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2020 DIGILAW 57 (GAU)

Bandana Nath v. State of Assam

2020-01-21

HITESH KUMAR SARMA, SUMAN SHYAM

body2020
JUDGMENT : SUMAN SHYAM, J. 1. Heard Mr. D.K. Dey, learned Amicus Curiae, appearing on behalf of the appellant. We have also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam, appearing for the respondent no. 1. None has appeared for the respondent no. 2 despite service of notice. 2. The sole appellant has been convicted under Section 302 of the Indian Penal Code (IPC) for committing murder of her mother-in-law Tulu Nath and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 2000/-. 3. The prosecution case, in brief, is that on 12/12/2014, Sri Hemanta Nath i.e. the son of the deceased, had gone to another village to attend a marriage leaving behind his mother and daughter at home. Next morning, he received information that his mother has died under suspicious circumstances. On his return back home on 13/12/2014, Hemanta Nath found the body of his deceased mother lying on the bed. On 13/12/2014, an ejahar was lodged by the son of the deceased alleging that his wife Bandana Nath, who had an illicit relationship with the co-accused Darpan Deka, had together killed his mother by gagging her mouth and pressing her neck while she was sleeping on the bed. 4. Based on the FIR dated 13/12/2014, Baihata Chariali P.S. Case No. 290/2014 was registered under Section 302/34 IPC against both the accused persons. During the course of investigation, the Police had seized a pillow which was on the bed and recorded the statement of the witnesses. Inquest was conducted on the dead body of the deceased whereafter, the body was sent to the Gauhati Medical College Hospital for post-mortem. Upon completion of investigation, the Investigating Officer (IO) had submitted charge-sheet against both the accused persons. Accordingly, formal charge was framed against the accused who had pleaded innocence. As such, the matter went up for trial. 5. There is no eye witness in this case and the prosecution case is based on circumstantial evidence. In order to bring home the charge, the prosecution side had examined as many as six witnesses and exhibited documents and material exhibits. 6. The statement of the accused persons was recorded under Section 313 Cr.P.C. Both the accused had denied the charge brought against them. The accused persons had, however, declined to lead evidence in their defense. 7. In order to bring home the charge, the prosecution side had examined as many as six witnesses and exhibited documents and material exhibits. 6. The statement of the accused persons was recorded under Section 313 Cr.P.C. Both the accused had denied the charge brought against them. The accused persons had, however, declined to lead evidence in their defense. 7. PW-1 Sri Hemanta Nath, i.e. the son of the deceased, is the informant in this case and in his testimony, the witness had deposed that on the day of the incident, he was not at home as he had gone to attend marriage of his Uncle's son to a nearby village accompanied by his elder daughter. That night, the accused, along with his younger daughter, was at home with his mother (deceased). On the following day, his co-villagers had informed him over phone that his mother was no more. Immediately, there-after, the PW-1 had returned home and found his mother lying on the bed with froth coming out of her mouth and the chest and neck had swollen up. PW-1 had also stated that his wife Bandana had an illicit relationship with the co-accused Darpan Nath and he did not have any physical relationship with her for 7/8 years. According to the PW-1, he used to stay with his mother along with his two daughters and his wife used to stay alone closing her room from inside. PW-1 had also stated that the accused appellant had soaked a "gamocha" (towel) in a bucket and killed his mother by pressing her neck with the gamocha. The witness had further deposed that the accused persons had confessed to killing his mother by pressing her neck with a "gamocha" and that he had lodged the FIR in this case on 13/12/2014 out of suspicion since the co-accused Darpan was once found in the room of his wife. PW-1 had also deposed that there was no proof in this case except confession made by the accused persons before the Police. During his cross examination, PW-1 has stated that the public had suspected that the accused persons had killed his mother. PW-1 has also deposed that his mother was a nurse and was suffering from hypertension. In his cross examination, PW-1 had stated that he did not mention before the Police about his wife keeping the "gamocha" soaked. 8. During his cross examination, PW-1 has stated that the public had suspected that the accused persons had killed his mother. PW-1 has also deposed that his mother was a nurse and was suffering from hypertension. In his cross examination, PW-1 had stated that he did not mention before the Police about his wife keeping the "gamocha" soaked. 8. PW-2 Sri Keshab Nath has deposed that the informant is the son of his aunt. His house is about 10/12 KM away from the house of the accused. The witness has stated that the incident had taken place on 12/12/2014 and one Kanika Deka had informed him over phone that his aunt had died in the night. He immediately went to the house of his aunt (deceased) and saw her lying in the bed with froth coming out from her mouth. According to PW-2, a suspicion had arisen on the accused as he had seen quarrel in the family. PW-2 had also stated that the accused Bandana had earlier attempted to cut his aunt. The witness has also stated that a tablet was lying in the mouth of his aunt and he had heard that accused Bandana and Darpan had confessed in the Police Station to have killed his aunt. During his cross examination, PW-2 has stated that he had not seen the pillow and he does not know whether the police had seized the tablet or not. PW-2 has also stated that he did not state before the police that accused Bandana had made an attempt to cut his aunt with a "dao". 