Page No.# 1/26 vs The State Of Assam And Anr
2022 Latest Caselaw 906 Gua

                                                             Page No.# 1/26

GAHC010018702015




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

                            Case No. : Crl.A./199/2015

          SRI BABUL SAIKIA and 4 ORS
          S/O LATE DEHIRAM SAIKIA

          2: JAYANTA SAIKIA
           S/O SRI BABUL SAIKIA

          3: SMTI INDUMOTI SAIKIA
          W/O SRI BABUL SAIKIA

          4: SMTI DIPALI SAIKIA

          5: SMTI MAMONI SAIKIA
           BOTH ARE DAUGHTER OF SRI BABUL SAIKIA
          ALL ARE R/O VILL. NANOI KACHUPIT GAON
           P.S. NAGAON SADAR NANOI OUT POST
           DIST. NAGAON
          ASSAM

          VERSUS

          THE STATE OF ASSAM and ANR
          REPRESENTED BY THE LEARNED PUBLIC PROSECUTOR, GAUHATI HIGH
          COURT, GUWAHATI.

          2:INDRA KANTA BORAH
           S/O LATE SONARAM BORAH
           R/O NONOI MIKIRPAR
           URIA GAON
           P.S. NAGAON SADAR
           DIST. NAGAON
          ASSAM

Advocate for the Petitioner : MR.P P BORTHAKUR
Advocate for the Respondent :

Page No.# 2/26

BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE ROBIN PHUKAN

JUDGMENT & ORDER (CAV) Date : 15-03-2022

(Suman Shyam, J)

Heard Mr. A. Chamuah, learned counsel for the appellants. We have also heard Ms.

S. Jahan, learned Addl. P.P. Assam appearing for the State. None has appeared for the

informant/ respondent in this case.

2. The five appellants, have approached this Court by presenting the instant appeal

against the common judgment dated 13-07-2015 passed by the learned Sessions Judge,

Nagaon in Sessions Case No. 104(N)/ 2009 convicting them under Section 302 read with

Section 34 of IPC and sentencing each of them to undergo rigorous imprisonment for life

and also to pay fine of Rs. 10,000/- each with default stipulation.

3. The prosecution case, as unfolded from the materials available on record, is to the

effect that the victim Tuni Bora had eloped with the appellant No. 2 Jayanta Saikia and

got married with him about 1 year 4/5 months prior to the date of the incident. On 26-04-

2009, Tuni Bora committed suicide in the premises of the house of the appellants by

hanging herself with a rope from a (Jamun) blackberry tree. According to the prosecution,

the victim was compelled to commit suicide being unable to withstand the torture meted

out to her by the accused persons.

4. On 27-04-2009, Sri Indra Bora, i.e. the father of the victim had lodged an ejahar Page No.# 3/26

with the Officer-in-Charge of Nonoi Police Outpost informing him that his daughter, having

been unable to face harassment as well as mental and physical torture meted out by her

husband Jayanta Saikia, had committed suicide on 26-04-2009 by hanging herself from a

"rose apple tree" behind their house. Upon receipt of the FIR, the Police from the Nonoi

Outpost made G.D. entry No. 376, dated 27-04-2009 and forwarded the FIR to the

Officer-in-Charge (O/C) of Nagaon Police Station for registering a case. Accordingly,

Nagaon P.S. Case No. 534/2009 was registered under Section 498(A)/306 IPC against all

the accused persons, who are the members of the same family and the matter was taken

up for investigation. On completion of investigation, charge-sheet was laid against the five

appellants/accused persons viz. Babul Chandra Saikia @ Bohola, Jayanta Kumar Saikia,

Indumati Saikia, Dipali Saikia and Mamoni Saikia under Section 498(A)/302 IPC. Be it

mentioned herein that Jayanta Saikia is the husband of the deceased, Babul Ch. Saikia

and Indumati Saikia are his father and mother respectively and Dipali Saikia and Mamoni

Saikia are his sisters. It appears from the record that on the basis of the charge-sheet

submitted by the Investigating Officer (I/O), the learned Sessions Judge, Nagaon, by the

order dated 12-08-2009, had framed formal charge against the accused persons under

Section 306/ 498(A) read with Section 34 IPC. It further appears that subsequently, by

another order dated 03-01-2015, the learned Sessions Judge had re-framed the charge

under Section 302/34 of the IPC against all the accused persons.

