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2020 DIGILAW 507 (GAU)

Shambu v. State of Mizoram

2020-05-19

MICHAEL ZOTHANKHUMA, NELSON SAILO

body2020
JUDGMENT : Nelson Sailo, J. 1. Heard Mr. Vanlalnghaka, the learned Amicus Curiae as well as Mr. C. Zoramchhana, the learned Public Prosecutor, Mizoram appearing for the State respondents. 2. This is an appeal against the Judgment dated 27.9.2018 filed by the appellant against his conviction under Section 302 of the IPC and also the order of Sentence dated 10.10.2018, by which the appellant was convicted to undergo Rigorous Imprisonment for life and to pay fine of Rs. 3,000/- and in default, imprisonment for a period of three months. 3. The case of the prosecution in brief is that on 18.09.2016, an FIR was received from Zosangvela (PW1) to the effect that in the morning of the same day, his sister Lalrinzovi who is the wife of the appellant was found dead in her residence. She sustained burn injuries all over her body and it was later learned that she was intentionally burnt by the appellant using kerosene oil on the night of 16.9.2016. Accordingly, Kawnpui PS Case No. 36/2016 dated 18.09.2016 under Section 302 IPC was registered and the case investigated into. During the course of investigation, the place of occurrence was visited and the statement of the complainant recorded. Certain materials for examination in a Forensic Science Laboratory (FSL) were also collected and sent. Consequently, the Investigating Officer having found a prima facie case against the appellant filed the chargesheet before the Court below and thereafter the learned Judge, Fast Track Court, Kolasib framed the charge against the appellant under Section 302 IPC by reading over and explaining to him the charge in a language known to him. The appellant pleaded not guilty to the charge and accordingly, trial against the appellant commenced. 4. During the trial proceedings, the prosecution examined as many as 8 prosecution witnesses to prove the charge against the appellant while the appellant did not examine any witness in his defence. After the closure of the evidence of the parties, the appellant was examined under Section 313 CrPC and thereafter, upon hearing the learned counsel for the rival parties, the Trial Court passed the impugned Judgment and Order against the appellant convicting and sentencing him in the manner as already stated herein above. 5. Mr. Vanlalnghaka, the learned Amicus Curiae submits that the Investigating Agency conducted the investigation in a most perfunctory manner. 5. Mr. Vanlalnghaka, the learned Amicus Curiae submits that the Investigating Agency conducted the investigation in a most perfunctory manner. Referring to the FIR filed by the complainant dated 18.09.2016, the learned Amicus Curiae submits that the time of receiving the information is given as 4.30 pm whereas in the inquest report, the place and time given was Serkhan 1.30 am. He submits that this goes to show that even before the FIR was filed, the investigating agency already completed the inquest over the dead body of the victim. For this reason, Mr. Vanlalnghaka, the learned Amicus Curiae submits that the version of the prosecution implicating the appellant to the alleged crime is rendered to be most unreliable. The learned Amicus Curiae further submits that the person who registered the FIR also turned out to be the Investigating Officer and therefore, even for this reason alone, the entire investigation is vitiated and the impugned Judgment and Order liable to be set aside. 6. The learned Amicus Curiae by referring to the chargesheet submitted by the Investigating Officer submits that as many as 10 different samples were drawn from the scene of the alleged crime and sent for FSL examination. But however, the FSL report prepared and sent on 28.09.2016 only contained reports on two biological exhibits. The result of the two biological exhibits only shows that semen was not detected from the stain marked as Exhibit-A and that Exhibit-B was found to be of blood group 'A'. He submits that this by itself is hardly sufficient to even implicate the appellant on the alleged crime let alone to convict him on the charge framed. 7. Mr. Vanlalnghaka, the learned Amicus Curiae by referring to the confessional state-ment made by the appellant under Section 164 of the CrPC also submits that the victim dared the appellant to burn her and as he was intoxicated at the relevant time, he took his lighter and lit it up near her ankle and all of a sudden, the victim became engulfed with flames. The appellant confessed that he did not know whether the victim had already poured kerosene on herself. On seeing her burn, he began pouring water on her and even covered her with a wet sack. She did not succumb from the burns she sustained even the next day and she refused to be taken to hospital. The appellant confessed that he did not know whether the victim had already poured kerosene on herself. On seeing her burn, he began pouring water on her and even covered her with a wet sack. She did not succumb from the burns she sustained even the next day and she refused to be taken to hospital. Subsequently, on 18.09.2016 (Sunday) at around 2.00 