Crl.A./228/2018
2021 Latest Caselaw 2602 Gua

GAHC010151552018




                            THE GAUHATI HIGH COURT AT GUWAHATI
                         (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
                                         PRINCIPAL SEAT AT GUWAHATI

                                          Criminal Appeal No. 228/2018


                             Shri Pradip Baskey,
                             S/O Late Hapra Baskey,
                             R/O No.2 Dhadumia Gaon,
                             PS-Tingkhang, Dist.-Dibrugarh, Assam,
                             Pin-786612.
                                                                                ......Appellant.

                                   -Versus-
                    1.       The State of Assam,
                             represented by the P.P., Assam.
                    2.       Shri Abhijit Murmu,
                             S/O Lt. Lakhinder Murmu,
                             R/O Kolakota, PS-Sapekhati,
                             Dist.-Sivasagar, Assam,
                             Pin-785692.
                                                                            ......Respondents.

BEFORE HON'BLE MR. JUSTICE N. KOTISWAR SINGH HON'BLE MRS. JUSTICE MALASRI NANDI

For the Appellant: Mr. Z. Hussain, Mr. M. Hoque, Mrs. N. Begum. ......Advocates.

                    For the Respondents:               Mr. R. Kaushik,
                                                       Addl. PP, Assam.        ......Advocate.


                    Date of Hearing             :      26.10.2021




              Date of Judgment           : 29th October, 2021

                                  JUDGMENT AND ORDER

             [N. Kotiswar Singh, J.]

Heard Mr. Z. Hussain, learned counsel for the appellant. Also heard

Mr. R. Kaushik, learned Additional Public Prosecutor, Assam, appearing for

the State.

2. The present appeal has been preferred against the impugned

judgment and order dated 07.05.2018 passed by the learned Additional

Sessions Judge, Dibrugarh, in Sessions Case No.283/2013, by which the

present appellant was convicted for murder of his wife under Section 302

IPC and sentenced to undergo rigorous imprisonment for life and also to

pay a fine of Rs.10,000/-, in default of which he is to undergo simple

imprisonment for one month.

3. Upon an FIR filed on 11.01.2013 by one Abhijit Murmu, who is the

brother-in-law of the appellant, informing that the appellant after marrying

informant's sister Smt. Anima Murmu for about 17 years had been

physically assaulting his sister and when he went to his sister's house he

came to learn that at about 11 p.m. on 10.01.2013 the appellant had

brutally assaulted his elder sister with hands, as a result of which she died.

Accordingly, a police case vide Tingkhong PS Case No.13/13 was registered

under Section 302 IPC. Upon completion of investigation, the appellant was

charge-sheeted for committing murder of Sabita Baskey alias Anima Baskey

punishable under Section 302 of the IPC.

4. The learned Trial Court, on the basis of the evidence adduced,

convicted the appellant under Section 302 IPC for committing murder of his

wife as mentioned above.

5. As we proceed to examine the correctness of the judgment and

conviction of the appellant, it would be relevant to refer to the evidences,

briefly, which have been brought on record before the learned Trial Court.

6. The prosecution examined as many as 10 witnesses and exhibited a

number of documents.

7. The first prosecution witness, namely, Lokeswar Dhadumia (PW1),

who was the village Headman at the relevant time, deposed that on the

day of the occurrence in the morning at about 5/6 am, the appellant

reported him that there was a quarrel between the appellant and his wife,

as a result of which the appellant's wife died. Thereafter, PW1 brought the

appellant to Tinkhong Police Station. PW1 also stated that in course of the

interrogation, the appellant confessed before the police that he had killed

her.

PW1 was also a witness to the inquest.

In the cross-examination, PW1, however, stated that the appellant

did not inform him that he killed his wife but denied the charge of the

defence that PW1 had falsely implicated the appellant due to certain

differences relating to allotment of Fair Price shop which the appellant was

running and which PW1 had tried to give to some other person.