5. Prosecution had examined 11 (eleven) witnesses so as to bring home the charge

brought against the accused persons. Out of the eleven witnesses, PW-6 and PW-7 were

recalled and examined twice. After recording of evidence of the prosecution side, the Page No.# 4/26

statement of the accused persons were examined and their statements recorded under

Section 313 of the Cr.P.C., whereby they had denied all the incriminating circumstances

put to them. On conclusion of trial, the learned Addl. Sessions Judge, Nagaon had held

that since the accused persons were admittedly staying in the same house with the

deceased on the day of the incident and the body of the deceased was found hanging

from the tree in their back yard with one of her legs touching the ground and considering

the fact that there is no proper explanation from the accused persons as to the

circumstances under which the victim had died, the case of the prosecution stood fully

established on the basis of circumstantial evidence. The learned trial court has also taken

note of the evidence of the doctor (PW-8) who had opined that the death was on account

of asphyxia due to strangulation and held that since the legs of the victim were touching

the ground it could not be a case of suicidal hanging.

6. Mr. Chamuah, learned counsel for the appellants has assailed the impugned

judgment on several grounds. According to Mr. Chamuah there is no evidence to show

that there was acrimony between the victim and the appellants and the motive behind the

alleged crime could not be established by the prosecution. Considering the fact that the

house in which the appellants were residing did not have any concrete boundary wall, the

premises were easily accessible to a third person. Therefore, the possibility of the victim

either committing suicide or being murdered by any unknown person including brother of

the deceased, as honour killing cannot be ruled out in this case. By referring to the

decision of the Supreme Court rendered in the case of Bodhraj @ Bodha & Ors. Vs.

State of J&K, reported in (2002) 8 SCC 45 and Dev Kanya Tiwari Vs. State of UP , Page No.# 5/26

reported in (2018) 5 SCC 734, Mr. Chamuah has argued that the prosecution has failed

to establish the charge brought against the accused persons beyond reasonable doubt by

adducing circumstantial evidence.

7. Referring to the medical evidence brought on record, it is the submission of Mr.

Chamuah that the Postmortem Report (Ext-2) is inconclusive and the same is also full of

contradictions. The learned counsel for the appellants has relied on the decision of the

Supreme Court in Maula Bux & Ors. Vs. State of Rajasthan, reported in (1983) 1

SCC 379, Para- 4 to argue that some of the scratches/ injuries on the dead body might

have been caused during the Postmortem Examination. However, since the doctor has

failed to indicate as to how the injuries in the dead body had occurred, the same would

not have any bearing in establishing the charge brought against the appellants. According

to Mr. Chamuah the observations and findings of the Doctor in the Postmortem Report

(Exhibit-2) do not conclusively establish that it is a case of homicidal death caused due to

strangulation.

8. Contending that there is no admission of guilt from the accused persons in their

statement recorded under Section 313 Cr.P.C., Mr. Chamuah has argued that the learned

court below has committed an error in arriving at such a finding. The learned counsel

submits that even assuming that the accused persons had admitted their guilt, even then,

no conviction can be awarded merely on the basis of admission made by the accused

under Section 313 Cr.P.C. In support of his above argument, Mr. Chamuah has relied

upon the law laid down in the case of Reena Hazarika Vs. State of Assam, reported in

(2019) 13 SCC 289.

Page No.# 6/26

9. By relying upon the decision in the case of Natasha Singh Vs. CBI (State),

reported in (2013) 5 SCC 741. The learned counsel has further argued that the

provision of Section 311 Cr.P.C. cannot be misused by the trial court to recall witnesses so

as to fill up the lacuna in the prosecution case. The learned counsel for the appellant

further submits that there is no finding on meeting of minds of the accused persons

showing common intent on their part to commit the alleged offence and hence, conviction

of the accused with the aid of Section 34 of IPC is also bad in law.

