Mukul Kalita vs The State Of Assam
2021 Latest Caselaw 2452 Gua

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GAHC010160462020




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

                               Case No. : CRL.A(J)/79/2020

            MUKUL KALITA
            KAMRUP, ASSAM.



            VERSUS

            THE STATE OF ASSAM
            REP. BY PP, ASSAM.



Advocate for the Petitioner   : MR. P GOSWAMI, AMICUS CURIAE

Advocate for the Respondent : PP, ASSAM




                                   BEFORE
                    HONOURABLE MR. JUSTICE SUMAN SHYAM
                  HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                        JUDGMENT

Date : --

Heard Mr. P. Goswami the learned amicus curie appearing for the appellant. Also heard Ms. B. Bhuiyan the leaned Additional Public Prosecutor for the State.

1. This is a jail appeal u/s 385 of the Cr.P.C, whereby, the judgment and order dated 06.02.2015, passed by the learned Sessions Judge, Kamrup, Amingaon in Sessions Case No. 435/2014, is under challenged. By the impugned judgment the Page No.# 2/12

appellant is convicted u/s 302 of the IPC.

2. On 03.09.2014, Sri Swadhin Rabha (PW2) had lodged one FIR before police stating that his elder sister Rashmi Kalita (the deceased) was married to the appellant and during the period of one year before filing the FIR, the appellant had physically tortured her. According to the informant, the appellant had demanded dowry from the deceased and as she failed to comply with his demand, he had killed her at 3 am, in the previous night. In the FIR, it has been alleged that the parents of the appellant and one Smt Nijora Kalita were also involved in the said incident.

3. On the basis of the said FIR, police registered Chaygaon P.S. Case No. 285/2014. After that, police started investigation.

4. The dead body of the deceased was sent for post-mortem examination. Doctor (PW1) found the following injuries upon the dead body of the deceased:

(1) One continuous ligature mark of size 2.5 cm in breadth, and 31 cm in length, present encircling the neck, over the thyroid cartilage, which is transversely present. On destruction contusion of the neck muscles in mid-line in the front of neck from above the thyroid cartilage and over it. Hyoid bone is intact.

(2) Contusion of size 3x2 cm over right side of the neck, 5 cm below ramus of mandible and 7 cm to right of midline.

Cranium and spinal canal.

1. Scalp contusion of size 2 cm x 2 cm in right temporalis muscle radish in colour.

2. Scalp contusion size 4 cm x 3 cm over left frontal eminence yellow in colour.

3. Scalp contusion, size 2 cm x 2 cm in occipital area over the occipital protuberance.

Membranes congested.

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5. Doctor (PW1) opined that the deceased died due to asphyxia as a result of ligature triangulation during life time and the death is homicidal in nature. The PW1 further opined that all the injuries found the dead body of the deceased were ante- mortem and were caused by blunt impact.

6. On conclusion of investigation, police filed the charge-sheet against the appellant u/s 304(B)/302 of the IPC. The trial Court framed the charges u/s 304(B)/302 of IPC. On being read over the charges, the appellant pleaded not guilty and claimed to be stand trial.

7. During the trial of the case, the prosecution side examined as many as eight witnesses.

8. In his examination u/s 313 of the Cr.P.C., the appellant has claimed that on the day of the occurrence, he was absent from his house as he had spent that night in the house of his aunt. He further stated that at about 2/2.30 am, his brother Maheshwar Kalita called him over phone and told him that a big incident had happened in his house and therefore he should immediately returned home. The appellant has disclosed that when he reached home, his father told him that the deceased had committed suicide by hanging herself.

9. The appellant did not adduce any evidence. Therefore, on the basis of the prosecution evidence, the trial Court found the appellant guilty u/s 302 of the IPC only. He was acquitted from the charge u/s 304(B) of the IPC on benefit of doubt.

10. We have carefully gone through the prosecution evidence.

11. The first prosecution witness is Dr. Amarjyoti Patowari (PW1). He has conducted the post-mortem examination upon the dead body of the deceased in his evidence he has proved the post-mortem report as Ext. 1.

12. In his cross-examination, PW1 has stated that apart from contusions on the neck and the ligature mark, there were three contusions in the scalp which were caused at different times. PW1 has further stated that the scalp injury no. 1 and no. 3, were caused just before death and scalp injury no. 2 was caused 7 to 14 days prior to Page No.# 4/12

the death. PW1 has clarified that the injuries found upon the dead body of the deceased cannot be caused by falling on a hard surface. PW1 has stated that the deceased must have been assaulted with hard blunt object.