8. PW2, Shri Bipin Baskey, is the son of the appellant who was about

16 years. PW2 testified that deceased was his mother and he resided in the

same house with the appellant (his father) and his mother (deceased). He

stated that in the morning he saw his mother lying dead on her bed and his

father (appellant) was sleeping at that time. He also stated that on the day

of the occurrence, he was present at the house. He also stated that on the

day of the occurrence, there was no quarrel between the appellant and his

mother and in the morning, when he called his mother, she was found

dead. PW2, however, denied having any knowledge about the incident.

9. PW3 is one Dr. Subhajyoti Deka, who conducted the post mortem

examination on the dead-body of the deceased Sabita Baskey. On

examination, PW3 found the following injuries on the body of the

deceased:-

"1. Periorbital contusion over the left eye (black eye);

2. Multiple abrasion of size 5 cm x 5 cm to 1 cm x 1 cm present over the right forehead;

3. Contusion of size 10 cm x 5 cm over the left fact;

4. Lacerated injury of size 2 cm x 1 cm muscle deep present over the left chin;

5. Lacerated injury of sixe 1 cm x 1 cm muscle deep present over the left mastoid just below the left ear;

6. Abrasion of size 2 cm x 1 cm present over the right chest;

7. Abrasion of size 2 cm x 1 cm present over the right elbow;

8. Contusion of size 3 cm x 2 cm present over the right forearm in the upper part and dorsal aspect;

9. Contusion of size 5 cm x 2 cm present over the dorsal aspect of the lower part of left arm;

10. Abrasion of size 2 cm x 1 cm present over the left wrist;

11. Multiple abrasion and contusion of varying sizes present over the right hip;

12. Abrasion of size 2 cm x 1 cm present over the right leg dorsal aspect of the lower one third;

13. Multiple abrasion of varying sizes present over the middle and left leg."

PW3 also found the following injuries:-

"On examination of cranium and spinal canal: Scalp hematoma of size 6 cm x 3 cm present over the left temporal region. Scalp and vertebrae are healthy. Brain and membrane are congested. Subdural haemorrhage present over both side of the cerebral hemisphere.

On examination of thorax: right ribs fractured, 2nd, 3rd, 4th and 5th at mid clavicular line. Left side rib fractured, 1, 2, 3, 4 and 6 in the clavicular line. Pleurae, larynx, tracherc, both the lungs are pale. Heart pale and empty.

On examination of abdomen: peritoneum is pale, cavity filled with 1 litre of blood, mouth pharynx oesophagus are pale, the stomach and mucosa are pale contains 200 grams of partly digested food. Liver lacerated of size 4 cm x 5 cm present over

the anterior surface of the right lob. Spleen, kidney and bladder all pale."

PW3, accordingly, gave his opinion that death was due to coma

resulting from head injuries sustained and all injuries were ante mortem

and caused by blunt force impact and homicidal in nature. PW3 proved the

post mortem report, which was exhibited as Ext.2.

10. PW4, Sri Abhijit Murmu, is the complainant and brother-in-law of the

appellant. He proved the contents of the FIR, which was exhibited as Ext.2.

PW4 testified that on the next morning of the day of the occurrence, the

second wife of the appellant informed him over telephone that the

appellant had killed his wife as there was a quarrel between them on the

previous night. Then, PW4 along with Rupasi Tudu and Suresh Murmu,

came to the house of the appellant and saw that police were already there.

He also saw the dead-body and found injury mark on the forehead of the

deceased.

PW4 also testified that the marriage between the appellant and his

sister was solemnised around 16/17 years back, and prior to three years

from the date of the incident, the appellant married for the second time

and quarrel started taking place after the second marriage. PW4 also stated

that the appellant had assaulted his sister on two occasions and his sister

came to his house. PW4 also stated that he had taken his sister for medical

treatment as she sustained injury because of the assault by the appellant.

Subsequently, on two occasions, the appellant brought his sister back to his

house.

PW4 also stated that he lodged the Ejahar as after the second

marriage, there was quarrel and altercations and the appellant had

assaulted the deceased on earlier occasions also.

During cross-examination, PW4 admitted that he did not know how

the occurrence took place as he was not an eye-witness to the incident.