10. Ms. S. Jahan, learned Addl. P.P. Assam, on the other hand, has argued that the

opinion of the Doctor(PW-8) clearly goes to show that it is a case of homicidal death due

to strangulation. The inquest report (Exhibit-4) supports the conclusion of the doctor. It is

the submission of Ms Jahan from the Postmortem Report (Exhibit- 2) as well as the

inquest report (Exhibit-4) it would be established beyond doubt that it is a case of

homicidal death due to strangulation and it was none other than the appellants who had

killed her. She submits that there is no finding in the Postmortem Report to the effect that

hyoid bone was fractured which is usually found in case of hanging. Contending that the

Supreme Court in the case of Ponnusamy Vs. The State of Tamil Nadu, reported in

(2008) 5 SCC 587 has dealt with the above issue in the light of the observation made

in the text book of Modi on Medical Jurisprudence and Toxicology, the learned Addl. P.P.

has argued that only in a small fraction of cases, hyoid bone is found fractured in case of

strangulation. The learned Addl. P.P. has also argued that evidence brought on record has

conclusively established that occurrence took place in the midnight when the neighboring

people were fast asleep and at that time, the deceased was admittedly staying in her Page No.# 7/26

matrimonial home along with the appellants. Next morning the deceased was found

hanging within the compound of their house and the conduct of the appellants after the

incident, more particularly that of the appellant No. 2, who had failed to inform the Gaon

Burah and the Police, lends further supports to the prosecution story. She submits that

the loop of the rope was tied with two branches of the tree which would not have been

possible for the victim to do on her own, if it was a case of suicide. Although the

appellants/ accused persons were living in the same house on the night of the incident,

yet, they have failed to offer any reasonable explanation as to the circumstances under

which the victim had died. In view of the above, submits Ms. Jahan, the learned trial

court has rightly convicted the accused persons for committing the murder of the victim

and sentenced them to undergo rigorous imprisonment for life.

11. We have taken note of the arguments advanced by the learned counsel for both

the sides and have carefully gone through the materials on record. Since the basic

argument of the appellants counsel is to the effect that the prosecution has failed to

establish the charge brought against his clients beyond reasonable doubt we deemed it

appropriate to briefly discuss the evidence brought on record by the prosecution.

12. PW-1 Sri. Jogen Sarma is a neighbor of the accused persons. He has deposed that

the occurrence took place about 1½ years back. He was sleeping in his home at night

when he heard cries coming from the house of his neighbour. Then he went out of the

house and saw that the family members of Jayanta were crying. He asked them as to

what had happened and they replied that their daughter-in-law 'Tuni' has died and she

has committed suicide by hanging. Then he asked the father of Jayanta to inform the Page No.# 8/26

Gaon Burah but he did not know whether the Gaon Burah was informed. During his cross-

examination PW-1 had stated that Jayanta had married Tuni out of love affair and the

house of Jayanta was situated at a distance of 100 meters from his house.

13. Sri Indra Bora, who is the father of the victim, was examined as PW-2. He has

deposed to the effect that his daughter Tuni had eloped and married Jayanta and she

started living in his house. On the day of the occurrence, in the morning, he was informed

by some persons that his daughter has committed suicide by hanging herself. He then

went to the house of Jayanta and saw his daughter hanging from a rope. He lodged an

FIR before the police and Exhibit-1 was the said FIR which contains his signature Exhibit-

1(1). PW-2 has stated that he suspected that his daughter had been killed by the accused

persons. During cross-examination, PW-2 has stated that his daughter (Tuni) had eloped

with Jayanta and he is not in visiting terms with Jayanta. He did not have any information

if his daughter was tortured by the accused. This witness had denied having stated before

the Police that his daughter had committed suicide as she was not given the status of

wife by the accused. PW-2 had also stated that he did not visit the house of Jayanta

because his daughter had eloped with him without their consent.

14. Sri Sarbeswar Nath, another neighbor of the accused, was examined as PW-3. This

witness has deposed that he knew the accused persons as well as the deceased. The

deceased got married out of love affair. He was sleeping at night when he heard hulla

coming from the house of Jayanta Saikia. He got up from bed and asked Jayanta's father

as to what had happened. He replied that Tuni had committed suicide by hanging herself.

He then came back home. During his cross-examination PW-3 had stated that he had no Page No.# 9/26

knowledge if there was any quarrel between Jayanta and Tuni. Rather he has deposed

that he did not see any quarrel taking place between the two.

15. PW-4 Sri Rajen Nath is another neighbor of the accused persons. He has deposed

before the court that he knew Tuni and she was the wife of Jayanta Saikia. On the date of

the occurrence, at about 04:00 a.m. he was at his home when Babul (appellant No.1) had

called him from the road. Then he asked as to what had happened and he (Babul)

informed that his daughter-in-law had committed suicide by hanging herself. He then

asked him (Babul) to inform the Police. In the morning, he came to the house of Jayanta

and saw the dead body of Tuni hanging from the tree. This witness has stated that he did

not have any information regarding any torture on Tuni. PW-4 has, however, confirmed

that Tuni had a love affair with Jayanta and she had eloped with him.