am, she expired. The learned Amicus Curiae further submits that assuming for the sake of argument but without admitting that the appellant was responsible for the death of the victim, the same being unintentional, the learned Trial Court could not have convicted him under Section 302 IPC since there was no intention on his part to burn his wife and therefore, his action would at the most only attract Section 304 IPC. 8. The learned Amicus Curiae to conclude his submission submits that in order to convict an accused of an offence under Section 302 IPC, it is the bounden duty of the prosecution to prove the case against the accused with proof beyond reasonable doubt. However, in the instant case, the prosecution has failed to discharge their burden and as such, the impugned Judgment and Order is liable to be set aside and the appellant acquitted from the charge. 9. Mr. C. Zoramchhana, the learned Public Prosecutor on the other hand submits that the learned Trial Court did not commit any error in convicting and sentencing the appellant Re-ferring to the confessional statement made by the appellant, the learned Public Prosecutor, submits that there is clear admission on the part of the appellant of having burnt his wife and therefore, in absence of any evidence to the contrary, the impugned Judgment and Order is sustainable. The learned Public Prosecutor referring to the evidence of PW4 submits that he was the first person to go to the place of occurrence and witness the prevailing condition of the appellant and the victim in the early morning of 18.09.2016. The learned Public Prosecutor submits that PW4 stated under Oath that when he entered the hut in which the appellant and his wife were staying, he saw him lying on the floor and told him that he killed his wife and he was also trying to kill himself by consuming Glycel. The learned Public Prosecutor submits that PW4 stated under Oath that when he entered the hut in which the appellant and his wife were staying, he saw him lying on the floor and told him that he killed his wife and he was also trying to kill himself by consuming Glycel. The deceased was covered with a cloth and when he opened the cloth, he found her to be already dead. He then rushed back home to inform his relatives about the incident The learned Public Prosecutor, therefore submits that the evidence of PW4 clearly corroborates the confessional statement made by the appellant himself and therefore under the facts and circumstances, the learned Trial Court rightly convicted and sentenced the appellant under Section 302 IPC. The learned Public Prosecutor in this connection relies upon the case of Ram Kishan Singh Vs. Harmit Kaur & Anr. reported In : AIR 1972 SC 468 . He submits that a statement under Section 164 of the CrPC is not a substantive evidence and it can be used to corroborate the statement of a witness. He submits that the ratio laid down by the Apex Court is only applicable to the instant case as well and under the facts and circumstances, the appeal preferred by the appellant is without any merit and may be dismissed. 10. We have heard the submissions made by the learned counsels for the rival parties and we have also perused the lower court record that was requisitioned from the Court below. 11. After completion of the investigation, charge sheet was filed by the Investigating Officer on 14.12.2016, on which date, the appellant was produced before the Chief Judicial Magistrate, Kolasib. The said Court by following the procedure laid down under Section 164 of the CrPC recorded the confessional statement of the appellant. The Court also gave the appellant three hours reflection time by keeping him under the supervision of the Court's staff. The confessional statement of the appellant may be reproduced here in below for ready perusal:- "On 16.09.2016 (Friday), I took salary from my employer. My wife and I went to Aizawl and we bought clothes and mobile phone for her. We also bought 1 kg of chicken and waited for a vehicle at Bawngkawn. My wife Lalrinzovi bought 3 bottles of alcohol from where we waited for a vehicle. My wife and I went to Aizawl and we bought clothes and mobile phone for her. We also bought 1 kg of chicken and waited for a vehicle at Bawngkawn. My wife Lalrinzovi bought 3 bottles of alcohol from where we waited for a vehicle. At around 5:00 pm, we headed for Serkhan by sumo. Before I stated proceeding towards the cowshed, my wife made me drink 4 glasses of alcohol. I went to cleanup the cow dung from the shed. My wife came after a while with a liquor however she returned home as I did not allow her to drink in the cow shed. While I returned back home, my wife was still drinking and in her drunken mood she repeatedly asked me to set her on fire on 4/5 occasions. As I was drunk too, I set fire from her leg and the fire immediately spread all over her body. I do not know if she had already poured kerosene on her body before. I was deeply worried and I poured water all over her body. I even covered her body with a wet sack. She did not die immediately and she was conscious even on the next day. She refused going to the hospital despite my suggestion to go there. As I was extremely scared and worried, I decided to consume certain amount of pesticide which was purchased by my employer. At around 7:00 am, my employer's son Lalthafamkima came and called me from outside. He then entered our home and on seeing our situation, he called other villagers from our village." 