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2020 DIGILAW 301 (JHR)

Lakhiram Hembrom v. State of Jharkhand

2020-02-13

AMITAV K.GUPTA, RAJESH KUMAR

body2020
JUDGMENT : The appeal is directed against the judgment dated 09.02.2011 of Addl. Sessions Judge, F.T.C.-V, Godda, in Sessions Case No.19 of 2009, whereby the appellant has been convicted for the offence under Section 302/34 of the I.P.C., and sentenced to undergo imprisonment for life and a fine of Rs.1,000/-, in default thereof, to undergo rigorous imprisonment for three months. 2. The prosecution case as unfolded in the Fardbeyan of the informant-Deoram Hansda (P.W.5), is that his daughter, Salma Hansda was married to Lakhiram Hembrom in the year 2008. His daughter alongwith her husband were residing in the house of the maternal uncle of Lakhiram Hembrom. It is stated that on 30.12.2008 his daughter and her husband had come to his house, and the family members of the matrimonial home of his daughter had asked her to return on the same day. However, on his request his daughter stayed at her ‘maike’ (parental home) at night and went back to her matrimonial home on 31.12.2008. It is stated that on 01.01.2009 at 7.00 a.m., Sunil Kisku and Bablu Kisku came and informed him about the death of his daughter, whereupon, he alongwith his family members, accompanied by some villagers, went to the matrimonial home of his daughter at Chotasripur and saw his daughter lying dead on the cot and there was a black mark on her neck. The informant has alleged that Lakhiram Hembrom alongwith his maternal uncles Mistry Kisku and Chunda Kisku had killed his daughter. 3. On the basis of the fardbeyan, Boarijore P.S. Case No.01 of 2009 (corresponding to G.R. No.02/09) was registered under Section 302/34 of the Indian Penal Code (for short I.P.C.). On completion of investigation charge-sheet was filed and cognizance was taken whereafter the case was committed to the court of sessions. The sessions court read over and explained the charge to the accused-appellant to which he pleaded not guilty and claimed to be tried. 4. During trial the prosecution examined altogether seven witnesses, namely P.W.1-Churki Kisku-the aunt of the deceased, P.W.2-Shanti Hansda, P.W.3-Babulal Hembrom and P.W.4-Kunwar Hansda are the sister and brothers of the deceased, P.W.5-Deoram Hansda is the father of the deceased, P.W.6-Dr. Dilip Kumar Choudhary-the doctor has proved the post-mortem report-Ext.1, P.W.7-Janak Singh Munda is one of the Investigating Officer. He has proved the inquest report-Ext.2. 5. Dilip Kumar Choudhary-the doctor has proved the post-mortem report-Ext.1, P.W.7-Janak Singh Munda is one of the Investigating Officer. He has proved the inquest report-Ext.2. 5. On the basis of the evidence on record, the court below convicted the appellant by the aforementioned impugned judgment. 6. Mrs. Rashmi Kumar, learned counsel for the appellant and Mrs. Darshana Poddar Mishra, the amicus curiae, have submitted that post-mortem report reveals that the doctor did not find any external injury or mark of violence on the body of the deceased. The ligature mark around the upper part of the neck was oblique non-continuous bruise more prominent on right side about ½” in width. On dissection, the muscles were found stretched and squeezed. While referring to “Modi’s Medical Jurisprudence”, learned counsels have submitted that as per the opinion of the doctor (P.W.6) the cause of death was asphyxia due to hanging. It is submitted that in cross-examination the doctor has admitted that in most cases hanging is suicidal. It is canvassed that the court below has not considered the medical evidence and committed manifest error in passing the impugned judgment. It is submitted that the court below has convicted the appellant on surmises and conjectures without appreciating the essence of provisions of Section 106 of the Evidence Act. 7. Learned Amicus Curiae has referred to the judgment of the Apex Court in Nagaraj vs. State represented by Inspector of Police, Salem Town, Tamilnadu reported in 2015 (4) SCC 739 , and submitted that it is settled proposition that the purpose of recording statement of the accused under Section 313 Cr.P.C., is intended for the benefit of the accused, the corollary being to assist the court for just decision of the case. It is submitted that the purpose of recording the statement is not to nail the accused but to comply with the most salutary and fundamental principles of natural justice. 