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2019 DIGILAW 920 (GAU)

Bijul Balarava v. State of Assam

2019-08-21

M.R.PATHAK, SONGKHUPCHUNG SERTO

body2019
ORDER : M.R. Pathak, J. 1. Heard Mr. Kaushik Goswami, learned Amicus Curiae for the accused appellant and Ms. Shamima Jahan, learned Additional Public Prosecutor, Assam for the respondent State. 2. The accused appellant has filed this appeal from; Jail being aggrieved with the Judgment and Order dated 28.04.2017 passed by the Court of learned Additional Sessions Judge, Goalpara in Sessions Case No. 27/2016 arising out of Baguan Police Station Case No. 190/2015, corresponding to G.R. Case No. 03/2015, whereby she has been convicted under Section 302 IPC having killed her husband by hacking him to death and sentenced to undergo Rigorous Imprisonment for life with a fine of Rs. 1000/-, in default to pay the same, to undergo further R.I. for 3 months. 3. We have perused the Trial Court records including the Post-mortem report of the deceased (Exhibit-3) as well as the evidence of the doctor (P.W. 9), who conducted the post-mortem examination of the deceased. The P.M. report of the deceased reflects that he sustained (a) cut injury over the throat at the level of the thyroid cartilage and (b) cut injury over the right side of the neck just below the right mandible and the cause of his death was indicated as due to hemorrhage and shock caused by those injuries, which were stated to be ante-mortem in nature. As per the opinion of said autopsy doctor the death of the deceased was homicidal in nature. 4. We have seen that there is no eyewitness to the incident. The prosecution's case is that the accused went to the Baguan Police Station in the morning of 22.12.2015 and surrendered before police, admitting thereby her guilt that she had killed her husband with a dao and that she made the admission in the police station, in the presence of two witnesses, namely, Sora Ram Rabha and Binda Rabha, whose names were reflected as witnesses of the prosecution at Sl. Nos. 6 and 7 respectively, in the charge-sheet filed, on 31.1.2016 (Exhibit-7). PW. 10, the concerned Investigating Officer of the case, in his evidence also stated that the accused made her statement in the police station in presence of those two witnesses. Inspite of that those two witnesses were not examined by the prosecution. 5. Nos. 6 and 7 respectively, in the charge-sheet filed, on 31.1.2016 (Exhibit-7). PW. 10, the concerned Investigating Officer of the case, in his evidence also stated that the accused made her statement in the police station in presence of those two witnesses. Inspite of that those two witnesses were not examined by the prosecution. 5. It is seen from the evidence of the informant, brother of the deceased/PW 1, Chandan Rabha, that as told to him by police, he lodged the FIR in the case against the accused, wife of the deceased, his sister-in-law. 6. The record of the case also reflects that at the time of the incident the accused appellant had two children; one son, aged about 13 years and a daughter aged about 3 years. The accused appellant in her statement under Section 313 Cr.P.C. had categorically stated that in the night of the incident she was in her paternal home and when she returned to her house in the morning of next day, she found her husband lying dead in a pool of blood with cut injuries on his neck, with a dao nearby him and that she had gone to the said police station only to give necessary information about the same to the police, but she was detained by the police. Evidence of the case recorded by the Trial Court also reveals that police informed the local Gaonburah (village-headman) PW.2 and thereafter, the local villagers could come to know about the said incident. 7. Mr. Goswami, learned Amicus Curiae have placed reliance on the judgments of the Hon'ble Apex Court passed in the cases, State of U.P. & Anr. Vs. Jaggo @ Jagdish & Ors., reported in 1971(2) SCC 42 , State of Himachal Pradesh Vs. Gian Chand, reported in (2001) 6 SCC 71 and Takhaji Hiraji Vs. Thakore Kubersing Chamansing & Ors., reported in (2001) 6 SCC 145 . 8. Ms. Jahan, learned Additional Public Prosecutor, have placed the Judgments of the Hon'ble Apex Court passed in the cases Ishwar Singh Vs. State of U.P., reported in (1976) 4 SCC 355 and Deny Bora Vs. State of Assam, reported in (2014) 14 SCC 42 . 9. Ms. S. Jahan, learned Addl. 8. Ms. Jahan, learned Additional Public Prosecutor, have placed the Judgments of the Hon'ble Apex Court passed in the cases Ishwar Singh Vs. State of U.P., reported in (1976) 4 SCC 355 and Deny Bora Vs. State of Assam, reported in (2014) 14 SCC 42 . 9. Ms. S. Jahan, learned Addl. Public Prosecutor for the State of Assam has submitted that the matter be remanded back to the concerned Trial Court so as to record the statements of the witnesses named in the charge-sheet, who were stated to have been present in the concerned police station while the accused made her confession and also to record the statement of the son of the accused appellant, who was 13 years old at the relevant time, as stated by the accused. 10. We have considered the submissions of both the parties as well as the judgments cited by them. 11. We have already observed that there is no eye-witness with regard to the alleged commission of murder of her husband by the accused and that it is the police who said that the accused had killed her husband, and surrendered before them and confessed her guilt that she had killed her husband. 12. We have seen that the prosecution did not examine two of the witnesses whose names figured in the Charge-Sheet of the case in whose presence, the accused had allegedly confessed. We have also taken note of the fact that evidence of the case also did not disclose where about of the children of the accused at the time of the incident. The prosecution has also not stated whether the accused was in her matrimonial home with her husband or not. Police have also not recorded the statements of the relatives of the deceased, including his 13 years old son; who was also not examined either by the prosecution or by the Court. 