13. During cross examination, PW1 has explained that the contusion on the scalp were not sufficient to cause death but the neck injury i.e the ligature strangulation was sufficient to cause death of a person in ordinary course.

14. The second prosecution witness is Swadhin Rabha (PW2). He is the informant. He has stated in his evidence that on 03.09.2014, at about 2.45 am, the appellant informed him that his wife/ the deceased was ill. PW2 has stated that the deceased was his elder sister. According to PW2, he immediately advised the appellant to take his sister to the Hospital. PW2 has stated that when he advice the appellant to take the deceased to the Hospital, the appellant told him that because of bad road condition, it would not be possible for him to call ambulance.

15. PW2 has stated that at about 3 am, again over phone, the appellant told him that his brother Kamal Rabha (not examined in this case) and another person named Kanai Biswas (not examined in this case) immediately went to the house of the deceased. PW2 has stated that on reaching the house of the deceased, he saw her dead body lying on the varandah of the house of the appellant. PW2 had noticed black marks on the neck of his deceased sister. He also noticed bleeding from the ears of the deceased and at that time froth was coming out from the mouth of the deceased. That day, at about 9 am, PW2 had lodged the FIR.

16. According to the PW2, his deceased sister had married the appellant nine months prior to the occurrence and it was a love marriage.

17. PW2 has claimed in the evidence that the appellant demanded dowry from the deceased. PW2 has stated that he came to know about that fact when the deceased informed him. PW2 has stated that his family did not have sufficient money or property and therefore, they could not give anything to the appellant pursuant to his demands. According to PW2 they knew that the appellant had demanded dowry from the deceased but even then they did not file any police complaint against the Page No.# 5/12

appellant because they did not want to disturb the family life of the deceased.

18. During cross-examination, PW2 has stated that the deceased was earlier married to another person and through him she has a male child. After her marriage with the appellant her son also lived with her. PW2 had deposed that initially at the time of marriage of the deceased, they did not send her son to her new matrimonial house.

19. The third prosecution witness is Naren Rabha ( PW3). He has stated in his evidence that the appellant hails from his village and that is why he knows him. According to PW3 the occurrence of this case took place in the house of the appellant at night. PW3 has stated that in the next morning there was commotion in the village and out of curiosity he went to the house of the appellant and there he saw the dead body of the deceased.

20. PW3 was declared hostile as he had resiled from his earlier statement made before police. He denied having stated to police that on 03.09.2014, at about 3 am, the appellant had killed his wife inside his bedroom by strangulating her neck with his bare hands. He also denied having made any such statement before police that the appellant has confessed before the public and police about his guilt.

21. In his cross-examination, by the defence counsel, PW3 has stated that when he was going to the house of the appellant, some other people of the village and some police man were also going there. According to PW3 police did not record his statement.

22. PW3 has admitted that he did not tell anything to police about the accused and about the incident.

23. The fourth prosecution witness is Mahendra Rabha (PW4). He also hails from the village where the appellant resided. PW4 has stated that one morning, about 8/9 months back, he came to know about the occurrence when he saw police in his village. On seeing the police men in the village and after coming to know about the occurrence, he went to the house of the appellant. PW4 has stated that the occurrence took place inside the house of the appellant.

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24. The PW4 was also declared hostile because he had resiled from his earlier statement made before police u/s 161 Cr.P.C. He denied having made any such statement to the police that the appellant had strangulated his wife to death. PW4 further denied having said to police that the appellant had confessed his guilt before public and police. PW4, however, admitted that the appellant had confessed that he had killed his wife by strangulation.

25. In his cross-examination by the defence counsel, PW4 has stated that police did not record his statement. He has further stated that on his own he did not tell anything to police.

26. The fifth prosecution witness is Ganesh Rabha (PW5). He also hails from the village of the appellant. PW5 has stated that the occurrence took place at about 2 am but he came to know about the same at about 9 am. He has stated that the PW2 had brought police to the house of the appellant. Pw5 has stated that he went to the house of the appellant and saw the dead body of the deceased lying in the varandah of the house of the appellant. According to PW5, in his presence, the appellant confessed before police that he had strangulated his wife to death. PW5 has stated that he had heard from some other villagers that the deceased and the appellant used to have quarrels with each other.

27. In his cross-examination PW5 has stated that when the appellant confessed before police about his guilt many other persons were present there.

28. The sixth prosecution witness is Kameswar Rabha (PW6). He is the village Gaonbura and the appellant had his residence within his village. He has stated in his evidence that one morning at about 8.30 am, one uncle of the appellant informed him about the occurrence. Accordingly, PW5 had gone to the house of the appellant and saw the dead body of the deceased. PW6 has stated that after he had reached the place of occurrence, police arrived there at about 10.30 am.