16. Sri Surjya Kumar Baruah (PW-5) is another neighbor of the accused persons who

has deposed that he knew Tuni Saikia and she had committed suicide by hanging herself.

PW- 5 has further deposed that Tuni Saikia and Jayanta were living together as husband

and wife and Tuni was given the status of wife by the family of the accused.

17. Smti. Annmai Bora (PW-6) is the mother of the victim and she has deposed to the

effect that the accused Jayanta is her son-in-law and he was married to her daughter

about 1½ years back. After the marriage, there was virtually no relationship between her

family and the son-in-law. They were not in visiting terms. One morning, some neighbors

of the accused persons informed them that their daughter Tuni Bora has been found

hanging in her husband's house. She became unconscious after hearing the news. Some

neighbors came to their house. Then her other daughters went to the house of the Page No.# 10/26

accused. After returning from there, they informed her that Tuni Bora was found hanging

in the backside of the house of the accused persons. PW-6 has further deposed that she

went to the Police Station and visited the house of the accused. During her cross-

examination this witness had stated that her daughter had a love affair with the accused

Jayanta Saikia and eloped with him but no formal marriage was performed. Tuni used to

live in the house of Jayanta Saikia as his wife. They were annoyed with her for going with

the accused and as such, did not visit the accused persons after their daughter had

eloped with Jayanta. Tuni also did not visit their house. This witness has further deposed

that when Tuni had eloped with the accused, her brother, out of anger, had burnt her

cloths.

18. PW-7 Lakhimai Kakati is the aunt of the victim and she has deposed that Tuni had

eloped with Jayanta and was staying in his house. After about 1½ years Tuni was found

hanging on the backside of the house of the accused. On being informed by the

neighbors of the accused persons that Tuni had hung herself, she went there to see the

dead body and found Tuni hanging. PW-7 has stated that Tuni had died under suspicious

circumstances and she thought it was a case of murder. During her cross-examination

PW-7 has stated that house of the accused person was at a distance of 1 k.m. from their

house and that no marriage ceremony between Tuni and Jayanta had been performed.

19. PW-8 Sri P.K. Sarma was the SDM and HO on duty at the B.P. Civil Hospital,

Nagaon on 28-04-2009 when the dead body of the victim was brought there for

conducting Postmortem Examination. PW-8 had conducted the Postmortem Examination

on the dead body. As per the Postmortem Report (Exhibit-2) there were abrasions at the Page No.# 11/26

lower end of the right leg. Ligature marks were seen horizontally, complete at the level of

thyroid cartilages. There were ecchymosis, fracture of thyroid cartilage and fracture of

lower end of febula bone. PW-8 has proved the Postmortem Report (Exhibit-2) and has

deposed that it is not a case of hanging but a case of asphyxia due to strangulation.

During his cross-examination, PW-8 has deposed that in a case of hanging, fracture on

the neck is not found. All injuries were ante mortem in nature. He has further deposed

that in case of hanging, ligature mark is high upon the neck, obliquely upward and

deficient (posteriorly) which means ligatures mark would not be found on the posterior

side. Doctor has further opined that in hanging there could not be fracture of thyroid

cartilage. In hanging there would be parchmentisation. However, PW-8 has clarified that

both in strangulation and hanging, there would be asphyxia. The Doctor (PW-8) has,

however, denied the suggestion that it was a case of hanging and not strangulation.

20. The investigation in connection with Nagaon P.S. Case No. 534/2009 was carried

out by Sri Karuna Kanta Das who was examined as PW-9. The PW-9 has deposed that on

27-04-2009, while he was functioning as the O/C of the Nonoi Police Outpost, one

Narayan Kalita had submitted a petition informing that on 26-04-2009, one woman by the

name Tuni Bora was found hanging in the backyard from a 'Jamuk' tree and he could see

the dead body of the deceased on 27-04-2009 in the morning. Accordingly, U.D. Case No.