13. We have also considered the provisions of Section 391 of the CrPC as well as the decisions of the Hon'ble Apex Court in the cases of Rajeswar Prasad Misra Vs. State of West Bengal & Anr., reported in AIR 1965 SC 1887 , a judgment rendered by a Bench of three Hon'ble Judges of the Apex Court and Zahira Habibullah H. Sheikh & Anr. Vs. State of Gujarat & Ors., reported in (2004) 4 SCC 158 , which is also known as Best Bakery Case. State of West Bengal & Anr., reported in AIR 1965 SC 1887 , a judgment rendered by a Bench of three Hon'ble Judges of the Apex Court and Zahira Habibullah H. Sheikh & Anr. Vs. State of Gujarat & Ors., reported in (2004) 4 SCC 158 , which is also known as Best Bakery Case. 14. It is settled that: "the objects and purpose of Section 391 of the CrPC, is to empower the appellate Court to see that justice is done between the prosecutor and the person prosecuted and if the appellate Court finds that certain evidence is necessary in order to enable it to give a correct finding, it would be justified in taking action under the said Section. The primary object of section 394 of the CrPC is the prevention of a guilty person's escape through some careless or ignorant proceedings before a Court or vindication of an innocent person wrongfully accused. Where the Court through some carelessness or ignorance has omitted to record the circumstances essential to the elucidation of truth, the exercise of powers under Section 391 CrPC is desirable. There is no restriction in the wording of Section 391 CrPC either as to nature of the evidence or that it is to be taken for the prosecution only or that the provisions of the Sections are only to be invoked when formal proof for the prosecution is necessary. If the appellate Court thinks that it is necessary in the interest of justice to take additional evidence it shall do so there is nothing in the provision (Section 391 CrPC) limiting it to cases where there has been merely some formal defect. The matter is one of the discretion of the appellate Court [Zahira Habibullah Sheikh (supra)]. 15. It is also settled that: "the doctrine of finality of judicial proceeding does not stand annulled or affected in any way by reason of exercise of power under Section 391 CrPC as it avoids a de novo trial. Provisions of Section 391 CrPC is not to fill up the lacuna but to sub serve the ends of justice and it forms an exception to the general rule that an appeal must be decided on the evidence which was before the Trial Court. Provisions of Section 391 CrPC is not to fill up the lacuna but to sub serve the ends of justice and it forms an exception to the general rule that an appeal must be decided on the evidence which was before the Trial Court. Such powers being an exception shall always have to be exercised with caution and circumspection so as to meet the ends of justice and that this additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused. The power to take additional evidence in appeal has been vested to ensure that the concept of justice does not suffer, and "to rectify the irregularity". [Rambhau & Anr. Vs. State of Maharashtra, reported in (2001) 4 SCC 759 ]. 16. The Hon'ble Apex Court in the case of Rajeswar Prasad Misra (supra) observed that- "Additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. The power must be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial. It must, of course, not be received in such a way as to cause prejudice to the accused as for example it should not be received as a disguise for a retrial or to change the nature of the case against the accused." 17. Considering the provisions of Section 391 of the CrPC as well as the observations made by the Hon'ble Apex Court in the case of Rajeswar Prasad Misra (supra), Rambhau and Another (supra) and Zahira Habibullah Sheikh (supra), we are of the view that without the evidence of the two named witnesses in the charge-sheet, namely, Sora Ram Rabha and Binda Rabha as well as the son of the accused, there will be a failure of justice while ascertaining the truth of the matter in hand. 18. In view of the above and for the ends. 18. In view of the above and for the ends. of justice, we, in exercise of the power under Section 391 CrPC, direct the concerned Trial court, i.e., the Court of learned Additional Sessions Judge, Goalpara to record the evidence of two named witnesses in the charge-sheet, namely, Sora Ram Rabha and Binda Rabha as well as the son of the accused appellant by allowing the defense (accused) to cross examine them. After recording of such evidence, the said Court shall certify the evidence of those three witnesses and forward the same along with the case records to the Registry of this Court. The concerned Trial Court shall complete the said process within a period of 3 (three) months from the date of receipt of the LCR. 19. The name and address of the son of the accused Smti. Bijuli Bala Rava, who is serving the sentence in District Jail, Goalpara, is not available in the case record. As such, the Trial Court shall collect his name and address from the accused, through the Superintendent of the District Jail, Goalpara and after summoning all the witnesses noted above, on their proper identification, shall record their evidence as directed above. 20. Registry shall send back the records of Sessions Case No. Sessions Case No. 27/2016 arising out of Baguan P.S. Case No. 190/2015 to the Court of learned Additional Sessions Judge, Goalpara for necessary compliance of this order. 21. Registry shall list this matter for orders on receipt of the relevant LCR with the certificate of such evidence, recorded by the learned Trial Court, as directed above.