Smt. Senehi Borah @ Gereli vs The State Of Assam
2021 Latest Caselaw 534 Gua

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GAHC010085962018




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : CRL.A(J)/43/2018

              SMT. SENEHI BORAH @ GERELI
              W/O. LT. AMULYA BORAH, R/O. MILANBHUMI GAON, P.S. BORHOLLA,
              DIST. JORHAT.



              VERSUS

              THE STATE OF ASSAM
              REP. BY THE P.P., ASSAM



Advocate for the Petitioner   : MS. P BARUA BORDOLOI, AMICUS CURIAE

Advocate for the Respondent : B.B. GOGOI

PP, ASSAM

Date of hearing : 09.02.2021 Date of Judgment/Order : 17.02.2021

BEFORE HONOURABLE MR. JUSTICE AJIT BORTHAKUR

JUDGMENT & ORDER Date : 17-02-2021

Heard Ms. P.B. Bordoloi, learned Amicus Curiae appearing for the appellant. Also heard Mr. B.B. Gogoi, learned Additional Public Prosecutor, Assam appearing for the State respondent.

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2. This jail appeal is preferred against the judgment and order, dated 05.03.2018, passed by the learned Sessions Judge, Jorhat in Sessions Case No. 120(JJ)/2011, whereby the appellant is convicted under Section 304, Part-II of the IPC and sentenced to undergo R.I. for 7 years and to pay fine of Rs. 15,000/- in default to suffer R.I. for 3 months.

3. The prosecution case, in a nutshell is that one Biplab Gogoi lodged an F.I.R. on 20.07.2011 before the In-charge of Panikheti Out Post under Borholla P.S. alleging, inter-alia, that on that day at about 8 p.m., while his maternal uncle Amulya Borah, who is the husband of the accused Senehi Borah alias Gereli was returning to his house in an inebriated condition, an incident of altercation with the accused took place and thereupon, her husband Amulya assaulted her. Being enraged at it, the accused, in turn, dealt dao blows over the head and neck of Amulya Borah and as a result, he succumbed to his injuries in his house itself.

4. Based on the above F.I.R., Panikheti O.P. G.D. Entry No. 269, dated 20.07.2011, was made and on being forwarded registered as Borholla P.S. Case No. 26/2011 u/s 302 of the IPC. After completion of investigation, the investigating officer S.I. Dilip Ranjan Chetia laid a charge-sheet under Section 302 of the IPC against the accused. Thereafter, the learned

Judicial Magistrate, 1st Class, Jorhat committed the case to the Court of learned Sessions Judge, Jorhat for trial. The trial of the case commenced with the framing of a charge under Section 302 of the IPC by the learned Sessions Judge, Jorhat. The accused pleaded not guilty. In course of trial of the case, the prosecution examined 11 witnesses including the autopsy surgeon and exhibited 5 number of documents and one material exhibit, the weapon of offence- one 'dao'. After closing the evidence of the prosecution side, the statement of the accused was recorded under Section 313 Cr.P.C. The accused pleaded not guilty and declined to examine any witness in defence. The accused took the stand as follows:

"I am innocent. I have been falsely implicated in the instant case. I did not commit murder of my husband Amulya Borah, as alleged.

Deceased was not present in the house for the last eight months after taking wife of another person. Somebody assaulted him and kept him in the courtyard of the house. I became unconscious after witnessing his body. So, I rushed to the house of Khagen and told the incident to his wife. Then I became unconscious."

5. Thereafter, the learned Sessions Judge, Jorhat on hearing the arguments of both Page No.# 3/7

sides and appreciation of evidence on record, convicted and sentenced the accused as stated above.

6. A perusal of the evidence of P.W. 1, Biplob Kr. Gogoi, the informant VDP Secretary of the village Nagabat Milanbhumi supported the contentions made in the FIR vide Ext. - 3, but stated that he came to know about the incident at the house of the deceased, who was his neighbour, when he noticed gathering of villagers there and police enquired from him about the occurrence. He saw the deceased lying at his courtyard with injury on his person. At that time, the accused, who was the wife of the deceased was found in the house of one Khagen Chutia, located in front of the house of the deceased. The police seized one 'dao' from the house of the deceased and accused vide M. Ext. - 1. The prosecution declared him as a hostile witness. In cross-examination, he (P.W. 1) stated that before the incident, the deceased used to stay in a different house along with his second wife and he stopped visiting his own house where the accused Senehi used to reside since after his second marriage.