20/2009 was registered. Thereafter, he took up the matter for investigation. PW-9 has

stated that he had proceeded to the place of occurrence, drew sketch map (Exhibit-3)

and also gave requisition for conducting inquest on the dead body of the deceased by one

Executive Magistrate. PW-9 has also stated that Executive Magistrate Sri Bibhas Modi had Page No.# 12/26

conducted inquest over the dead body and Exhibit- 4 is the inquest report. In his attempt

to prove the Inquest Report (Exhibit-4), PW-9 had identified the signature of the

Executive Magistrate in the Inquest Report as Exhibit-4(1). The I/O has further deposed

that the dead body of the deceased was sent for Postmortem Examination to the Nagaon

Civil Hospital. Thereafter, he had interrogated the family members of the deceased as well

as the accused persons. Upon recording the statement of the witnesses and on receipt of

the Postmortem Report, he had submitted charge-sheet against the accused persons

under Section 498(A)/302 IPC. PW-9 has proved the charge-sheet (Exhibit-5) by

identifying his signature thereon as Exhibit-5(1). During the cross-examination, PW-9 has

maintained that the FIR in this case had been lodged by one Narayan Kalita. The family

members of the deceased were called to the Police Station and their statements were

recorded. He had gone to the place of occurrence on the basis of the FIR lodged by

Narayan Kalita but he had investigated the case based on the FIR lodged by Indra Bora,

i.e. PW-2. The I/O has stated that he has recorded the statement of Narayan Kalita.

21. It appears that Lakhimai Kakati, who was earlier examined as prosecution witness

No. 7 and her statement recorded on 10-01-2011, was recalled and re-examined again on

09-12-2013 as PW-10. On this occasion PW-10 has stated that on receipt of information

that Tuni Bora had died in the house of her husband she immediately rushed to that place

with many other people and saw that Tuni was hanging from a branch of a 'Jamuk' tree,

which is behind the house of the accused and the legs of the deceased were touching the

floor. She believed that this was not a case of suicide. During her cross-examination, PW-

10 has stated that she had heard from the people that Tuni had committed suicide but Page No.# 13/26

she was actually hanged after her death. She had stated that it is not a case of suicide.

PW-10 has also denied the suggestion put to her that Tuni Bora had committed suicide.

22. PW-11 Annmai Bora i.e. the mother of the victim, who was earlier examined as

PW-6 and her evidence recorded on 10-01-2011 was re-called and re-examined on 09-12-

2013. PW-11 has stated that there was strained relationship between the family of

accused and their family. At the relevant time in the year 2009, they had received

information that her daughter Tuni Bora has been killed by the family members of the

accused Jayanta and they suspected them of killing their daughter. PW-11 has stated that

her daughter was kept hanging at a 'Jamuk' (berry) tree behind their house. The witness

has further deposed that after seeing the dead body of her daughter, she became nervous

and senseless. She could not say what had happened thereafter in the house of the

accused. However, later on, they had accompanied the villagers to the Police Station and

her husband Indra Bora had lodged an FIR based on which, a case was registered.

23. In the statement of the accused persons recorded under Section 313 Cr.P.C. they

have maintained that the deceased had committed suicide by hanging herself. Accused

Babul Saikia had stated that he had informed PW-4 since he was the Gaon Burah(village

Headman) and that they were in no way involved with the case. While they were sleeping

in their house they did not find the deceased and after searching for her, found her

hanging in a rope in the back side of the house. Similar is the version of the other

accused persons.

24. From a scrutiny of the materials available on record, it transpires that the case

initially projected by the prosecution was one of suicide committed by the victim by Page No.# 14/26

hanging herself being unable to bear the torture meted out to her by her in-laws.

Subsequently, charge was re-framed under Section 302/34 IPC and trial against the

appellants/ accused persons proceeded on the basis of the aforesaid charge. On a careful

reading of the evidence available on record, we find that the prosecution witnesses Nos. 1

to 7 had deposed before the court in one voice stating that according to their knowledge

and information, the victim had committed suicide. Their testimony to the above effect

finds due corroboration from the materials available on record. However, the prosecution

case took a turn after the evidence of the Doctor (PW-8) was recorded on 29-09-2012.

The I/O (PW-9) was examined on 05-06-2013. Thereafter, the two witnesses PW- 6 and

PW-7 were recalled and re-examined as PW-10 and PW-11.