9. PW-3 Dulal Deka is the nephew of the informant. He had stated that the deceased was his grandmother and his house was about 5 KMs away from the house of the deceased. The incident had taken place on 13/12/2015 and he was at home on that day. At about 8.30 -9 a.m. he had come to know that his grandmother was no more. The witness had deposed that he immediately came to the house of his grandmother and found her lying dead on her bed and saw that froth was coming out through her mouth. PW-3 had also stated that there were marks of injury caused by nails in the neck and face of the deceased. According to the PW-3, accused Bandana along with the younger daughter was with his grandmother in the previous night. PW-3 had also stated that there were marks of injury caused by nails in the neck and face of the deceased. According to the PW-3, accused Bandana along with the younger daughter was with his grandmother in the previous night. PW-3 had also stated that the age of the younger daughter was about 5 years and she was sleeping with his grandmother but she could not comprehend as to what had happened as she was asleep. PW-3 had further stated that one week prior to the incident, accused Bandana had made an attempt to cut his grandmother with a "dao" and he had resisted the same. The witness had also deposed that he had heard from Keshab Nath that both the accused persons had confessed their guilt before the Police and his father had also heard the accused persons confessing their guilt before the Police. Police had recorded the statement of his father. During his cross examination, PW-3 has stated that he had no personal knowledge with regard to the death of his grandmother and he had just seen her body after his arrival. PW-3 had also deposed that he did not state before the Police that about one week back when he had visited the house of his grandmother, accused Bandana had made an attempt to cut her with a "dao" to which, he had resisted. 10. PW-4 is the doctor who has conducted the post-mortem examination on the body of the deceased on 13/12/2014. The doctor has opined that the death was due to asphyxia as a result of anti-mortem smothering which was homicidal in nature. 11. As per the post mortem report Ext. 3, the following injuries were found on the body of the victim:- "2. Wounds - position, and character:- The following incised wound are found as follow:- (i) Multiple abrasions are present over the left side of the face over the left angle of the mouth, left cheek clin and area between nose and mouth of sizes varying from 2 cm x 1 cm to 0.3 cm x 0.2 cm. (ii) Cumilenea laceration is present on the inner aspect of lower lip of size 3 cm x 0.3 cm x mucosa deep and surrounding tissues are confused. 3. Bruise - Position, size and nature:- 4. Mark of ligature on neck dissection, etc. Not detected." 12. (ii) Cumilenea laceration is present on the inner aspect of lower lip of size 3 cm x 0.3 cm x mucosa deep and surrounding tissues are confused. 3. Bruise - Position, size and nature:- 4. Mark of ligature on neck dissection, etc. Not detected." 12. PW-5 Sachindra Nath Deka is the IO in this case and he had deposed before the court that he had found the deceased lying supine on the bed. PW-5 had stated that there was a pillow on the bed which he had seized but he did not collect the finger prints on the pillow nor sent it to the FSL. The witness had also stated that he did not see any mark on the neck. It further transpires from the testimony of PW-5 that the deceased used to stay on one part of the house with her son. i.e. the informant and the accused used to stay in the other part. PW-5 had also stated that the rear window of the room in which deceased was found lying was broken. In his cross-examination, PW-5 had admitted that he did not seize the wearing apparels, bed sheet and bedding of the deceased and that no finger print was found on the neck. PW-5 had also stated that no photograph was taken while holding inquest and that the door was also not marked in the sketch map. 13. Pw-6 Sri Nayan Jyoti Bhagawati was the Circle Officer who had held the inquest on the dead body and prepared the Inquest Report Ext 6. PW-6 had stated that on close observation, injury mark was observed in the left cheek. 14. Taking note of the evidence available on record, the learned trial Court had acquitted the co-accused Darpan Deka by observing that there was no evidence either to establish his illicit relationship with the co- accused Bandana nor was there any evidence to show that he was present in the house on the fateful night. However, the learned trial Court has held that accused Bandana was present in the same house along with the deceased and prior to the incident, there was quarrel between the two. Moreover, the door between the two rooms could be opened from the side of the accused only. But the cause of death and the injury marks on the neck of the deceased could not be satisfactorily explained by the accused. Moreover, the door between the two rooms could be opened from the side of the accused only. But the cause of death and the injury marks on the neck of the deceased could not be satisfactorily explained by the accused. Therefore, by relying upon the decision of the Hon'ble Supreme Court rendered in the case of Trimukh Maroti Kirkan Vs. State of Maharashtra reported in (2006) 10 SCC 681 , and State of Rajasthan vs. Kashi Ram reported in (2006) 12 SCC 254 , the learned trial court has held that the prosecution has succeeded in proving the charge brought against the accused u/s. 302 of the IPC beyond all reasonable doubt. 15. Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In the present case, the learned trial court was of the view that there was a burden upon the accused under section 106 of the Evidence Act to explain the circumstances under which the deceased had died which burden she has failed to discharge. 16. In the case of Trimukh Maroti Kirkan(supra) the Hon'ble Supreme Court has held that when an offence like murder is committed in secrecy inside a house, the initial burden to establish the case will undoubtedly be on the prosecution but the nature and amount of evidence to be led by the prosecution to establish the charge cannot be of the same degree as in the other cases of circumstantial evidence. It was held that in view of section 106 of the Evidence Act, there would be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed and the inmates of the house cannot get away simply by keeping quiet and offering no explanation. 17. Trimukh Maroti Kirkan(supra) was a case of dowry death and there was evidence to suggest torture and harassment being meted out to the deceased by her in-laws. There was demand for dowry which could not be fulfilled by the father of the victim. One day, the father had received information that his daughter had died of snakebite at her matrimonial home but the post mortem report showed that the victim had died due to asphyxia as a result of compression of neck. There was demand for dowry which could not be fulfilled by the father of the victim. One day, the father had received information that his daughter had died of snakebite at her matrimonial home but the post mortem report showed that the victim had died due to asphyxia as a result of compression of neck. The accused persons, who were the inmates of the house, had failed to explain the circumstances under which death of the deceased took place. It was in such fact situation that the Hon'ble Apex Court had observed that offences that take place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and circumstances of their choice, it would be extremely difficult for the prosecution to lead evidence so as to establish the guilt of the accused if the strict principles of circumstantial evidence is insisted by the courts. 18. In the case of Kashi Ram (supra) the Supreme Court had observed that as per section 106 of the Evidence Act, when a fact is within the special knowledge of a person, the burden of proving that fact is upon him. Therefore, in a case resting on circumstantial evidence, if the accused fails to offer reasonable explanation in discharge of the burden placed on him under section 106, that itself would provide an additional link in the chain of circumstances proved against the accused. 19. From a careful analysis of the ratio laid down by the Supreme Court in the aforementioned decisions, what follows is that in view of section 106 of the Evidence Act, a burden would lie on the accused to offer cogent and plausible explanation explaining the incriminating circumstances pertaining to his/her special knowledge and the failure on the part of the accused to do so would by itself be an additional link in the chain of circumstances proved against the accused permitting the court to draw adverse inference. What must, however, be borne in mind is that section 106 of the Evidence Act is not a provision to relieve the prosecution from the "burden of proof" cast upon it under sections101 and 102 of the Evidence Act. What must, however, be borne in mind is that section 106 of the Evidence Act is not a provision to relieve the prosecution from the "burden of proof" cast upon it under sections101 and 102 of the Evidence Act. Even in a case based on circumstantial evidence where a crime has been committed in the privacy of a house, it shall be the duty of the prosecution to establish complete chain of circumstances so as to prima facie establish the guilt of the accused. It is only when the prosecution side discharges the initial burden of establishing the prima facie case that the onus under section 106 of the Evidence Act would shift upon the accused. In such a case, if the accused, having special knowledge of the facts, fails to explain the circumstances under which the crime had been committed, adverse presumption can be drawn. Therefore, section 106 of the Evidence Act merely lessen the burden on the prosecution to lead evidence and establish only those circumstances that had taken place in the privacy of a house, in secrecy and in presence of the inmates of the house having special knowledge of such facts but would not, in any manner, relieve the prosecution from proving the charge beyond all reasonable doubt. 