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2020 DIGILAW 104 (GAU)

Jogeswar Teli @ Sahu Jorhat v. State Of Assam

2020-01-31

MIR ALFAZ ALI, S.HUKATO SWU

body2020
JUDGMENT S. Hukato Swu, J. - The present Criminal Jail Appeal is directed against the judgment and order dated 18.07.2018, passed by the learned Additional Sessions Judge, Jorhat convicting the accused/appellant under Section 302, IPC and sentenced with default stipulation to undergo imprisonment for life and also to a fine of Rs. 15,000/-. 2. Briefly the facts stated is that Mr. Girish Sahu filed an FIR before the Teok Police Station that his sister, Daneswari Sahu, had been killed by her husband, Jogeshwar on 28.12.2015. He received the message telephonically. Matter was investigated and charge framed against the accused under Section 302, IPC. The accused, at the stage of CC denied the charge and pleaded not guilty. Altogether, 7 (seven) witnesses were produced by the prosecution, out of which 2 (two) witnesses were declared hostile by the prosecution. P.W.2 and P.W.5 were found to be hostile. There is no eyewitness in the instant case. The only eyewitness could have been Ramon Teli, son of the accused. However, the prosecution did not bring him as a witness. It could be for the obvious reason that the son did not want to testify against the father. 3. P.W.1, Girish Sahu, the brother of the deceased testified that his sister, Daneswari Sahu married the accused his brother-in-law in the year 2004. He got telephonic message that his sister was murdered in her matrimonial home from neighbouring person and on reaching the matrimonial home of his sister did not find her. Nearby persons informed him that the accused and dead body of his sister had been taken to the Police Station. He went to the Police Station and found his sister's dead body and was mentally very upset. He put his signature on an FIR that was already prepared by the VDP Secretary and he signed there as an informant and inquest over the dead body was conducted in his presence. He heard from the neighbouring people that there was quarrel between the accused and his sister before the occurrence. He also stated that he does not know whether his sister used to consume liquor. 4. P.W.3 is Dr. Swaraj Phukan, who is the Medical Officer who conducted Post Mortem of the deceased. He has testified that he performed the Post Mortem on 28.12.2015 and gave the Examination Report. He also stated that he does not know whether his sister used to consume liquor. 4. P.W.3 is Dr. Swaraj Phukan, who is the Medical Officer who conducted Post Mortem of the deceased. He has testified that he performed the Post Mortem on 28.12.2015 and gave the Examination Report. In his examination, he found the following injuries:- "a. Contusion of size 7cm x 6cm was present on the middle and lower part of the neck on right side 4 cm below the angle of mandible. Another contusion of size 7cm x 4 cm was present on the middle and lower part of the neck in the front and left side of neck. Multiple crescentic scratch abrasions (nail marks of size varying from 1x0.5cm to 0.7x0.5cm was present over the neck and upper part of chest at places. On dissection diffused contusion of underlying neck tissues present. Soft tissues around the hyoid bone, thyroid cartilage were contused. Hyoid bone and thyroid cartilage were intact. b. Abrasion of size 3cm x 1cm tissue depth was present over the forehead on the left side just lateral to the eyebrow. c. Pressure abrasions of size varying from 5cm x 5cm to 0.1cm x 0.1 cm were present over the face, upper part of chest, lower abdomen, back, right thigh, left thigh, right upper limb and left upper limb at places. Cranium and Spinal cord:- Scalp: contused size of 12cm x 8 cm was present over right fronto parietal temporal scalp. Skull and Vertebrae-both healthy. Membrane-congested. Spinal Cord-not examined. Thorax: Walls-as described Fracture of 3rd to 7th ribs on right side along midclavicular line and 3rd to 6th ribs on left side along midclavicular line. Sterum fractured on middle 1/3rd. Pleurae- congested. Contains around 500 ml of fluid and clotted blood. Larynx and trachere- lacerated. Right and left lung- both lacerated. Pericardium- congested. Heat- congested, chamber empty, healthy. Abdomen Wall- as described. Peritonoum- congested, lateral incisoe of lower jaw on left side found broken. Stomach and its contents- healthy and empty without any specified smell. Small intestine and its contents- healthy, contains glue like substances. Large intestine and its contents- healthy, contains gas and faeces. Liver- lacerated. Spleen- healthy. Kidneys- congested. Bladder healthy and empty Organs of generation, external and internal External as described. Internal uterus healthy, cavity empty. Stomach and its contents- healthy and empty without any specified smell. Small intestine and its contents- healthy, contains glue like substances. Large intestine and its contents- healthy, contains gas and faeces. Liver- lacerated. Spleen- healthy. Kidneys- congested. Bladder healthy and empty Organs of generation, external and internal External as described. Internal uterus healthy, cavity empty. As per opinion of PW-3 death of deceased was asphyxia as a result of manual strangulation which was ante-mortem and homicidal in nature." 