced by the prosecution. This Court also found no trace of suicidal note vide Mat. 12. Now, on appreciation of the evidence and the materials on record including the judgment, it is found that the learned trial court while appreciating the evidence on record, did not discuss about the Material Exhibit-2 (Mat. Exht.-2) i.e. suicide note whereas said document was produced by the prosecution. This Court also found no trace of suicidal note vide Mat. Ext.-2 on LCR to appreciate the matter. Appreciation of said suicide note is very much essential in the present case in hand. In the said suicide note which was addressed to the accused No. 1, the victim did not blame him for her death and all her allegation was against the accused-appellant No. 2 (Smti. Jyoti Borah). Peculiarly, this aspect has not been dealt with by the learned trial court in any manner and has simply relied upon the evidence of expert, which is, according to this Court, is not proper. There appears to be certain other facts, which has also not been elaborately discussed by the trial court. An allegation has been made about the death of the deceased which was kept suppressed by the accused- appellants from her family members but the evidence of the Investigating Officer goes to show that immediately after the occurrence the accused/husband gave a missing entry to the Officer-in-Charge concerned, on the basis of which a U.D. case was registered by the Investigating Officer, which is also on record. But, the said document is also not discussed and appreciated by the learned trial court. The role of the accused-appellants towards the commission of such offence is also not discussed elaborately, save and except a general observation made by the trial court. 13. In view of above non-discussion of Mat. Exht.3 (suicide note) and relevant factors, the decision arrived at by the trial court appears to be not proper and justifiable. While the learned trial court has based upon his decision on the basis of the suicide note then it is incumbent on the part of the trial court to discuss the aforesaid document in its judgment, but the same is not found in the impugned judgment. 14. While the learned trial court has based upon his decision on the basis of the suicide note then it is incumbent on the part of the trial court to discuss the aforesaid document in its judgment, but the same is not found in the impugned judgment. 14. For the reasons and discussions made here-in-above, the impugned judgment of conviction and sentence passed by the trial court is hereby set aside and the case is remanded back to the court of learned Sessions Judge, Jorhat, to decide the matter afresh having regard to all the materials on record including the Mat. Exht.1 (suicide note), after due appreciation thereof, in accordance with law. 15. The appeal stands disposed of accordingly. 16. Send down the LCR urgently.