8. It is contended that from the testimony of the Doctor, it is abundantly clear that death was due to suicidal hanging and the witnesses examined by the prosecution have not stated that the deceased was harassed or subjected to cruelty in connection with demand of dowry soon before her death and just because the deceased died in unnatural circumstances it cannot be deduced that she met homicidal death. 9. It is submitted that in Subramaniam vs. State of Tamilnadu and Anr. 9. It is submitted that in Subramaniam vs. State of Tamilnadu and Anr. reported in 2009 (14) SCC 415 , it has been observed that the burden may lie on the husband to explain the circumstances of death of his wife but such circumstances cannot be held to be conclusive and in the absence of any mark of injury or violence on the body of the deceased, the husband cannot be held guilty for the death of the deceased. It is canvassed that suspicion however strong cannot take the place of proof and it cannot be the ground for convicting a person in the absence of any corroborative evidence. It is submitted that in the instant case the medical evidence falsifies and creates a grave doubt regarding the case of the prosecution that the deceased died a homicidal death and the appellant deserves to be acquitted of the charge. 10. Learned APP has supported the judgment and argued that under Section 106 of Evidence Act the onus was upon the accused to explain the reason and cause for the unnatural death of his wife and no explanation has been given by the appellant in his statement under Section 313 Cr.P.C. It is argued that the impugned judgment does not suffer from any perversity or illegality. 11. Heard. On perusal of the post-mortem report and the testimony of P.W.6 (the Doctor) who was the member of the Medical Board, it is evident that no external injury or mark of violence was found on the body of the deceased save and except a ligature mark on the neck. In the opinion of the Medical Board the cause of death was asphyxia due to hanging. The trial court has proceeded on the assumption that under Section 106 of the Evidence Act, the onus was upon the appellant/accused to explain the circumstances leading to the unnatural death of his wife, however, the trial court has failed to appreciate that the settled legal position is that Section 106 of the Evidence Act does not absolve the prosecution from the primary burden to establish and prove its case beyond all reasonable doubt by adducing the evidence to bring home the charge that the accused was guilty for committing the murder of his wife. In this context it is pertinent to note that in Sawal Das v. State of Bihar (1974) 4 SCC 193 it has been observed by the Supreme Court, in para-10, “10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused.” 12. In the backdrop of the settled legal position and on perusal of the testimony of the witnesses it is evident that P.Ws.1, 2, 3, 4, 5 and 6, who are the aunt, sister, brother and father of the deceased have not deposed that the deceased had expressed her grievance or complained to them that her husband and in-laws were harassing or torturing her. It is not disputed that the deceased had come with the accused to her parental home (maike) and even on that day she had not expressed any apprehension of threats to her life at the hands of the appellant. The informant has alleged that since his daughter (since deceased) had stayed the night over at his place and had not abided the order of the appellant, therefore the appellant alongwith his maternal uncles had killed his daughter. 13. It is abundantly clear that the prosecution case is based on suspicion and the probability cannot be ruled out that because the deceased had not abided the orders of her husband, therefore there might have been an altercation between the appellant and his wife (deceased) due to which the deceased might have been anguished and taken the extreme step of committing suicide by hanging herself. 