Sri Milan Swargiary vs The State Of Assam And Anr
2022 Latest Caselaw 3149 Gua

                                                                 Page No.# 1/16

GAHC010203212016




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

                                Case No. : Crl.A./69/2016

            SRI MILAN SWARGIARY
            S/O SRI CHANDRA SWARGIARY, VILL. BAGEMARI MADHAPUR, P.S.
            PATACHARKUCHI, DIST. BARPETA, ASSAM.



            VERSUS

            THE STATE OF ASSAM and ANR


            2:RAMU BASUMATARY

             S/O SRI DHIREN BASUMATARY
             VILL. KHATALPARA
             P.O. SONAPHULI
             P.S. SALBARI
             DIST. BAKSA
             ASSAM
             PIN 78131

Advocate for the Petitioner   : MR.M SARANIA

Advocate for the Respondent : PP, ASSAM

BEFORE

THE HON'BLE MR JUSTICE N. KOTISWAR SINGH THE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY Page No.# 2/16

For the Appellant : Mr. M. Sarania, Advocate

For the Respondents : Ms. S Jahan, Addl. PP, Assam

Date of Hearing : 10.08.2022

Date of Judgement : 23.08.2022

JUDGEMENT & ORDER (CAV)

(A.D. Choudhury, J)

Heard Mr. M. Sarania, learned counsel for the appellant. Also heard Ms. S. Jahan, learned Additional Public Prosecution, State of Assam.

2. The present appeal is preferred by the appellant against the Judgment and Sentence dated 21.01.2016, passed by the learned Additional Sessions Judge, Bajali at Pathsala in Sessions Case No. 219/2014, whereby the present appellant was held guilty of murder of his wife and he was sentenced to undergo Rigorous Imprisonment for life and a fine of Rs. 25,000/- in default of fine another S.I. for 6 (six) months.

3. The prosecution was set into motion on an F.I.R. being filed by one Ramu Basumatary, the brother of the deceased inter-alia alleging that his younger sister Teji Basumatary who has been married with Sri Milan Swargiary (accused/appellant) about 10 years back, was found brutally Page No.# 3/16

murdered by lethal weapons like axe, dao etc, in the house of appellant at about 1:30 P.M. It was further alleged that Teji Basumatary was murdered due some private grudge by her husband (appellant herein) and her in- laws with the help of some miscreants and the name of the miscreants were given in the F.I.R. itself, which includes the present appellant.

4. On such information being received, investigation was started and the F.I.R. was registered being Patacharkuchi PS Case No. 210/2012 under Sections 147/302 IPC. After completion of the investigation, the Investigating Authority laid the charge-sheet against the present appellant along with Chandra Kt. Swargiary, Gopesh Deka, Champak Pathak, Monomati Swargiary and Bina Swargiary under Sections 120(B)/302 of IPC.

5. Thereafter, upon the matter being committed, the learned Sessions Judge, framed charges against the accused under Sections 302/34 of IPC.

6. During the trial, the prosecution examined as many as 11 witnesses to bring home the charges framed against the accused. After the trial, except the present appellant, namely Milan Swargiary, the other accused were acquitted by the learned trial Court below having no evidence against them.

7. The admitted position is that there were no eye witnesses to the incident. However, the learned trial Court convicted the present appellant Page No.# 4/16

on the basis of circumstantial evidence. The learned Trial Court held that it was proved that on the day occurrence, the appellant was last seen together with the deceased wife and on the same day, she was found dead in the kitchen with multiple injuries. It was also held by the learned trial Court that the accused Milan Swargiary had failed to give any explanation regarding death of his wife at their kitchen. The plea of alibi of the accused that on the date of incident he was not in his residence and he went out to Pathsala Town in connection with his job and he was a rickshaw puller and he reached the place of occurrence subsequently, was also rejected by the learned trial Court and the learned trial court concluded that it was proved that the relation between Milan Swargiary, the appellant and Teji Basumatary, his wife was not cordial and the dead body of Teji Basumatary was found in the kitchen of Milan Swargiary. Accordingly, the learned trial Court held that the cumulative effect of last seen together, strong circumstantial evidence against the accused, failure of the plea of alibi by the accused had proved the fact that it was none else but the accused Milan Swargiary who intentionally caused the death to his wife, Teji Basumatary. The learned trial Court acquitted the other accused holding that there is no sufficient evidence against them.

8. The learned counsel for the appellant Mr. Sarania submits that there is no evidence to show that appellant was last seen together with his wife immediately prior to the occurrence of the offence, rather there are clinching material to show that Milan went out to Pathshala, a nearby town for his daily work as rickshaw puller and he was informed by fellow villagers regarding murder of his wife and was brought from Pathshala Page No.# 5/16

after the incident. He further submits that in absence of any eye witnesses, the learned court ought not to have convicted the appellant on the basis of the fact that there were quarrel between accused husband and the deceased wife inasmuch as the chain of circumstances were not complete to convict him.