7. P.W. 2, Pramod Bora is the brother of the deceased. He rushed to the house of the informant and deceased at about 9 p.m. hearing hue and cry. He found the deceased lying at the entrance to his house bearing cut injury on the neck and the accused was found in the house of the neighbour Khagen Gogoi (P.W. 3). Corroborating the statement of defence of the accused under Section 313 Cr.P.C., he stated in cross-examination that his brother (the deceased) stayed with his second wife after an elopement and never returned to his earlier house, where the accused stayed. According to him, the accused confessed before them that she killed her husband and produced the 'dao', M. Ext. -1 before the police, which was seized vide Ext. 1, the seizure memo. He could not say if the accused did not kill her husband but killed by some other person. The extra-judicial confession made by the accused before the witness (P.W. 2) appears to be doubtful as the seized dao which was immediately seized after the alleged occurrence did not bear any blood stain and her presence was seen in the house of neighbour Khagen Gogoi (PW 3), when the deceased was found outside the dwelling house of the accused at its entrance.

8. Coming to the evidence of P.W. 3, Khagen Gogoi, a neighbour of the accused, it is noticed that he was declared hostile by the prosecution. He stated in cross-examination that Page No.# 4/7

the deceased had stayed with a married woman of another person away from his house prior to his death and he found the dead body of the deceased Amulya Borah lying dead in his courtyard. However, in his examination-in-chief, he stated that after some time of hearing loud voice in the house of the deceased, the accused Senehi alias Gereli Borah, the wife of the deceased, arrived at their house. It is however, not clear from his evidence as to from where Senehi arrived in their house.

9. P.W. 4, Numali Borah, who is the wife of P.W. 2, Pramod Gogoi stated that she along with her husband and the accused Senehi alias Gereli along with her husband, deceased Amulya Borah used to reside in the same compound though in separate houses and hearing hue and cry in their house at about 8.30/9 p.m., they rushed to their house and found the deceased Amulya lying on the roadside with two injuries, one on the head and another on the neck caused by sharp weapon. At that time, they did not find presence of the accused in their home and later on, she came to know that she had gone to the house of P.W. 5, Akhima Gogoi and P.W. 3 Khagen Gogoi. But, she stated that they found the younger brother of the deceased Moloka Borah alias Gogoi in the house of the accused and that the deceased had left his house about 2 months prior to the day of the occurrence and started staying somewhere else along with a married woman. She, however, stated that at the time of making the extra-judicial confession before her husband, P.W. 2, Pramod Gogoi and Bhai Chutia, a neighbour (not examined) and herself, police was also present along with them.

10. P.W. 5, Akhima Gogoi is the wife of P.W. 3, Khagen Gogoi and a neighbour. She was declared hostile by the prosecution. She stated that at about 8 p.m., when she was at home, she heard noises coming from the direction of the house of the accused and in the meantime, accused Senehi alias Gereli came to their house and fell fainted. On her enquiry, Gereli did not reply after she regained consciousness. In cross-examination, she, inter-alia, stated that the accused was not arrested by police from their house and that the accused is not related to them, but just a neighbour.

11. P.W. 6, Biplab Gogoi is the informant in the case. According to him, on hearing about the incident from P.W. 3, Khagen Gogoi, a neighbour of the deceased and accused, informed to the effect that his (P.W. 6) maternal uncle (deceased) required urgent medical treatment. On receipt of the information, he rushed to their house and found the deceased lying injured Page No.# 5/7

in his courtyard bearing cut injury on the back of the neck. He immediately informed the police about the occurrence over phone. He also found the accused Senehi alias Gereli lying unconscious on the mat in the drawing room of their house. He filed the FIR, Ext.- 3. The police seized one dao, M. Ext. -1, from the house of the accused vide Ext.- 1, the seizure memo.

12. P.W. 7, Sima Gogoi is the sister-in-law of the accused and wife of P.W. 8, Moneswar Gogoi, the younger brother of the accused. She is declared hostile by the prosecution. According to her, hearing cries in the house of the deceased and the accused, she rushed there and found the accused lying on the floor in an unconscious state in their house. Police did not record her statement.

13. P.W. 8, Maneswar Gogoi @ Moloka, the husband of P.W. 7 and brother of the accused, stated that on hearing hue and cry in the house of the accused, he went there and found the deceased lying in the compound of the house of the deceased covering his whole body with blood. He did not find the accused and her two sons present in their residence. The accused had just arrived at her home.