29. PW6 was also declared hostile because he had resiled from his earlier statement made before police. He denied having said to the police that on 03.09.2014, at about 3 am, a person called Mukul Kalita (the appellant) had killed the Page No.# 7/12

deceased by strangulation. PW5 denied having said to the police that it was discovered that the appellant had killed the deceased and he had confessed about it before the public.

30. During his cross-examination, the PW6 has stated that when he had reached the place of occurrence he met the appellant there but the appellant did not say anything to him about how the deceased died.

31. The seventh prosecution witness is Birendra Ch. Barman (PW7). He is a police officer. He is the investigating officer of this case. In his evidence he spoke about the investigation.

32. In his cross-examination PW7 has admitted that he did not make any prayer to the Court for recording the statement of the appellant u/s 164 Cr.P.C.

33. The eight prosecution witness is Prasanta Barkakaty (PW8). He is a Civil Servant and the inquest upon the dead body of the deceased was conducted by him. He has proved his inquest report as Ext. 2.

34. The defence side declined to cross-examine the PW8.

35. There are no eye witnesses to the occurrence. The prosecution case rests entirely on circumstantial evidence. From the prosecution evidence the following circumstances are clearly established as:

(i) The marriage between the appellant and the deceased took place about nine month prior to the occurrence. There is no denial of this fact.

(ii) The deceased died because of ligature strangulation while she was in the house of her husband.

(iii) The appellant demanded dowry and for that matter the deceased was physically harassed by the appellant.

(iv) The PW2 has stated in his evidence that the appellant had informed him that the deceased was not keeping well and on hearing that PW2 asked him to take her to the hospital in an ambulance. The appellant told PW2 Page No.# 8/12

that because of bad road condition the ambulance would not be able to reach his house. After a few minutes later, the appellant told PW2 that the deceased had died.

(v) In his statement u/s 313 of the Cr.P.C, the appellant claimed that at the relevant time of occurrence, he was staying in the house of his aunt. The appellant did not adduce any evidence to prove that fact.

36. In the landmark judgment in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, the Supreme Court has laid down the guidelines for acceptance of circumstantial evidence. The relevant paragraphs are quoted as under--

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047]

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) 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, Page No.# 9/12

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) 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.

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

37. The factual matrix of the case in hand is similar to the facts of Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681.Here the Supreme Court has held as under --

"14. If an offence takes 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 in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions [1944 AC 315 : (1944) 2 All ER 13 (HL)] -- quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh [(2003) 11 SCC 271 : 2004 SCC (Cri) 135] .) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the Page No.# 10/12

content and scope of this provision and it reads:

"(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him."

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 a 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."

38. At this stage, a brief visit to section 106 of the Indian Evidence Act would be fruitful. It reads as under ---

106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.

39. Section 106 does not entirely relieve the prosecution of its burden to prove a case. This rule of evidence lays down the law that when the accused does not throw any light upon facts which are specially within his knowledge and which could support any theory or hypothesis compatible with his Page No.# 11/12

innocence, then the court can consider his failure to adduce any explanation, as an additional link which completes the chain of circumstances.

40. In the instant case, there is evidence that the deceased and the appellant resided together in the same house. The appellant took the plea that at the relevant time of occurrence he was in the house of his aunt, not in his own house. That fact has not been proved by the appellant. Therefore, it is apparent that he was present in the house at the time of the occurrence. Under the circumstances, the failure of the accused to explain the circumstances under which the occurrence took place completes chain of circumstances against him.

41. If a person is last seen with the deceased, in that case regarding the death of the deceased, he must offer an explanation which is probable and satisfactory. If he does so, then it will be held that he has discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, it will be considered that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case based on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Thus, we are of the opinion that in this case the chain of circumstances is complete without any missing link.

42. We, therefore, hold that the offence under Section 302 of the IPC is proved against the appellant beyond all reasonable doubt. The learned trial Court has correctly appreciated the prosecution evidence and arrived at a correct finding. We decline to interfere with the impugned judgment. We hold that the appeal is devoid of any merit and, therefore, the appeal stands dismissed.

43. Before parting with the record, we put on record our appreciation for Mr. Parangam Goswami, learned Amicus Curiae for her valuable assistance.

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The Registry is directed to pay the notified remuneration to Mr. Goswami.

44. LCR shall be returned.

JUDGE

Comparing Assistant