12. From the above abstract, it may be seen that the appellant on being prompted by the deceased set fire upon her from above her ankle and immediately the flame spread all over her body. On seeing this, the appellant panicked and tried to put out the flame by pouring water and covering the body of the victim with a wet sack. Though she was conscious even on the next day, the appellant did not take her to the hospital as according to him, his wife refused to be taken to the hospital. 13. On seeing this, the appellant panicked and tried to put out the flame by pouring water and covering the body of the victim with a wet sack. Though she was conscious even on the next day, the appellant did not take her to the hospital as according to him, his wife refused to be taken to the hospital. 13. PW1 who is the author of the FIR in his examination-in-chief stated that he knows the appellant who stood before the Court and that on the morning of 18.09.2016, the deceased who was his sister was found dead inside her residence at Serkhan and he later learned that she was intentionally burned by her husband by using kerosene oil on the night of 16.9.2016. He accordingly submitted an FIR to the Kawnpui PS on 18.9.2016 for taking necessary action In his cross examination, he stated that he came to know about the incident indirectly through some persons and that he did not go to the police station to submit the FIR and that he did not know the con-tent of the FIR. 14. PW2 in his examination-in-chief, deposed that he knows the accused standing before the Court and that on the night of 16.9.2016, the deceased was intentionally burnt by her husband by using kerosene oil. The police personnel seized the kerosene oil which the accused used for burning his wife, the suspected poisonous substance Glycel, the burnt clothing of the victim, suspected poison on the cup, vaginal swabbing of the victim and the fluid from the victim's mouth. Since he was present at the relevant time, he put his signature in the seizure memo and on the inquest report. In his cross examination, he reiterated what he stated in his examination-in-chief. 15. PW3 is also one of the seizure witness who put his signature in the seizure memo. His deposition in the examination-in-chief as well as in the cross examination are more or less similar with that of the deposition of PW2. 16. PW4, Sh. Lalthafamkima as already stated earlier was the first person to visit the place of the incident. He made the following deposition in his examination-in-chief:- "On Oath I know the accused who is standing here before the court today. 16. PW4, Sh. Lalthafamkima as already stated earlier was the first person to visit the place of the incident. He made the following deposition in his examination-in-chief:- "On Oath I know the accused who is standing here before the court today. On 18.09.2016 @7:00 AM, when I am going to our cattle firm to collect milk from our labour Shambu and when I enter their hut Shambu was lying on the floor and he told me that he killed her wife Lalrinzovi and he was also killing himself (trying to commit suicide) by drinking glycel. Lalrinzovi was covered by cloth and when I open the cloth I found out that she was already dead. Then I hurriedly ran back home and told my relatives about the incident. Then I went back to our cattle hut alongwith my relatives and after we reach the PO and after this we contact Kawnpui PS through telephone and after a while the police personnel react the spot and after this we took both Shambu and his wife to the Lungdai PHC for medical examination." 17. The above PW4 in his cross examination besides stating that he was not present at the place of incidence on 16.9.2016 reiterated what he had stated in his examination-in-chief. 18. PW5 Dr. Zairemmawii who conducted post mortem examination upon the deceased in her examination-in-chief stated that the body of the deceased was brought to Lungdai PHC for post mortem examination on 18.9.2016 accompanied by police personnel and relatives of the victim. Upon examining the body, she prepared a report to the effect that the deceased suffered (First degree bum) and that 90% burn and blisters were found all over her body. She deposed that the cause of death was due to the deceased having sustained 90% burn. She further deposed that she also examined the appellant who was alleged to have consumed poison. How-ever, on examining him, she found him fit to be kept in custody. Her testimony during cross examination was neither shaken nor falsified by the defence. 19. PW7, Sh. Lalchhanzova, Assistant Director, FSL in his examination-in-chief stated that semen was not detected from the stains of the vaginal swap of the victim and the blood sample of the accused was group 'A' as per the report sent by them on 28.09.2016 to the Addl. S.P. Kolasib District. 