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2020 DIGILAW 40 (GAU)

Krishna Chetry v. State of Assam

2020-01-09

HITESH KUMAR SARMA, SUMAN SHYAM

body2020
JUDGMENT : Hitesh Kumar Sarma, J. 1. This appeal, under Section 374(2) of the Cr.P.C., is preferred against the judgment and order, dated 01-09-2016, passed by learned Sessions Judge, Tinsukia, in Sessions Case No. 140(T) of 2014, convicting the accused-appellant, under Sections 302 of the IPC and sentencing him to undergo rigorous imprisonment for life and to pay fine of Rs. 1,000/-, in default, to suffer rigorous imprisonment for a period of six month. 2. The fact of the case as stated in the FIR as well as unfolded during the trial is that the deceased Manju Chetry was the daughter of the informant (PW 2), Smti. Monomaya Chetry and the accused-appellant is her son-in-law. On 30-05-2011, the accused-appellant, i.e., the son-in-law of the informant informed her, over phone, that in the night of 29-05-2011, her daughter, Manju Chetry died due to burst of stove while she was cooking food. The informant earlier came to know that the deceased was subjected to mental and physical torture by her husband, the accused-appellant. The further fact is that the accused-appellant had told her that the victim died due to bursting of stove while the mother of the accused-appellant told her that the victim committed suicide by pouring kerosene on her and sustained burn injuries. 3. On receipt of the FIR on the above facts, Tinsukia Police Station registered a case, being Tinsukia Police Station Case No. 336/2011, under Section 302 of the IPC and investigated into it. On completion of investigation, charge-sheet against the accused-appellant was laid for the offence punishable under Section 302 of the IPC. 4. The trial of the case commenced after exhausting all required formalities. In this case, prosecution examined as many as 14 witnesses, whereas the defence examined none. The defence plea is of denial. In the statement of the accused-appellant under Section 313 of the Cr.P.C., he has simply denied the allegations made against him to be false. 5. We have examined the records of the learned trial Court including the evidence of the prosecution witnesses and the impugned judgment. 6. We have heard Mr. B.K. Mahajan, learned counsel appearing on behalf of accused-appellant. We have also heard Mr. M. Phukan, learned Additional Public Prosecutor, Assam. 7. The evidence of PW 1, Dr. 5. We have examined the records of the learned trial Court including the evidence of the prosecution witnesses and the impugned judgment. 6. We have heard Mr. B.K. Mahajan, learned counsel appearing on behalf of accused-appellant. We have also heard Mr. M. Phukan, learned Additional Public Prosecutor, Assam. 7. The evidence of PW 1, Dr. Prasanta Borgohain, the autopsy doctor, is that he performed the post mortem examination of the deceased on 30-05-2011 at Tinsukia Civil Hospital, at about 1.45 pm and found as follows: "External appearance: A female dead body of average built, wheatish in complexion, hair black, 60 cm long, partially burnt, wearing only a blue petticoat and covered by a maxi, eyes and mouth closed. Smell of kerosene oil found on the body. Vagina and anus found healthy. Rigor mortis well developed in all the limbs. Injury: Dermo epidermal flame burn injury found in the anterior part of scalp and hair, whole face, neck, chest and upper abdomen upto umbilicus, 15 cm x 10 cm in lower abdomen, both hands completely, back side of the nape of the neck to the middle of the back, both thighs anteriorly and partially, right leg partially in knee joint and calf muscle. Skin peeled off in patches in the body. A few vesicles present which contained fluid. Skin surrounding the injured areas found red with signs of inflammation. Perineum area found spared. Lower part of the back side, buttock, thighs and legs found spared. Stomach contained partially digested food particles. Skull and vertebrae were healthy. Membrane congested. Brain congested. Spinal cord was healthy. Liver, spleen congested. Kidney was healthy. Bladder found empty. Uterus was of normal size. Other organs were normal and healthy. Opinion : In my opinion, death was due to neurogenic shock as a result of dermo epidermal flame burn injury, which was ante mortem and about 60% of total body surface area. Approximate time since death was 10 to 24 hours." 8. From the evidence on record, particularly, the evidence of the autopsy doctor (PW 1), it appears that the deceased died out of burn injuries. The autopsy doctor also smelt kerosene oil on the person of the deceased. There is no dispute at the Bar that the death of the deceased was due to burn injuries. 9. From the evidence on record, particularly, the evidence of the autopsy doctor (PW 1), it appears that the deceased died out of burn injuries. The autopsy doctor also smelt kerosene oil on the person of the deceased. There is no dispute at the Bar that the death of the deceased was due to burn injuries. 9. Now, the question is as to whether the accused-appellant had set fire on the person of the deceased causing the burn injuries resulting in her death. 10. The evidence of the informant (PW 2) is that the victim (deceased) got married with the accused-appellant about 9 years back. Although she stated in her evidence that the victim was subjected to torture due to her failure to meet the demand for property yet she did not lodge any complaint in respect of such demand. 