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2021 DIGILAW 487 (GAU)

Raju Kohar S/o Shyamlal Kohar v. State of Assam

2021-08-17

PARTHIVJYOTI SAIKIA, SUMAN SHYAM

body2021
JUDGMENT : Suman Shyam, J 1. Heard Mr. B. Baruah, learned Legal Aid Counsel as well as Mr. L.R. Mazumdar, learned counsel appearing for the appellant. We have also heard Ms. B. Bhuyan, learned APP, Assam, appearing for the State/ respondent No.1. None has appeared for the informant. 2. By the impugned judgment and order dated 02/05/2019 passed by the learned Sessions Judge, Karimganj in Sessions Case No. 117/2014, the sole appellant Raju Kohar was convicted under section 302 of the Indian Penal Code (IPC) for committing the murder of his wife and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs. 10,000/-with default stipulation. 3. The prosecution case, in brief, is that the deceased Lalita Kumar was married to the appellant about 3 years back. She died an unnatural death on 01/06/2012 in her matrimonial house. On that night, the deceased was staying with her husband. The accused had killed his wife due to a dispute arising between them. 4. On 02/06/2012 at around 11 a.m., the informant Kartik Kumar i.e. the brother of the deceased had received information about the incident and then went to the house of his younger sister and found her dead. On 02/06/2012 itself, an ejahar was lodged by Kartik Kumar before the Officer-in-Charge, Ratabari Police Station reporting the incident. On the basis of the ejahar, Ratabari Police Station case No. 112/2012 was registered on 02/06/2012 under Section 304 (B) of the IPC and the matter was entrusted to S.I. Rajib Das to carry out investigation. On completion of investigation, the I.O. had submitted charge sheet against the accused. Based on the charge sheet submitted by the I.O., charge under Section 304(B) as well as 302 of the IPC were framed against the accused. Since the accused had denied the charge brought against him, hence, the matter went up for trial. 5. During the course of trial, the prosecution side had examined as many as 16 witnesses including the Doctor (PW-2) who had conducted the Autopsy and the I.O. (PW-5). The prosecution case is entirely based on circumstantial evidence. 6. PW-1 Sri Kartik Kumar is the informant in this case and he has deposed that the marriage between his younger sister and the accused took place about five years back. The prosecution case is entirely based on circumstantial evidence. 6. PW-1 Sri Kartik Kumar is the informant in this case and he has deposed that the marriage between his younger sister and the accused took place about five years back. Six months’ after the marriage, a dispute arose between the accused and the deceased and a village meeting was held. The dispute was later settled. PW-1 has stated that the accused used to fight with his sister (deceased) to meet his demand of cash and that they had also paid a sum of Rs. 12000/-in cash to the accused. However, three days after Rs. 12,000/-was paid to the accused, his sister had died. Upon receipt of information about the death of his sister, he went to the accused person’s house along with the Police and on reaching there, found his sister lying naked on the floor. PW-1 has further deposed that he had noticed black mark on her neck and cut injuries on her body. This witness has confirmed that he has lodged the FIR (Ext.-1) and Ext. 1(1) is his signature. In his cross examination, PW-1 has stated that no case was ever filed by them on account of cruelty meted out to his sister and has denied that the deceased was suffering from any ailment. 7. PW-3 Sri Tapesh Kumar is another brother of the deceased. This witness has also deposed that there was dispute between the accused and his sister, as a result of which, a meeting of the village persons was held and he had also attended the meeting. In the meeting, it was decided that both the accused and the deceased should live amicably and thereafter, they continued with their conjugal life. 3-4 days prior to the incident, the accused had demanded money from them stating that he wanted to constructed a well and a Latrine with that money. Thereafter, the father of the accused came to their residence and his mother gave some money, rice and fishes etc. to him. Taking the money, the father of the accused returned back to his house. PW-3 had also stated that he had seen the dead body of his sister lying inside the house of the accused on the floor with a number of sharp cut injuries all over her body, which were covered with clothes. At that time, the accused alone was inside the house. 8. PW-3 had also stated that he had seen the dead body of his sister lying inside the house of the accused on the floor with a number of sharp cut injuries all over her body, which were covered with clothes. At that time, the accused alone was inside the house. 8. PW-4 Smt. Jaymati Kohar is the mother of the accused. She was not at home on the night of the incident as she had gone to stay in the house of her married daughter. In the morning, having come to know about the fact that her daughter-in-law had died, she had returned back to her residence. PW-4 has deposed that at that time, her husband was also not at home and on reaching her house, she found that her daughter-in-law was dead. She had noticed mark on her neck and the dead body was lying on the floor. This witness has also deposed that her son (accused) was also in the house but was immensely shaken and was not in a position to talk. Later, when he became a bit normal, she had asked him and he told that some miscreants had entered into the house and killed her daughter-in-law and that he was not in a position to say how she was killed. 