20. Sh. 19. PW7, Sh. Lalchhanzova, Assistant Director, FSL in his examination-in-chief stated that semen was not detected from the stains of the vaginal swap of the victim and the blood sample of the accused was group 'A' as per the report sent by them on 28.09.2016 to the Addl. S.P. Kolasib District. 20. Sh. H. Lalchawimawia, Sub-Inspector of Police was examined as PWS. In his examination-in-Chief, he deposed that after receiving the FIR from Zosangvela in the morning of 18.09.2016, a case was registered and he was endorsed to investigate the case. The place of occurrence was visited and the appellant was arrested. On being interrogated, the appellant admitted that on the night of 16.09.2016, he and his wife had a quarrel at their residence at Serkhan and he then lifted one plastic bottle containing kerosene oil and poured it on her body and then set her on fire by a lighter. Later the appellant's wife succumbed to her injuries in their residence and he attempted to commit suicide by consuming Glycel. He also deposed that the appellant in the presence of two reliable witnesses made a disclosure that he intentionally burn this wife with kerosene oil. Although, PW8 was cross examined by the defence counsel but the statement made by him in his examination-in-chief were neither falsified nor demolished. 21. From the evidence led by the prosecution, it can be seen that the FIR was filed in the morning of 18.09.2016, as stated by the PW4 and PW8. Although the format of the FIR shows the time of information received as 4.30 pm on 18.09.2016, the same does not vitiate the story of the prosecution inasmuch as the filling up of the FIR form and other formalities could very well have been done only in the evening after the place of occurrence was visited and all necessary formalities carried out. What can be noticed is that the appellant made a confessional statement before the Chief Judicial Magistrate, to the effect that it was he who lit his wife with a help of the lighter from her ankle. Further, all the materials sent for examination in the FSL were duly examined and the results of such examination sent to the Addl. Superintendent of Police, Kolasib District, Kolasib on 20.12.2016 by the Directorate of FSL. Further, all the materials sent for examination in the FSL were duly examined and the results of such examination sent to the Addl. Superintendent of Police, Kolasib District, Kolasib on 20.12.2016 by the Directorate of FSL. Exhibit-G which amongst others area plastic bottle containing suspected flammable liquid (kerosene oil) marked as C (KLB)-416(E) by the FSL and the same was found to be a flammable liquid. Exhibit-H of a plastic container containing burnt clothing of the victim marked as C (KLB)-416(F) was also found to contain flammable liquid. Likewise exhibits B, C and J which were all marked as C (KLB)-416 (A), (B) and (H) were all found to contain toxic/poisonous substances (Glycel). 22. The appellant on being examined under Section 313 CrPC although denied having burn this wife intentionally with kerosene oil but he admitted the fact that he attempted to commit suicide by consuming some poisonous substance (Glycel). Although, the statement made by an accused person under Section 313 CrPC cannot be the basis for his conviction but the fact remains that his admission for having attempted to commit suicide by consuming (Glycel) is also what he had stated in his confessional statement under Section 164 CrPC and further corroborated by the evidence of PW4 and PW8. This apart, the post mortem report also corroborates to the fact that the deceased suffered First degree burn and that she died of burn injuries sustained all over her body which was to the ex-tent of 90%. The statement made by the appellant in his confessional statement wherein he admitted of having burn this wife has also not been retracted by him and as already noticed, the same is corroborated by PW4 and PW8 apart from the post mortem examination. The Apex Court in Ram Kishan Singh (Supra) has held that the statement made under Section 164 CrPC can be used to corroborate the statement of a witness and also to contradict a witness. In the instant case, the confessional statements of the appellant is clearly corroborated by the evidence of the prosecution witnesses and therefore, the Apex Court decision is found to be applicable to the instant case. 23. In the instant case, the confessional statements of the appellant is clearly corroborated by the evidence of the prosecution witnesses and therefore, the Apex Court decision is found to be applicable to the instant case. 23. From a thorough analysis of the materials available on record, we are of the considered view that the prosecution is able to bring home the guilt of the accused/appellant on the charge with proof beyond reasonable doubt Accordingly, we do not find any infirmity in the impugned judgment and order and thus finding no merit in the appeal, the same is dismissed. The LCR only being photo copy of the original, the same need not be sent back. 24. For the valuable assistance rendered by Mr. Vanlalnghaka, the learned Amicus Curiae, he shall be entitled to a remuneration of Rs. 9,000/- (Rupees nine thousand) only which shall be paid by the Mizoram State Legal Services Authority on production of a copy of this order.