9. Per contra, Ms. B Bhuyan, learned Additional PP, Assam submits that the incident occurred in the kitchen of the house where the accused and the victim used to reside and there are clinching evidence to show that no other person was seen last with the deceased victim and therefore, the suspicion points towards the husband and in such a situation the burden shifts to the accused husband to give an explanation which is lacking in the present case. There are also incriminating material to show that the husband and the wife were not maintaining a cordial relation. Therefore, the learned trial court has rightly convicted the present appellant, the learned Senior counsel submits.

10. This court has given anxious consideration to the arguments advanced by the learned counsel for the parties, perused the materials available on record including the depositions of the witnesses and the exhibits.

11. In the aforesaid backdrop, now let this Court examine the evidences and the circumstances on the basis of which the accused was convicted.

12. PW-1, the informant/ brother of the deceased lodged the F.I.R. on the Page No.# 6/16

basis of information received from his wife that Teji (deceased wife of the appellant) was killed in her kitchen and having such information, he rushed to the place of occurrence. In the place of occurrence, he found dead body of his sister in the kitchen, witnessed bottles of county liquor, rice, a dao near the dead body and also saw injury on the head of the deceased. He deposed that Milan Swargiary and Teji Basumatary used to live separately along with their 6 year old daughter adjacent to the house of the parents of Milan Swargiary. He further deposed that on the date of occurrence, Milan was at home. He also deposed that Milan had no cordial relation with the villagers. During cross-examination, he affirmed that Milan was a rickshaw puller. He further deposed that Milan was out-casted by the villagers.

13. PW-2 is another brother of the deceased Teji. He deposed that he learnt that Teji was tortured by her husband and her father in law and mother in law. He was informed about the incident by the wife of PW-1. He reached the house of Milan and found Teji dead lying in the kitchen with cut injuries. He witnessed an axe, one curved dao and one hamer near the dead body and also saw the blood stain on the axe. He also saw two bottles of county liquor near the dead body. He further deposed that he was informed by the villagers that on the day, the co-accused Champak Pathak and Gopesh Deka took liquor in the house of Milan. He saw Milan at the place of occurrence without having any tension. He also deposed that accused Champak Pathak and Gopesh Deka are friends of Milan Basumatary and they used to take liquor together at the house of Milan Basumatary. During cross-examination he deposed that he could not Page No.# 7/16

recall, who informed him that Champak Pathak and Gopesh Deka were taking liquors.

14. PW-3 is the uncle of deceased Teji. He deposed that the father-in-law and mother-in-law of Teji did not like her and therefore, Teji and Milan got separated from their parents and they lived together. After having information that Teji was found dead, he went to the house of Milan and found the dead body of Teji in the kitchen. He also saw an axe, a dao, hammer and two empty bottles of county liquor near the dead body. He deposed that villagers informed that on the day of occurrence, the co- accused Gopesh and Champak were taking liquor at the house of Milan about 11.00 AM. He further deposed that Milan reached the place of occurrence from Pathsala, which is 9 k.m. away just after the incident having information from villagers. During cross-examination, nothing material was extracted. He deposed that he do not know Champak and Gopesh. He also deposed that he cannot say who informed Milan about the occurrence.

15. PW-4 is also one relative of deceased Teji. He also deposed in the same line, e.g. the troubled marriage of Teji and Milan, living separately from their parents and that the family members of Milan were out-casted by the villagers etc. He also reached the place of occurrence after having information that Teji was murdered. However, before reaching the house of the Milan, he went to the Sarupeta Police out Post and at that time, the police were readying to go to the place of occurrence. He also deposed with the similar line that he found the body of the Teji in the kitchen with Page No.# 8/16

multiple injuries. Also saw the axe, hammer, bottles of county liquors etc. He deposed that he asked the parents of Milan about Milan, then the parents informed him that Milan had gone to Pathsala but after five minutes the accused Milan reached the place of occurrence and therefore he doubts about Milan as it is impossible to reach the place of occurrence from Pathsala within 5 minutes which is around 10 KM away. He also deposed that he did not see tears in the eyes of Milan, rather he was preparing tobacco. He was indifferent about the death of his wife. Nothing material was there in his cross-examination. However, he deposed that Teji sometimes prepared county liquor and Milan was a rickshaw puller.

16. PW-5 is also a relative of deceased Teji. He also deposed in the same line e.g. that Milan and Teji used to live separately from their parents. Milan used to ask Teji to bring money, food etc from her parents.

17. PW6 is the Senior Medical & Health Officer, who conducted the post mortem on the dead body of deceased Teji and he found the following injuries in the body.

"1. Triangular shaped injury on left molar promine 2.5 cm below left eye size 1.5 cm x 1 cm x 1 cm depth 1 cm having cotted blood.