20. Coming to the facts of the present case, we find from the evidence on record that the accused is the wife of the PW-1 who had a strained relationship with her. Although they were living in the same house, yet, the PW-1 used to stay in a room with his mother and his two daughters while his wife used to stay in an adjacent room with a door in between. It further appears that on the day of occurrence, the PW-1 was not at home and his mother was with his younger daughter who was aged about five years. PW-1 had also stated that his younger daughter did not go to school on the day of occurrence. Therefore, it is evident that the younger daughter of the informant was at home and hence, in all probability, would have been aware as to circumstances under which the incident had taken place. However, surprisingly enough, the IO did not record the statement of the younger daughter. Therefore, it is evident that the younger daughter of the informant was at home and hence, in all probability, would have been aware as to circumstances under which the incident had taken place. However, surprisingly enough, the IO did not record the statement of the younger daughter. Although the PW-3 had stated that the child was asleep and therefore, could not comprehend as to what had happened, yet, we find that the said witness was not present in the house on the day of occurrence. Therefore, the said testimony of the PW-3 can at best be treated as hear- say- evidence and hence, cannot be relied upon. From a careful examination of the evidence on record we do not find any explanation for the failure on the part of the IO to record the statement of the younger daughter who was present in the house. 21. PW-3 had stated that there were marks of injury in the neck and face of the deceased. The testimony of PW- 6 and the Post-Mortem report Ext-3 confirms such injury on the body of the deceased. If that be so, it is clear that an attempt was also made by the assailant to strangulate the deceased, in which event, finger prints would have been available on the body of the deceased. However, the PW-5 (IO) had deposed that he had neither seen any injury mark on the neck nor has he collected finger prints for forensic test. 22. The doctor PW-4 has opined that death was due to asphyxia as a result of ante-mortem smothering. Despite the same, neither the pillow found on the bed was sent to the FSL nor was the finger print collected. Not only that, the IO did not even seize the wearing apparels or the bed sheet. As a matter of fact the PW-5 had stated that no finger print was found on the neck. 23. According to the PW-1, the accused had used a soaked "gamocha" to press the neck of his mother but the post mortem report, which mentioned about ante-mortem smothering, does not support the testimony of PW-1. 24. The learned trial court has observed that the door in between the two rooms could be opened from the side of the accused. However, we do not find and evidence on record to sustain such a conclusion. 24. The learned trial court has observed that the door in between the two rooms could be opened from the side of the accused. However, we do not find and evidence on record to sustain such a conclusion. Having regard to the evidence on record indicating the strained relationship between the accused and her husband, who was living separately with his mother and two daughters, we find it difficult to accept that the door in between the two rooms could be opened only from the side of the accused. 25. The PW-5 had also deposed that the door had remained open but the window of the room was broken. However, it is not clear from his testimony as to the circumstances under which the door was found open or the window of the room was found broken. That apart, no finger print was collected from the door or the broken window. Therefore, from the evidence available on record it would not be possible for this court to conclude that the accused had entered the room through the door and then had left the same open after causing death to the deceased. Moreover, since the window in the rear of the room was found to be broken, entry of any other person into the room through the broken window cannot also be ruled out. 26. In the above context, it would also be pertinent to note here-in that as per Ext-3, death was caused by ante-mortem smothering. Therefore, it is difficult to comprehend that the accused person alone, without the assistance of another person, would be able to cause death to the deceased by smothering with the help of a pillow. As noticed above, the co-accused Darpan Deka has already been acquitted by the trial court due to want of evidence against him to indicate his presence in the room. Save and except the five year old daughter of the PW-1, there is no evidence to suggest the presence of any other person in the room along with the deceased on the day of occurrence. The prosecution has also failed to lead any evidence to show that the accused had entered the room of the deceased on the day of occurrence. 27. The Pw-5 had mentioned about confession made by the accuseds in the Police Station but no such confessional statement was recorded by the Magistrate. The prosecution has also failed to lead any evidence to show that the accused had entered the room of the deceased on the day of occurrence. 27. The Pw-5 had mentioned about confession made by the accuseds in the Police Station but no such confessional statement was recorded by the Magistrate. Although the PW-3 had deposed that the accused had confessed to the killing in the Police Station and his father had heard the accused person confessing the guilt before the Police, the father of the PW-3 Sri Khargeswar Deka has not been examined as a witness. Therefore, the theory of extra-judicial confession, as proposed by the prosecution side, also falls flat due to lack of evidence. 28. Coming to the question of motive for committing the crime, the prosecution witnesses PWs-2 and 3 have deposed that there was quarrel between the accused and the deceased and that the accused Bandana had made an attempt to cut the deceased with a "dao" a week before the incident. However, both the witnesses have admitted in the cross-examination that they had not stated the said fact before the police. PWs 2 and 3 are the relatives of the informant who is the husband of the accused and the evidence on record indicate that the PW-1 was not having good relation with his wife. Therefore, the evidence of the said witnesses would not carry any weightage in this case so as to establish the motive behind the crime. There is no other evidence to show the motive behind the crime. 