11. PW 3 and PW 4 deposed that the accused-appellant demanded money and property from the victim. But, the fact remains that the incident had taken place after 9 years of their marriage and, admittedly, they did not state before the Investigating Police Officer that there was any demand for dowry by the accused-appellant from the victim and the defence has been able to prove such contradiction by way of cross-examination of the Investigating Police Officer. That apart, the charge against the accused-appellant, is under Section 302 of the IPC and not under Section 304-B of the IPC. Therefore, in the absence of any evidence in respect of above aspects, the prosecution has failed to assign any motive of the accused-appellant for allegedly committing the offence by him. 12. This is an admitted position that there is no eye witness to the occurrence. The PW 2, PW 3, PW 4 and PW 6 have categorically stated that the accusation is made against the accused-appellant only on suspicion for the reason that the accused-appellant and his mother had given two different versions about the cause of the death of the deceased. While the accused-appellant stated before the PW 2 and PW 3 that due to burst of stove, while cooking, the victim sustained burn injuries resulting in her death whereas his mother has stated that the victim had poured kerosene oil on herself. While the accused-appellant stated before the PW 2 and PW 3 that due to burst of stove, while cooking, the victim sustained burn injuries resulting in her death whereas his mother has stated that the victim had poured kerosene oil on herself. The mother of the accused-appellant is not an accused in the case nor has she been cited as witness for which she could not be confronted on facts allegedly stated by her to the prosecution witnesses, aforesaid. 13. The learned Court based the order of conviction of the accused-appellant on circumstantial evidence. It has been noted in the judgment that the deceased was residing with the accused-appellant since after their marriage and on the date of the occurrence, the accused-appellant was very much present in the house and it is not his case that he had gone out of his house, prior to the date of incident and returned only after the incident has occurred. The further circumstance, as indicated in the judgment of the learned trial Court is that the deceased sustained burn injuries inside the house of the accused-appellant. According to the learned trial Court, as the victim was residing with the accused-appellant, he had full opportunity to commit the offence and the accused-appellant having failed to give any plausible explanation as to the circumstances under which his wife died out of burn injuries inside the house, it clearly points out to his guilt. 14. On examination of the evidence on record, it is not found that the prosecution has been able to bring home the fact that at the relevant point of time, the accused-appellant was in his house together with his wife/deceased and no evidence is led to that effect by the prosecution. It has also come out from the totality of evidence on record that the mother of the accused-appellant was also available in their house at the relevant time of occurrence. Therefore, it is not correct to hold that the accused-appellant alone was with the deceased at the relevant time of occurrence and therefore, he is required to give explanation as provided in Section 106 of the Indian Evidence Act. The evidence also shows that the mother of the accused-appellant went to bring an auto to send the injured to hospital at about 12 mid night on the date of occurrence and the accused-appellant with others took her to hospital. The evidence also shows that the mother of the accused-appellant went to bring an auto to send the injured to hospital at about 12 mid night on the date of occurrence and the accused-appellant with others took her to hospital. From such evidence, it can be inferred that the mother of the accused-appellant was present at her house at the relevant time of the occurrence but, as indicated above, she is neither an accused nor a witness in this case. However, the evidence does not reveal that the accused-appellant was present in his house at the time of occurrence. It has been found by the learned trial Court that the accused-appellant could not give any plausible explanation as to the circumstances under which his wife died of burn injuries inside his house. 15. The provision of Section 106 of the Evidence Act itself are unambiguous and categorical in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, in the instant case, the accused-appellant is required to give an explanation as to the death of his wife/deceased if he was in the house. The law is settled in view of the decision of the Hon'ble Supreme Court in State of Rajasthan v. Kashi Ram, reported in (2006) 12 SCC 254 , that Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. Therefore, we have to see whether in the instant case, the prosecution has been able to discharge its burden to prove that the accused-appellant was present in his house at the time of the occurrence. 16. As already discussed, the prosecution has not been able to establish that the accused-appellant was at his home at the relevant time of the occurrence and no evidence to that effect is at all led by the prosecution. Therefore, Section 106 of the Indian Evidence Act is of no aid to the prosecution. 17. 16. As already discussed, the prosecution has not been able to establish that the accused-appellant was at his home at the relevant time of the occurrence and no evidence to that effect is at all led by the prosecution. Therefore, Section 106 of the Indian Evidence Act is of no aid to the prosecution. 17. We have already indicated above that the entire prosecution case is, admittedly, based on suspicion. The accused-appellant is suspected to have committed the offence. There is no such evidence brought on record that the accused-appellant had any role in sustaining the burn injuries by the deceased resulting in her ultimate death. 18. The evidence of PW 1, PW 2, PW 3, PW 4 and PW 6 are not found to have thrown any light on the facts of the case and, therefore, their evidence are not specifically discussed. The evidence of PW 5 is evidently hearsay since he had only heard about the occurrence and there is no evidence as to from whom he heard about the occurrence. 19. The learned Additional Public Prosecutor, Mr. Phukan, also fairly agreed that the prosecution has not been able to substantiate the charge against the accused-appellant by adducing evidence implicating the accused-appellant beyond all reasonable doubt. 20. Such being the evidence on record, this Court is of the view that the prosecution has not been able to prove the charge under Section 302 of the IPC against the accused-appellant, beyond all reasonable doubt, and therefore, the conviction recorded by the learned trial Court and the consequent sentence imposed upon the accused-appellant do not appear to have been based on evidence on record. 21. The appeal is accordingly allowed. The judgment of the learned trial Court is set aside. 22. The appellant be released immediately. Registry to issue release order. 23. Send down the LCR along with a copy of this judgment and order.