5. P.W.4 is Samra Mura. He deposed that the accused used to quarrel with his wife, Daneswari Sahu and he witnessed the quarrel between the accused and his wife on some occasions. He warned the accused from quarrelling with his wife but on the night of the occurrence he had gone to visit the house of his in-laws. On return, son of accused, Ramon Teli told him that accused had badly assaulted his mother, Daneswari Sahu and made her senseless. In the morning, police came to the house of the accused and when he went there, he found Daneswari Sahu lying on a bed. He came to know from the police that Daneswari Sahu had died. He came to know about the incident from son of the accused and he also stated that deceased used to consume alcohol. 6. P.W.6 is Ashit Dhar. He is the VDP Secretary and was informed by the villagers about a year back that the accused had killed his wife and on going to the place of occurrence found the accused tied with a rope. On query, accused stated he had strangulated his wife for which she died. In his cross-examination he deposed that he did not state before the police that the accused stated to him about strangulating his wife. He also did not state to the police that accused was tied with a rope by the villagers when he came to the place of occurrence. 7. P.W.7, Jogen Bailong deposed that on 28.12.2015, he was in-charge of Teok Police Station. He was informed over the phone that accused had committed murder of his wife, Daneswari Sahu and on investigation, he found that victim was dead and lying on the bed covered with cloth. He recorded the statement of the witness, prepared sketch-map, sent the body for Post Mortem, he arrested the accused and forwarded him to the Court and collected Post Mortem Report. He recorded the statement of the witness, prepared sketch-map, sent the body for Post Mortem, he arrested the accused and forwarded him to the Court and collected Post Mortem Report. He deposed that P.W.2, Sama Urang stated that in apprehension of the accused fleeing from the spot, he tied the accused with a rope and he also stated that Jogeswar Teli, the accused had told him that his wife quarreled with him after consuming liquor so, he killed her by strangulating her. 8. P.W.5, Manoj Orang, stated that on the date of occurrence at about 10:00 P.M. there was a quarrel in the house of the accused but they did not make enquiry as it was a usual thing. At night, the son of the accused came to his residence and informed about the quarrel but he told the son of the accused to go home. On the next morning he found the victim was dead. In his crossexamination, he stated that P.W.4 did not state to him, that son of accused, Ramon Teli came to him and told him that the deceased was badly assaulted by the accused. With the above evidence the learned Additional District Judge opined that there was no eyewitness in the instant case, however, relying on the facts and circumstances of the given case, he came to the conclusion that there was chain of circumstantial evidence which led to inescapable conclusion consistent with the guilt of the accused for awarding his conviction. He has placed reliance on the judgment in Padala Veera Reddy v. State of A.P., (1990) AIR SC 709 , where the Apex Court has held out conditions for convicting accused in cases of circumstantial evidence and he has found that the conditions are fulfilled. The learned Trial Judge has found the following facts and circumstances agitating against the killing of the accused:- "(i) accused and deceased are husband and wife; (ii) both accused and his wife (deceased) was addicted to liquor and has been on frequent quarrels between them; (iii) the deceased was with the accused person at night on the date of occurrence in their residence. (iv) Neighbouring people heard quarrel of the accused person and the deceased at night, but did not went to the residence of the accused person as such types of quarrel always occurred in the residence of the accused person. (iv) Neighbouring people heard quarrel of the accused person and the deceased at night, but did not went to the residence of the accused person as such types of quarrel always occurred in the residence of the accused person. (v) On the next morning, the wife of the accused found death on her bed. (vi) Medical evidence through P.W-3, it is reveals that deceased died due to manual strangulation. (vii) From the post mortem, it reveals that the medical officer found manual strangulation mark on the neck of the deceased. (viii) Evidence of PW-6, independent witness with regard to the extra judicial confession made by the accused that he had killed his wife by strangulating her neck." The above circumstances were sufficient information to fulfill the conditions laid by the Apex Court for conviction of an accused circumstantially. He has also viewed that the provisions of Section 106 of the Evidence Act is applicable in the instant case as it was a case where the accused had special knowledge and it was his burden to explain how death of the victim occurred, which he failed to discharge. Reliance is placed on the case of Shambhu Nath Mehra v. State of Ajmer, (1956) SCR 199 . Furthermore, reliance is placed on the Apex Court in State of Rajasthan Vs. Thakur Singh, (2014) 12 SCC 211 where it is held that "in a case of unnatural death of wife of accused in a room occupied only by both of them, when there is no evidence of anybody else entering the room and the accused has not explained the circumstances about unnatural death of his wife, the principle under Section 106 of the Evidence Act, 1872 was clearly applicable. Their Lordships have held as under: "We find that the High Court has not at all considered the provisions of Section 106 of the Evidence Act, 1872. This section provides, inter alia, that when any fact is