9. PW-5 Sri Rajib Das was the S.I. on duty at the Ratabari Police Station on the date of the incident and had carried out investigation in connection with Ratabari P.S. Case No. 112/2012. PW-5 had deposed to the effect that he had proceeded to the place of occurrence at the Santilla village and found a female dead body in the house of Raju Kohar. Then he had requested the Circle Officer of Ramkrishnanagar Revenue Circle to conduct the inquest over the dead body and the Circle Officer had come at the place of occurrence and conducted inquest over the dead body. Ext. 3 was the Inquest Report. PW-5 has also deposed that he had forwarded the dead body to Karimganj Civil Hospital for Autopsy, prepared sketch map of the place of occurrence and also recorded statements of the witnesses. Later on, he had collected the autopsy report and after completion of investigation, submitted charge sheet against the accused. 10. Dr. Uday Shankar Medhi (PW-2) was the Senior Medical & Health Officer on duty at the Karimganj Civil Hospital on 03/06/2012. Later on, he had collected the autopsy report and after completion of investigation, submitted charge sheet against the accused. 10. Dr. Uday Shankar Medhi (PW-2) was the Senior Medical & Health Officer on duty at the Karimganj Civil Hospital on 03/06/2012. He had conducted the post-mortem examination on the dead body of the deceased Lalita Kohar and prepared the post-mortem report (Ext.2). According to the medical evidence, following injuries were noticed in the dead body :- ““Multiple abrasions on neck are seen with blackish bruises of 6 inches x 2 inches on the front of the chest on its upper part. And abrasion of 3 inches x 2 inches is present on the left shoulder area extending to the root of neck” The doctor has opined that all injuries were ante-mortem and the death was due to asphyxia as a result of throttling. The doctor has also opined that the death was homicidal in nature. On a query made by the Court, PW-5 has also stated that “throttling means manual compression of throat.” 11. In his statement recorded under Section 313 Cr.P.C., the accused had denied all the incriminating circumstances put to him and has claimed to be innocent. However, the defence side did not adduce any evidence. 12. Based on the materials available on record, the learned District and Sessions Judge, Karimganj has held that the prosecution has succeeded in proving the chain of circumstances so as to establish the charge brought against the accused beyond doubt. It has also been observed that since there is evidence to show that there was dowry demand from the accused leading to bitterness between the parties, the motive of ill-will against the deceased was also established. Moreover, despite having admitted that he was inside the house at the time of the incident, the accused person had failed to offer any explanation as to the circumstances under which, the deceased had died. On such basis, the learned Sessions Judge had convicted the accused under Section 302 of the IPC and sentenced him as aforesaid. 13. The learned counsel for the appellant has assailed the impugned judgment primarily on three counts. Firstly, that there were materials to show that some miscreants had entered the house of the accused and killed the deceased but the prosecution side had deliberately failed to examine such witness. 13. The learned counsel for the appellant has assailed the impugned judgment primarily on three counts. Firstly, that there were materials to show that some miscreants had entered the house of the accused and killed the deceased but the prosecution side had deliberately failed to examine such witness. Therefore, this is a case where adverse presumption under Section 114(g) of the Evidence Act should be drawn against the prosecution. Secondly, the incriminating circumstances, in the version of the witnesses, were not put before the accused during his examination under Section 313 Cr.P.C. as a result of which, the trial stood vitiated. Thirdly, merely because the accused was present inside the house, it cannot lead to the irrefutable conclusion that he is the one responsible for the death of the deceased. 