11. PW5, Mohan Kiskoo, was not an eye witness but he saw the dead-

body lying on the bed. PW5 was present when the inquest was held.

12. PW6 is one Atul Karmakar, who was not an eye witness but knew

the informant, deceased and appellant. He merely testified about visit of

the police in the house of the appellant and also taking out of the dead-

body by the police.

13. PW7, Smti. Prano Baskey, deposed that the appellant is her brother-

in-law. PW7, however, turned hostile.

14. PW8, Sita Murmu, was a co-villager who knew both the deceased as

well as the appellant. PW8 was also declared hostile as she claimed

ignorance of how the deceased had died. PW8 denied what she had stated

to the police under Section 161 Cr.PC about her visiting the house of the

deceased and also about the assault by the appellant and of also seeing

the grievous injuries on the dead-body of the deceased.

15. PW9 is one Bhuban Dhadumia, who merely stated about visiting the

house of the deceased. He found the dead-body of the deceased lying on

the bed.

16. PW10 is the Investigating Officer, who testified that on receiving the

complaint, the First Information Report was registered and he visited the

place of occurrence at around 12.20 noon and found the dead-body of the

wife of the deceased lying on the bed. He found marks of violence on the

face of the deceased and bleeding from the injuries. Thereafter, inquest

was held and while holding the inquest, several injuries were noted on the

dead-body of the deceased. PW10 sent the dead-body to the AMCH for

post-mortem examination. PW10 stated that the appellant came to the

Police Station in the morning and reported that his wife had died due to

drowning in a pond.

PW10 also stated that during interrogation, the appellant confessed

his guilt and he was sent to the Court for recording his confessional

statement. In the Court, however, the appellant denied to confess.

During cross-examination, PW10 admitted that in the inquest report,

he had not mentioned the nature of the weapon by which the injuries were

probably caused and he had not mentioned the cause of death of the

deceased in the inquest report. He also admitted that he made no seizure

in connection with the case.

PW10 denied that the accused did not confess before him in the

Police Station and he did not record the statement of PW7 and PW8.

17. On conclusion of recording of evidences on behalf of the

prosecution, the appellant was examined under Section 313 Cr.PC.

However, he denied all the allegations and the incriminating evidences,

which came out in course of the trial. He also did not adduce any evidence

in his defence.

18. We will now proceed to examine the impugned judgment.

19. The learned Trial Court noted that death of Sabita @ Anima @

Phulmoni Baskey was neither denied nor disputed and in coming to the

conclusion that the death was homicidal, the learned Trial Court referred to

the evidence of the doctor (PW3), who conducted the autopsy over the

dead-body.

As mentioned above, the evidence of the doctor reveals that there

were 13 injuries over the dead-body and he also found injuries on the

temporal region of the deceased. There was also evidence of some of the

ribs of the deceased being fractured. Accordingly, the doctor gave the

opinion that injuries were ante mortem and caused by blunt object and the

death was homicidal in nature.

The learned Trial Court noted that the doctor (PW3) was not cross-

examined by the defence and, as such, his evidence remained

unchallenged. Thus, the learned Trial Court was of the view that the

evidence of the doctor cannot be discarded or disbelieved.

20. Having come to the conclusion that the death of the deceased was

homicidal in nature, the learned Trial Court proceeded to examine the

circumstances in which the death occurred.

As can be seen from the evidence, the learned Trial Court also noted

that there was no eye witness and accordingly, the question as to the

perpetrator of the crime had to be answered on the basis of the

circumstantial evidence. In this regard, the learned Trial Court referred to

the evidence of PW1, Lokeswar Dhadumia, who took the appellant to the

Police Station. PW1 had stated that on the day of the occurrence at about

5/6 am, the appellant had informed him about the quarrel between him

and his wife and the appellant had also confessed to his guilt. However,

during cross-examination, PW1 stated that the appellant did not inform him

that the appellant had killed his wife.

21. The learned Trial Court further examined the evidence of the son of

the appellant (PW2) who, in categorical terms, mentioned that the dead-

body of the deceased was found on the bed in the house and at the

relevant time, his father was sleeping.