29. PW-1 i.e. the husband of the accused had deposed that his wife had an illicit relationship with the co-accused Darpan Deka. Such allegation is based on suspicion owing to the fact that Darpan Deka was seen to sitting on the bed of the accused. There is, however, no evidence to support the said allegation. Moreover, PW- 1 had stated that the public had suspected that the accused had killed his mother. Even assuming that the accused had in fact tried to kill the deceased with a "dao" only a week before the occurrence, it is difficult to believe that in such circumstances, the PW-1 would leave behind his aged mother and minor daughter unguarded in the same house where the accused was staying and would go out of the village to attend a marriage. Therefore, from the testimony of the witnesses PWs 1, 2 and 3 it is clear that the allegation brought against the accused in purely based on suspicion that she might have killed the deceased with the help of the co-accused Darpan. However, law is well settled that mere suspicion cannot take the place of proof. Since the prosecution has failed to prove the illicit relationship between the two accused or the presence of the co-accused Darpan in the place of occurrence, the motive for committing the crime has also remained un-founded in this case. 30. In order to cast burden on the accused under section 106 of the Evidence Act, it was incumbent upon the prosecution to prove that the accused had special knowledge of the circumstances under which the crime was committed. From the discussions made above, it would be apparent the accused was living separately in an adjacent room being a part of the same house with a door in between which used to remain closed. It is not the case of the prosecution that the accused was living together with the deceased in a common house-hold. The prosecution has also failed to prove that the accused Bandana Nath had entered the room of the deceased on the day of occurrence. As such, it cannot be presumed that the accused had special knowledge of what had happened inside the room where the deceased had died. We are, therefore, of the considered opinion that section 106 of the Evidence Act would not have any application in facts of this case. Consequently, it is held that there was no burden cast upon the accused to offer any explanation as to the circumstances under which the crime had been committed. In other words, the ratio laid down in the cases of Trimukh Maroti Kirkan(supra) and Kashi Ram (supra) in our considered opinion, would not have any bearing in the facts and circumstances of this case. 31. The failure on the part of the prosecution to examine the child witness, to collect the finger print on the dead body, pillow, the door and broken window are some of the strong circumstances, which in our opinion, would go against the prosecution. 32. In the case of Sharadh Birdhichand Sarda Vs. 31. The failure on the part of the prosecution to examine the child witness, to collect the finger print on the dead body, pillow, the door and broken window are some of the strong circumstances, which in our opinion, would go against the prosecution. 32. In the case of Sharadh Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622 , Hon'ble Supreme Court has laid down the following conditions which must be fulfilled before a case against an accused can be said to be fully established based on circumstances evidence:-- (i) The circumstances from which the conclusion of guilt is to be drawn should be fully established. (ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (iii) The circumstances should be of a conclusive nature and tendency. (iv) They should exclude every possible hypothesis except one to be proved, and (v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 33. As noticed above, in the present case, the prosecution side has failed to establish the circumstances under which death was caused to the deceased. On the contrary, we are of the view that the evidence led by the prosecution side is insufficient to exclude every possible hypothesis except the one that the appellant had caused death to the deceased. Therefore, by applying the ratio laid down in Sharadh Birdhichand Sarda (supra) we hold that the prosecution has failed to prove the charge brought against the accused/appellant beyond all reasonable doubt. 34. In the case of Nallapati Sivaiah Vs. Sub-Divisional Officer, Guntur, Andhra Pradesh reported in (2007) 15 SCC 465 the Hon'ble Supreme Court has held that it is the duty of the prosecution to establish the charge brought against the accused beyond all reasonable doubt and benefit of doubt, if any, must always go in favour of the accused. For the reasons stated here-in-above, we are of the view that the evidence brought on record raises a strong doubt in our minds as to the circumstances under which the deceased had died. For the reasons stated here-in-above, we are of the view that the evidence brought on record raises a strong doubt in our minds as to the circumstances under which the deceased had died. Therefore, such benefit of doubt must go in favour of the appellant. 35. In the result, this appeal stands allowed. 36. The conviction of the appellant under section 302 of the IPC and the sentence imposed upon her stands quashed. 37. It appears from the record that the appellant is in jail. Registry to issues necessary order for her release from jail forthwith unless the appellant's detention is required in connection with any other case. Send back the LCR.