14. The learned counsel for the appellant submits that save and except the above theory, there is no evidence to connect the accused with the death of the deceased. As such, the learned Sessions Judge fell into grave error in law in concluding that the prosecution had succeeded in establishing the chain of circumstances so as to prove the charge brought against the accused beyond all reasonable doubt. Alternatively, Mr. L.R. Mazumdar has also argued that on a liberal construction of the evidence available on record, this could at best be a case coming under Section 304 (B) of the IPC and, therefore, conviction of the appellant deserves to be converted and his jail sentence be reduced. In support of their above argument, the appellant’s counsel have relied upon and referred to the following decisions :- (i) Asraf Ali Vs. State of Assam reported in (2008) 16 SCC 328 . (ii) Parubai Vs. The State of Maharashtra (unreported) (Crl. Appeal No. 1154/2018) 15. Repelling the above arguments, Ms. Bhuyan, learned APP, Assam, submits that the homicidal death of the deceased has been duly established by the prosecution by bringing medical evidence on record. It has also been established that the incident occurred inside the matrimonial home of the deceased and at that time, save and except, her husband i.e. the accused, no one else was present inside the house. The accused had failed to offer plausible explanation as to the circumstances under which the victim has died. It has also been established that the incident occurred inside the matrimonial home of the deceased and at that time, save and except, her husband i.e. the accused, no one else was present inside the house. The accused had failed to offer plausible explanation as to the circumstances under which the victim has died. The aforesaid evidence, coupled with the materials brought on record, which indicate that there was strained relationship between the accused and the deceased over dowry demand, fully establishes the chain of circumstances which goes to show that it is none other than the accused who is responsible for causing the homicidal death of his wife. Under such circumstances, submits Ms. Bhuyan, there can be no justifiable ground for this Court to interfere with the conviction of the appellant or the sentence awarded to him by the learned Sessions Judge. The learned PP has relied on a decision of the Supreme Court rendered in the case of Kalu alias Laxminarayan Vs. State of Madhya Pradesh reported in (2019) 10 SCC 211 in support her arguments. 16. We have considered the submissions advanced by learned counsel for both the sides and have carefully gone through the materials available on record. 17. As noticed above, the evidence of PWs 1, 3 and 4 clearly establishes the fact that the deceased had died un-natural death in her matrimonial home and on the night of the incident, only the accused was present inside the house. The post-mortem report Ext. 2 and the evidence adduced by the Doctor (PW-2) establishes beyond any pale of doubt that the deceased had suffered a homicidal death, which was due to throttling. Injury marks were noticed in the dead body, which fact has also come out in the post mortem report (Ext.2). In view of the evidence available on record, there cannot be any doubt or dispute about the fact that the deceased had died a homicidal death in the intervening night of 01-06-2012 and 02-06-2012 at her matrimonial house while the appellant was the only person living with her inside the house. 18. It has also come out from the evidence of PWs 1 and 3 that there was a dispute between the appellant and the deceased with regard to some domestic issues which had led to bitter relationship between them requiring a village meeting. 18. It has also come out from the evidence of PWs 1 and 3 that there was a dispute between the appellant and the deceased with regard to some domestic issues which had led to bitter relationship between them requiring a village meeting. PW-1 has stated that the accused used to fight with his sister and demand cash and before the incident, a sum of Rs. 12,000/-was paid by his mother to the accused which was taken by the father of the accused. The evidence adduced by PW-1 on such count finds due corroboration from the testimony of PW-3. From the above, it is vividly established that the relationship between the accused and the deceased had turned sour soon after their marriage. 19. It has also come out from the evidence of PWs 1 & 3 that the accused had asked for money and his demand was also met by the family members of the deceased. In his statement recorded under Section 313 Cr.P.C., in response to question No. 6, the accused had also admitted that there was a dispute between himself and his wife, for which, a village meeting was held. He had, however, denied of having taken any money or having demanded money from his in-laws. The accused has also denied that his father had gone to the residence of his in-laws and returned back with money, rice and fish, handed over by his mother-in-law. 20. From the evidence available on record, although it cannot be concluded that the deceased was ever tortured by the accused or his parents for dowry, it can certainly be presumed that from time to time the accused used to demand money and other articles from his in-laws as a result of which, there was a bitter relationship between him and his deceased wife. 21. In the present case, we find from the evidence adduced on record that the prosecution has succeeded in establishing the chain of circumstances to show that the victim had died an un-natural death in her matrimonial house under unknown circumstances. The motive behind the killing has also been established by the prosecution. However, the accused had failed to discharge his obligation under Section 106 of the Evidence Act by failing to give any explanation as to the circumstances under which his wife had died. 22. In the case of Trimukh Maroti Kirkan Vs. The motive behind the killing has also been established by the prosecution. However, the accused had failed to discharge his obligation under Section 106 of the Evidence Act by failing to give any explanation as to the circumstances under which his wife had died. 22. In the case of Trimukh Maroti Kirkan Vs. State of Maharashtra reported in (2006)10 SCC 681 , the Hon’ble Supreme Court has observed that in the cases where offences are committed in the secrecy of matrimonial home, there would be a burden upon the accused under Section 106 of the Evidence Act to explain the circumstances under which the victim had suffered death. It has been held in paragraph 15 as follows :- “15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.” 