22. The learned Trial Court inferred that considering the injuries

sustained by the deceased on her body, if it was an assault by someone

other than by any inmate in the house, the said act of assault would have

woken up the appellant and others and they would have intervened.

However, neither the appellant nor his son pointed out their fingers

towards anyone for the alleged offence.

23. The learned Trial Court also noted that the appellant had two wives

and the informant was informed by his second wife about the incident.

Though the second wife was not examined by the prosecution, the

appellant had not stated anything in his statement recorded under Section

313 Cr.PC that it was someone else who had committed the crime which

had happened inside the house. The learned Trial Court also noted the

evidence of the doctor that partly digested food was found in the stomach

of the deceased which indicated that the incident took place after the food

was taken by the deceased, which could happen only in the night time and

the learned Trial Court also noted that the appellant did not state anywhere

that at the time of the occurrence in the night, the deceased was away

from home.

The learned Trial Court also noted the evidence of the brother-in-law

of the appellant who stated that on earlier occasion also, the appellant had

assaulted his sister.

24. The learned Trial Court also noted that the son and other relatives of

the appellant had turned hostile and, in spite of that, there were evidences

which support the case of the prosecution that the death had occurred in

the house of the appellant and, as such, held that merely because some of

the witnesses had turned hostile, it would not render the evidence of the

other witnesses unreliable and cannot be discarded wholly.

25. The learned Trial Court on considering the evidences observed that

if anyone else had committed the crime, the appellant would have raised

alarm and informed others about the same but it did not happen. Rather,

the dead-body was found with multiple wounds. The learned Trial Court

also noted the strained relationship between the appellant and the

deceased after the appellant contracted a second marriage and came to the

conclusion that the appellant was responsible for the death of the deceased

and, accordingly, convicted the appellant.

26. We have noted from the evidence available that it is not in dispute

that the death occurred in the house of the appellant in the night time

when the deceased and other members were sleeping. There is evidence

on record that at the time of occurrence, the appellant was in the same

house and the deceased was his wife, who was lying dead on the bed.

There is nothing on record to suggest the presence of any other person

other than the son and second wife of the appellant. However, the second

wife of the appellant did not give any evidence in favour of the prosecution.

Neither she came forward in favour of her husband in defence. In other

words, the second wife chose not to speak anything about the incident.

As regards the other relative, i.e., the son of the appellant, he

denied having any knowledge as to who had caused the death of his

mother. He only stated that in the morning, he saw his mother lying dead

on her bed and his father was sleeping at that time. On the day of the

occurrence, he was also present in the house. Though he stated that there

was no quarrel between the appellant and his mother on the day of the

occurrence, the fact remains that on the day of the occurrence, he and his

father were very much present in the house. The fact that the deceased

died in the house and her dead-body was lying on the bed has been

corroborated by the statement of other witnesses, namely, PW1, PW4, PW5

and PW9.

27. The fact that the deceased had received injuries on her body before

she died is substantiated by the post mortem report and corroborated by

the evidence of PW4, PW5 and PW9. The incident happened in the night as

death of the deceased was discovered in the morning as stated by PW2,

the son of the deceased and the appellant.

28. There is also medical evidence to show that injuries were ante

mortem and the injuries caused on the head were fatal in nature and all

the injuries were caused by blunt forced impact and homicidal in nature.

Thus, if the deceased had suffered a violent death as clearly established by

the medical evidence on record, it was not possible for any inmate of the

house not to have learnt about the incident. Admittedly, there were no

other person other than the members of the family who were present in

the house when the death occurred that is, the appellant and his son

(PW2). If that is so, the inmates of the house including the appellant had

the obligation to explain what had transpired inside the house in which the

violent death had occurred.