especially within the knowledge of any person the burden of proving that fact is upon him."" This being the position, he has come to the conclusion that homicidal death of deceased was committed by the accused and nobody else. This section provides, inter alia, that when any fact is especially within the knowledge of any person the burden of proving that fact is upon him."" This being the position, he has come to the conclusion that homicidal death of deceased was committed by the accused and nobody else. On the issue of lack of motive, he has also placed reliance on Ganeshlal v. State of Maharashtra, (1992) CriLJ 1545 , wherein it was held that :"In circumstantial evidence also when the facts are clear it is immaterial that no motive has been proved. Men do not act wholly without motive. Failure to discover the motive of the offence does not signify the non-existence of the crime. The failure to discover motive by appropriate clinching evidence may be a weakness in the proof of the prosecution case, but it is not necessarily fatal as a matter of law. Proof of motive is never an indispensable fatal as a matter of law. Proof of motive is never an indispensable factor for conviction. The absence of motive, which may be one of the strongest links to connect the chain would not necessarily become fatal provided the other circumstances would complete the chain and connect the accused with the commission of the offence, leaving no room for reasonable doubt, even from the proved circumstances." For reasons recorded above, he has found that the prosecution has proved that the accused is guilty of offence under Section 302 of IPC, which is conclusive and beyond reasonable doubt. 9. Appearing for the appellant, learned Amicus Curiae, Mr. S. K. Agarwal, has contended that there is no eyewitness in the instant case and there is no motive at all seen from the records. Hence, the circumstantial evidence, which are taken into consideration is improper. The prosecution has also failed in its duty to bring forth the eyewitness who is the son of the accused, Ramon Teli who allegedly saw the commission of the offence and reported to the witnesses. There was, hence, total lack of diligence by the prosecution to bring home charge as is required in criminal case. The theory that P.W.6 was told by the accused that he had committed the offence is not at all admissible, given the fact that he has retracted his statement in his cross-examination and therefore, value of his evidence has been demolished. The theory that P.W.6 was told by the accused that he had committed the offence is not at all admissible, given the fact that he has retracted his statement in his cross-examination and therefore, value of his evidence has been demolished. P.W.5, who also makes substantial statements pointing to the criminality of the accused has in his cross-examination not co-operated with the prosecution and has been declared hostile. For all reasons recorded above, there is much room to doubt the prosecution case and the accused should be given benefit of doubt. 10. Learned P.P. appears and submits that the prosecution has discharged its burden to prove beyond the reasonable doubt considering that there is no possibility at all of any other person being involved in the offence. 11. We have considered the submission of the parties at length and on examination of the evidence placed before us, there is no room to doubt that offence was committed by the accused and therefore, we are in agreement with the finding of the learned Additional Sessions Judge with respect to the commission of the offence, however, the evidence which are placed on records does not suggest that the accused is punishable under Section 302 of the IPC. The witnesses examined as prosecution witness have testified that there is the issue of the deceased addiction to liquor and the couple was in the habit of quarrelling. It is exemplified by the fact that P.W.5 had asked the son of the deceased, Ramon Teli to go home when he reported about the incidence without taking any heed since the quarrel between the couple was a regular occurrence. The only thing which we can arrive at of this crime is that it was an offence committed in the heat of argument and anger between the husband and wife and we do not see any evidence which suggest that there was premeditation or any intention to cause death. There is also no evidence to suggest that there are other issues in the matrimonial life of the couple except that there is a clear evidence of constant quarrel between them after the influence of liquor, therefore, we are of the considered opinion that the accused assaulted the victim in the heat of passion in the course of quarrel, which ultimately became fatal and as such, conviction and sentence under Section 302 cannot be sustained. We, therefore, set aside the conviction and sentence of the appellant under Section 302 and convict him for an offence of culpable homicide not amounting to murder punishable under Section 304 Part-1, IPC. Accordingly, we also modify the sentence. Accused is sentenced to 10 (ten) years rigorous imprisonment with a fine of Rs. 15,000/- i/d, to undergo 6 (six) months simple imprisonment. Period already served shall be set off. 12. We appreciate the services rendered by the learned Amicus Curiae, Mr. S. K. Agarwal and direct that he shall be entitled to professional fee of Rs. 7,500/- which shall be paid by the High Court Legal Services Committee on production of a copy of this judgment and order. 13. Send back the LCR to the learned District Judge.