23. From a meticulous reading of the evidence available on record, we find ourselves in agreement with the conclusion drawn by the learned trial Court that the prosecution has succeeded in establishing the chain of circumstances, so as to prove the charge brought against the accused under Section 302 of the IPC. But the accused had failed to offer proper explanation. Therefore, the impugned judgment and order, in our view, does not call for any interference by this Court. 24. But the accused had failed to offer proper explanation. Therefore, the impugned judgment and order, in our view, does not call for any interference by this Court. 24. In so far as the objection raised by the learned counsel for the appellant to the effect that the incriminating circumstances were not properly put to the accused with reference to the exact statement made by the witnesses, we find that all relevant circumstances had been put before the accused and he has also furnished his explanation with regard to each of those questions. It may be correct to say that one or two circumstances were not put to the accused but on a careful reading of the impugned judgment, we find that the learned Sessions Judge had not relied upon any of those circumstances, which were not put to the accused while recording his statement under Section 313 Cr.P.C., so as to convict him. Moreover, the learned counsel for the appellant have not been able to point out as to in what manner, the accused had been prejudiced merely because some circumstances were not put to him in a particular fashion while recording his statement under section 313 Cr.P.C. Therefore, the decision in the case of Asraf Ali(Supra) will not be of any assistance to the appellant’s counsel in this case. 25. In so far as the stand of the appellant that some miscreants had entered the house of the accused at night and killed the deceased, we find that no such stand had been taken by the accused while recording his statement under Section 313 Cr.P.C. The aforesaid version, for the first time, has come out in the evidence of PW-4 i.e. the mother of the accused, who had stated that on an enquiry, her son i.e. the accused had told her the same. However, we find from the case diary that while recording her statement under Section 161 Cr.P.C., the PW-4 did not say so before the Police. There is no other material to even remotely point towards the possibility of miscreants having entered the house of the accused and killed the deceased. There is also nothing to show that the accused had raised an alarm at night or had informed the Police about entry of miscreants in his house. There is no other material to even remotely point towards the possibility of miscreants having entered the house of the accused and killed the deceased. There is also nothing to show that the accused had raised an alarm at night or had informed the Police about entry of miscreants in his house. Under such circumstances, the aforesaid plea of the learned counsel for the appellant that the deceased was killed my unknown miscreants is found to be wholly unacceptable by this Court. 26. In the case of Parubai(Supra), the Hon’ble Supreme Court has observed that mere presence of the accused or other inmates of the house in the place of occurrence may raise a strong suspicion but suspicion alone cannot take the place of proof. There can be no quarrel with the above proposition of law laid down in the aforesaid decision. However, in that case, it had been found that the other links in the chain of circumstances could not be established by the prosecution and therefore, it was held that there would be no obligation on the part of the accused to explain under Section 106 of the Evidence Act. 27. In the present case, as held above, we find that the prosecution has succeeded in establishing other circumstances in the chain raising a strong presumption of guilt against the accused but the accused has failed to discharge his burden under Section 106 of the Evidence Act by failing to offer any explanation as regards the circumstances which were specially within his knowledge. As such, the failure on the part of the accused to offer a plausible explanation would be an additional link in the chain of circumstances proved by the prosecution so as to establish the charge brought against the accused. 28. For the reasons stated herein above, we hold that there is no merit in the appeal. The appeal is accordingly dismissed. Send back the LCR. Before parting with the case record, we would like to put our appreciation on record as regards the valuable assistance rendered by Mr. B. Baruah, learned Legal Aid Counsel and direct the Registry to make available just remuneration to him, as per the notified fee, for Legal Aid Counsel.