As also observed by the learned Trial Court if the deceased had

suffered a violent death as indicated by the number of injuries received on

her body, it was not possible that such injuries could have been received by

the deceased without any noise. The injuries received by the deceased

from the blunt forced impact clearly indicates that it can be done by none

other than the appellant as he was the only male member who had

strained relationship with her, who was sleeping in the same room. The

other inmate, PW2, who is the son, could not have caused the injuries as

the deceased was his own mother and there is no evidence that he had any

strained relation with his mother and the death did not occur in his room,

but in the room of his parents.

29. The appellant thus had a duty to explain the special circumstances

happening within the four walls of the house, failing which necessary

adverse inference could be drawn against him in terms of Section 106 of

the Evidence Act.

As discussed above, the appellant chose to remain silent without

offering any explanation as to the occurrence inside the house in which he

was very much present who, naturally, would have knowledge of what had

happened inside the house. Neither he chose to disclose anything nor he

chose to lead any evidence to prove the hypothesis or possibility of his non-

involvement or involvement of any other person.

30. It may be also noted that even though PW1 stated in his cross-

examination that the appellant did not inform him that the appellant had

killed his wife, his statement that there was a quarrel between the

appellant and his wife remains unrebutted. This evidence, even if it is

ignored, that he confessed to PW1 that he killed his wife, is a clear pointer

to the circumstances leading to death which are adverse to the appellant

and point to the guilt of the appellant.

31. Learned counsel for the appellant, however, submitted that no

weapon was used to cause the injuries and it appears that the assault on

the deceased by the appellant was due to certain quarrel or

misunderstanding between them and it cannot be said that the appellant

had any intention to kill his own wife. It has been also submitted that it

cannot be said with certainty that the appellant had any intention to kill his

wife, in which event, the conviction of the appellant under Section 302 IPC

may be converted to Section 304 IPC and the appellant may be convicted

and punished for commission of culpable homicide not amounting to

murder.

32. As regards this submission, we have given our thoughtful

consideration. It is true that no weapon was used to cause the injuries to

the deceased. From the medical evidence, it is clear that injuries were

caused by blunt force impact, which were, perhaps, caused by fist of the

appellant. However, what we have also noted is that the injuries received

by the deceased were substantial. The post mortem report clearly indicates

that the deceased had received as many as 13 injuries. It was not one or

two injuries. Further, as reproduced above, the post mortem report also

indicates contusion over various parts of the head, fractured ribs and

serious damage of the internal organs as well. Thus, a close examination of

the injuries would show that the deceased had received serious injuries all

over the body.

Under the circumstances, an inference can be drawn that the

deceased was subjected to brutal assault by the appellant causing serious

injuries on the vital parts of the body.

Therefore, this Court considering the nature and multiplicity of

injuries involved, would unhesitatingly hold that it cannot be said that the

appellant had no intention to kill the deceased or cause injuries which

would most likely to cause death. Even though the appellant might have

assaulted his wife in a fit of anger, yet in order to get the benefit of doubt

of grave and sudden provocation, it was upon the appellant to prove his

case, which was not forthcoming. Further, the nature of injuries would

indicate that the deceased was subjected to sustained assault which could

have continued for a fairly long period, as it was not possible to cause such

numerous injuries within a very short span of time by one individual.

Accordingly, the conclusion, which can be arrived at, is that the appellant

had brutally and mercilessly assaulted the deceased for a fairly long period

injuring her entire body including vital parts of the body resulting in her

death. We also have not seen any endeavour on the part of the appellant

to render any help to his grievously injured wife who was left to die on the

bed. Therefore, we are not inclined to accept the plea of the learned

counsel for the appellant that the appellant had no intention to kill his wife

and that the punishment be reduced. No mitigating circumstances have

been brought to our notice which could warrant reducing the quantum of

punishment.

33. In the present case, we are of the view that there are sufficient

circumstantial evidences, which clearly point the finger of guilt towards the

appellant. Any other conclusion other than the finding of guilt of the

appellant would be perverse in the facts and circumstances of the case.

34. For the reasons discussed above, we dismiss this appeal as devoid of

merit.

35. Send down the LCR.

                            Sd/- Malasri Nandi              Sd/- N. Kotiswar Singh
                                   JUDGE                              JUDGE




             Comparing Assistant