2. 6 cm long cut injury on left cheek in front of left ear having cotted blood.

3. Cotted blood found on nostril.

4. 20 x 10 cm haemotoma found on the right side of skull extending from right ear margin to 2 cm to reach midland.

Right side of brain congested."

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PW6 opined that cause of death was shock and hemorrhage as a result of injury sustained.

18. PW7 is witness to the inquest. He deposed that on getting information that wife of Milan was killed by somebody, he went to the place of occurrence and did not see Milan there and found the dead body of Teji at the house of Milan. He signed the inquest report. During cross, he has deposed that Teji had business of county liquor and at about 3.30 p.m. he saw Milan at the place of occurrence. He affirmed that Milan is a Rickshaw puller.

19. PW8 is one relative of accused Milan and a co-villager and his house is at a distance of 400 meters from the house of Milan. He deposed that around 2.30 p.m. on the date of occurrence, he got the information that an incident took place at the house of Milan. He rushed to the place of occurrence and witnessed the dead body with multiple injuries on her body inside their kitchen. He deposed that when he reached the place there was huge gathering. He further deposed that the father of the Milan came to the place of occurrence and asked him to go to Pathshala in search of Milan as he went to pull rickshaw at Pathshala. He went to Pathshala in a bike in search of Milan and took Milan from Pathshala, who was pulling a rickshaw at Pathshala. On the way, Milan did not ask him anything. This witness also witnessed the seizure of blood stained axe, one hammer, empty liquor bottles, steel plates and steel glasses and proved the seizure list and his signature. During cross, he deposed that when he reached the place of occurrence many persons came to the place Page No.# 10/16

of occurrence. He further deposed that the father of Milan reached the place of occurrence after his appearance. He found Milan at Pathshala near State Bank of India. He deposed that deceased was wearing a 'dokhona' and half necked. Seized materials were lying in the place of occurrence. He also deposed that liquor were sold at the house of Teji. During cross, he also stated that some persons came to the house of Milan to take liquor. He said he cannot say who are the owner of the seized weapon. He denied the suggestion that he deposed falsely.

20. PW9 is Sub-inspector of police of Sarupeta police outpost, who subsequently joined the investigation as I/O after the initiation of investigation by one Paniram Das, SI, who was examined as PW10. He deposed that during investigation, he recorded the statement of accused Champak Pathak and Gopesh Deka, who surrendered before the court and thereafter he was transferred from the outpost. He did not record statement of witnesses.

21. PW10 is another Sub-inspector of police, who on receipt of the First Information from one Ratan Swargiary that somebody killed Teji and after receipt of such information GD entry was created and he proceeded to the place of occurrence. He received the information at around 3.30 pm. He reached the place of occurrence at 4.15 p.m., found Teji dead in her kitchen with injuries. He conducted the inquest in presence of Circle Officer one Bikram Sarma. He recorded the statement of witness and on the same date written ejahar was lodged by PW1 at about 8.30 p.m. On the basis of written ejahar, he created another GD entry on 15.10.2012 Page No.# 11/16

and same was forwarded to the Officer-in-Charge, Patasarkuchi police station. Accordingly, the case was registered in Patasarkuchi police station. He arrested accused Milan and Chandrakant Swargiary. In the meantime, he was transferred. He deposed that PW1 did not state before him that the victim used to gave bicycle and money to Milan and Milan used to torture her. He also stated that PW1 did not state before him that father- in-law of Teji threatened to kill Teji. He deposed that bottle, dao, exe etc. were found in every house. He did not send the seized article for FSL etc.

22. PW 11 was another Sub-Inspector of police of Sarupeta police outpost and he was entrusted with the investigation. He only submitted the charge-sheet.

23. The accused in the statement recorded under Section 313 Cr.P.C. stated that he is innocent and was not present in his house at the time of occurrence and at the time of occurrence, he was pulling rickshaw at Pathshala town. He received information at Pathshala town at about 3.30 p.m.

24. In the aforesaid backdrop now let this court consider, whether the learned Sessions Judge was right in holding the accused guilty and convicting and sentencing him to undergo life imprisonment under Section 302 IPC on the basis of circumstantial evidence.

25. The law is by now too well settled that when prosecution case is based Page No.# 12/16

on circumstantial evidence, the accused can be convicted on the basis of such circumstantial evidence only when all incriminating facts and circumstances are established towards the guilt of the accused.

26. The Hon'ble Apex Court in Padala Veera Reddy -vs- State of Andhra Pradesh and Others reported in AIR 1990 SC 79 while dealing with such an issue held at paragraph--as follows:-

"(1) the circumstances from which on inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence".

27. Such proposition of law was subsequently followed in the case of State of UP -Vs- Ram Balak and Anr reported in 2008 13 SCALE

541.