14. P.W. 9, Ratan Chutia is a witness to the inquest report vide Ext. - 2 and does not know the accused.

15. The evidence of P.W. 10, S.I. Dilip Ranjan Chetia, the investigating officer is formal in nature. He deposed to have found the dead body of Amulya Borah at the entrance to the house of the accused and the deceased and accordingly, he drew up a sketch map of the place of occurrence vide Ext. - 4 and prepared the inquest report vide Ext. -2. In cross- examination, he, inter-alia, stated that he received the information about the occurrence at about 9 p.m. and accordingly, visited the place of occurrence at about 9.20 p.m. He found that the place of occurrence was completely dark. He did not send the seized 'dao' for fingerprint examination and did not notice any blood stains thereon.

16. P.W. 11 is Dr. Nitu Kumar Gogoi. He held post-mortem examination over the dead body of Amulya Borah on 21.07.2011, i.e. on the following day of occurrence at Jorhat Medical College and Hospital on police requisition and opined that the death of the deceased was due to haemorrhage and shock, resulting from the chop injuries which were ante Page No.# 6/7

mortem in nature and caused by a heavy sharp weapon and homicidal in nature. He recognized Ext. -5, the post-mortem report.

17. On appreciation of the above testimony of the prosecution witnesses, it is evident that there was no eye witness to the alleged occurrence that took place at the entrance/open compound of the house of the accused and her husband (the deceased) in the darkness of the night. It is also not clear beyond doubt as to where the accused was, in fact, present at the relevant time of the occurrence. It is, however, evident that the dao (M. Ext.- 1) was recovered and seized from the compound of their house, i.e. an open space where access to outsiders cannot be ruled out. There is also evidence that from before the occurrence, the deceased resided with his second wife elsewhere and abandoned the company of his first wife- the accused. On the other hand, although it has been stated that the accused made extra-judicial confession before some of the witnesses stated above, it may be seen that the same, even if was made, was certainly made in presence of the police, which is not admissible in evidence under Section 25 of the Evidence Act. Here, it may be pointed out that the exact words of the extra-judicial confession of the accused have also not come on evidence. Therefore, taking into consideration of the surrounding circumstances that emerge from the above evidence of the prosecution witnesses, this Court sees reasons to doubt as to the voluntary nature of the extra-judicial confession and as such, the same does not inspire confidence in the mind of this Court and resultantly, in the considered opinion of the Court, the same cannot be relied upon to record a conviction of the accused. This presumption is reinforced by lack of clear and consistent evidence as to the presence of the accused in her house at the relevant time of the occurrence, when the same occurred at the entrance to their house. Even P.W. 4, Numali Gogoi, the wife of P.W. 2, Pramod Borah, who rushed to the house of the accused hearing hue and cry in their house found her brother Moloka's presence at her home while the dead body of her husband was lying on the ground near the road and at that time, Senehi alias Gereli was found not present. It may pertinently be stated that neither the prosecution nor the defence has brought on evidence showing the element of any form of hostility among the related witnesses who have either stated in favour of the prosecution or the defence case. Therefore, it is noticed that although the cause of death of the deceased was homicidal in Page No.# 7/7

nature, as is evident from the evidence of P.W. 11, the autopsy surgeon, it is in the backdrop of the insufficient and inconsistent evidence of the prosecution witnesses, it can't rightly be attributed the complicity of the accused in the commission of murder of her husband Amulya Borah beyond all reasonable doubt. To speak it differently, the prosecution has failed to discharge its burden of proof in establishing the guilt of the accused wife of the deceased or by any negligent act causing the death of her husband Amulya beyond all reasonable doubt. It is further noticed that there is absolutely no evidence to show that the deceased in his inebriated condition came to his house and got involved in a quarrel with the accused wife and assaulted her in its midst and on such provocation being initiated by him, the latter caused grievous hurt on the vital part of the body resulting in his instantaneous death on the spot.

18. Therefore, the accused appellant is acquitted of the charge and set at liberty forthwith setting aside the impugned judgment of conviction.

19. Release the accused from jail custody forthwith.

20. Send back the LCR.

21. Appeal stands disposed off.

22. Before parting with the record, we appreciate the valuable service rendered by Ms. P.B. Bordoloi, learned Amicus Curiae. Accordingly, it is directed that an amount of Rs.7,500/- as legal fees be paid to her by the High Court Legal Services Committee upon production of a copy of this judgment and order.

JUDGE

Comparing Assistant