14. In Subramaniam v. State of T.N., (2009) 14 SCC 415 ; in a case of dowry death, the Supreme Court has observed that the fact of living together is a strong circumstance but that by alone, in absence of any evidence of violence on the deceased, cannot be held to be a conclusive proof that the death was homicidal. There must be some evidence to arrive at a conclusion that the husband was alone responsible for the death of his wife. 15. There must be some evidence to arrive at a conclusion that the husband was alone responsible for the death of his wife. 15. It is evident that the prosecution has not adduced any clinching evidence to prove that the appellant/accused was responsible for the death of his wife and the prosecution has not been able to discharge the burden of proving its case beyond reasonable doubt. The only evidence is that the appellant/accused was living with the deceased wife under the same roof. Taking into account the evidence on record it cannot be inferred that the burden under Section 106 of the Evidence Act, 1872 lay on the appellant/accused to explain the circumstances leading to the unnatural death of his wife. 16. It is well settled principle that in a case of circumstantial evidence motive provides an important link though it may not be of much significance in a case of direct evidence. In State of U.P. v. Kishanpal (2008) 16 SCC 73 , the importance of motive in cases of circumstantial evidence was deliberated and elaborately discussed and it has been observed that the absence of motive, in a case based on circumstantial evidence, is a factor that weighs in favour of the accused. It is abundantly clear from the evidence on record that the prosecution has not been able to adduce any cogent evidence to establish that the appellant/accused had a motive to commit the murder of the deceased. 17. On perusal of the statement of Section 313 Cr.P.C, it appears that no incriminating evidence or circumstance has been put to the accused or explanation sought regarding the circumstances leading to death of the deceased. In fact, only two cryptic questions has been put to the accused person and putting such cryptic question, under section 313 Cr.P.C, has definitely prejudiced the appellant. In Pal Singh and Another Vs. State of Punjab reported in (2014) 11 SCC 508 , the Supreme Court has held that once the accused has been able to show that serious prejudice was caused to him defeating the right available to him, then the accused is entitled to seek benefit of such prejudice. 18. At the cost of repetition it is necessary to reiterate that as per medical evidence no mark of violence and injury found on the body of the deceased. 18. At the cost of repetition it is necessary to reiterate that as per medical evidence no mark of violence and injury found on the body of the deceased. The Doctor (P.W.1) has stated that the cause of death was asphyxia due to hanging and in cross-examination, the Doctor has admitted that the possibility of suicide cannot be ruled out since no external marks were seen on the body of the deceased. 19. In Javed Abdul Rajjaq Shaikh v. State of Maharashtra, (2019) 10 SCC 778 the Supreme Court, while appreciating the difference between hanging and strangulation, observed that in the case of hanging, fracture of the larynx and trachea is very rare, and that too, it may be found in judicial hanging. On the other hand, fracture on the larynx, trachea and hyoid bone indicates strangulation. 20. The informant and the sister, brother and aunt of the deceased have testified that the appellant and his maternal uncle were present in the house when they reached at the house of the appellant in village Chotasripur. No plausible explanation has been brought fourth by the prosecution for non-examination of independent witnesses of village Chatasripur. Even witnesses namely Sunil Kisku and Bablu Kisku, who were the persons to give information to the informant and his family members regarding the death of the deceased, have not been examined by the prosecution. 21. Thus on analysis of the evidence on record and the discussion made hereinabove, a grave shadow of doubt is cast on the prosecution. The prosecution has failed to prove the charge under Section 302/34 of the Indian Penal Code against the accused/appellant beyond all reasonable doubt, accordingly appellant/accused is entitled to the benefit of doubt, and is hereby, acquitted of the charge for the offence under Section 302/34 of the Indian Penal Code. The judgment dated 09.02.2011 passed by Addl. Sessions Judge, F.T.C.-V, Godda, in Sessions Trial Case No.19 of 2009 is, hereby, set aside. The appellant is directed to be released forthwith from jail custody, if not wanted in any other case. 22. In the result the appeal is, hereby, allowed. 23. At this stage, we would like to acknowledge our appreciation for the assistance rendered by Mrs. Darshana Poddar Mishra, the Amicus Curiae. The High Court Legal Services Committee shall pay the remuneration to the learned amicus curiae as per prescribed rules and regulations.