28. The admitted position is that there is no eye witness. From the material available on record, it is also established that not a single witness had last seen the accused with his deceased wife together. The prosecution through the witnesses more particularly the PW2, PW3, PW4, PW5, PW8 proved that Teji was found dead in her kitchen with Page No.# 13/16

multiple injuries. It is also proved beyond doubt that at the place of occurrence certain weapons including a dao and hammer was found. The prosecution has also proved beyond reasonable doubt through the evidence of PW6 and Ext. 3 (the inquest report) and Ext. 2 (the post mortem report) that death of Teji Basumatary was caused due to the injury inflicted on her body and the death was homicidal in nature. Therefore, the next question that arises for consideration of this court is who killed the deceased victim Teji? The material available on record shows that appellant Milan was not present at the place of occurrence and it is also proved that Milan was a rickshaw puller. Except stating that Milan and Teji used to reside in the same house and in the kitchen of the said house body of Teji was found, no prosecution witness had stated that prior to death they have seen or witnessed Milan with Teji.

29. Being the husband of the deceased suspicion is pointed by the prosecution towards the accused husband in view of the material evidence that dead body was found murdered inside the house, where husband and wife used to reside. However on explanation given by the accused/ appellant as discussed hereinabove and supported by PW1 and PW8, the onus shifted to the prosecution to prove that it is Milan, who committed the offence. However, there are no materials on record available to have such finding.

30. The evidence available on record, in the considered opinion of this Court, by no stretch of imagination had established the hypotheses of the guilt of the accused inasmuch as there is no conclusive chain of circumstances to exclude every possible hypothesis except that the accused Milan is guilty. In the case in hand, the material available on Page No.# 14/16

record discloses no chain of evidence, not to say any chain of evidence so complete, not to leave any reasonable ground for conclusion consistent with the innocence of the accused persons and showing that in all human probability the act must have been done by the accused.

31. There is no material on record which discloses that immediately prior to the incident Milan was seen together with deceased Teji. Though the learned Trial Court relied on the certain circumstances such as the deposition of the witnesses that the relation between Milan and Teji were not cordial and there were earlier quarrels between the parents of Milan and Teji and for that reason they started leaving separately but there is no material to show that prior to the incident there were any specific quarrel between Milan and Teji.

32. The Hon'ble Apex Court in Paramjeet Singh @ Pamma -vs- State of Uttarakhand reported in 2010 10 SCC 439 held that the cases where circumstantial evidence is relied upon, the circumstance must be so convincing that no other conclusion can be arrived at than the guilt of the accused, which must adequate to convict the accused. It is also well settled that last seen theory comes into play when the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased found dead is so small that the possibility of any person other than the accused being the perpetrator of the offence is inconceivable.

33. In the present case in hand as discussed herein above, not a single accused has deposed that they have last seen together the accused and the victim alive on the fateful day together. The dead body was found between 02:00 PM to 02:30 PM, the villagers gathered at Page No.# 15/16

the place at that point of time, police came to the place of occurrence around 03:30 PM and the accused Milan reached from Pathsala around 03:30 PM. The material evidences are also there that Milan is a rickshaw puller and he used to go for his livelihood to Pathsala Town. In the aforesaid backdrop, the last seen theory that has been applied in the present case was erroneous. As discussed above, the conviction of accused Milan is based on circumstantial evidence as no one has seen him committing the murder of his wife deceased, Teji.

34. It is well settled that while dealing with a conviction based on circumstantial evidence, the circumstances from which the conclusion of the guilt is to be drawn should in first instance be fully established and all the facts so established should also be consistent with only one hypothetic i.e. guilt of the accused, which would mean that the onus lies on the prosecution to prove that the chain of event are complete and not to leave any doubt in the mind of this Court. Such view of this Court finds support from the decision of the Hon'ble Apex Court in Majendran Langeswaran vs- NCT of Delhi & Anr. reported in 2013 7 SCC 192.

35. In the case in hand, the circumstance that the petitioner was last seen together was not even proved. There is no other material which shows definite tendency unerringly pointing towards guilt of the accused. The only circumstance in this case is that both the accused and the deceased are husband and wife and they resided in the house where the body of the deceased was found.

36. In view of the forgoing reasons and discussions, this court is of unhesitant conclusion that there is no evidence to implicate and convict Page No.# 16/16

the appellant for committing murder of his wife Teji. The present appeal is accordingly allowed. The appellant/accused is acquitted from the charges of murder of his wife and resultantly the judgment and sentence dated 21.01.2016 passed by the learned Additional Sessions Judge, Bajali at Pathsala in Sessions Case No. 219/2014 is set aside and quashed.

37. The appellant be set at liberty forthwith, if his custody is not required in connection with any other case. LCRs be returned back.

                                       JUDGE                     JUDGE




Comparing Assistant