25. The I/O has deposed that the FIR in this case was lodged by one Narayan Kalita in

the morning of 27-04-2009, based on which G.D. case was registered and he took up the

matter for investigation. However, Narayan Kalita was not examined as a witness nor was

the complaint filed by him on 27-04-2009 exhibited. Therefore, the contents of the

complaint lodged by Narayan Kalita is not known. It appears from the evidence of PW-9

the complaint lodged by Narayan Kalita, in all probability, is the actual FIR in this case.

26. As per the Inquest Report Exhibit-4, some black ashes like substance was found in

both the hands of the deceased. Marks of tying with rope was also seen in the lower part

of the neck, blood stains were seen in the upper side of the right heel and blood clotting

were seen in both the legs. Saliva in the mouth was found to have dried. However, we

find that author of the Inquest Report, viz. Executive Magistrate Sri. Bibhas Modi has not

been called as witness. Rather the Inquest Report (Exhibit-4) has been exhibited by the Page No.# 15/26

I/O (PW-9). The I/O may be able to exhibit the Inquest Report but in our view he was not

competent to prove the contents of Exhibit- 4.

27. Having held as above, we find that save and except the sole testimony of Doctor

(PW-8), there is no evidence on record to even remotely indicate that the deceased had

died a homicidal death. Rather, the bulk of evidence available on record points towards

one direction suggesting that it is a case of suicide by hanging. However, since the

learned counsel for both the sides have addressed elaborate arguments on the

correctness of the Doctor's opinion based on the Postmortem Report, we deem it

appropriate to deal with some of the arguments in the manner indicated here-in-below:-

28. According to Mr. Chamuah the Postmortem Report (Exhibit-2) indicates that the

thyroid cartilage was fractured but the laryngeal prominence was intact. By referring to

the Postmortem Report, Mr. Chamuah has further argued that although the PW-8 had

mentioned that there were ecchymosis and fracture of thyroid cartilage but he did not

mention the status of the hyoid bone which, according to him, was of vital importance in

determining as to whether it was a case of suicide or strangulation. Mr. Chamuah submits

that if the thyroid cartilage was in fact fractured then it is not possible that larynx and

trachea would remain healthy and intact as shown in the Postmortem Report. Insofar as

the entry made in the inquest report to the effect that one of the legs was found touching

the ground, Mr. Chamuah submits that in case of partial hanging, the legs could be found

touching the ground. In order to substantiate his above arguments Mr. Chamuah has

relied upon and referred to the opinions expressed in the book " Forensic Medicine And

Toxicology" by J.B.Mukherjee (4th Edition).

Page No.# 16/26

29. In Chapter 8 of the Mukherjee's Volume under the heading " Violent Asphyxial

Deaths: Hanging", it has been mentioned that positions such as Kneeling, reclining etc.

with feet, knee or heels touching the ground because of low suspension, in case of partial

hanging are the most diagnostic findings of suicidal hanging. The above opinion of the

Expert, as apparent from J.B. Mukherjee's volume, appears to support the submission of

Mr. Chamuah that in case of partial hanging, feet touching the ground could be a common

phenomenon.

30. Drawing a distinction between ligature marks in case of suicidal hanging and

strangulation, the following observations have been made in J.B. Mukherjee's Volume,

which are quoted herein below:

"Suicidal Hanging: Oblique, non-continuous, high up in the neck usually; may be transverse, nearly circular in case of low suspension at or below the level of thyroid cartilage, as in partial hanging. Base of the mark is pale, hard and parchmentised, sub-cutaneous tissue underneath is hard, white and glistening. Strangulation: Transverse, Circular, Complete, Continuous. Low down in the neck; it may simulate suicidal hanging, if homicidally hanged, on being hanged up from behind or hanged immediately after death, killing having been done by means other than hanging. The base of the mark is soft and reddish while the subcutaneous tissue under the mark may be ecchymosed."

31. It has further been mentioned in Mukherjee's volume that in case of suicidal

hanging, fracture of hyoid, even though less common, may be noticed at times but

fracture of thyroid, cricoids, larynx and trachea are unusual, whereas in case of

strangulation, fracture of hyoid is uncommon. It has further been opined that in case of

"suicidal strangulation" injury to deeper structures of the neck will be insignificant if not

none. Apart from absence of signs of struggle and resistance, there will be overt evidence

of self destruction though not very common, yet, it is quite possible to strangle oneself by Page No.# 17/26

a ligature.

32. Insofar as the presence of saliva is concerned, the observations made in the J.B.

Mukherjee's Volume are as follows:

"Saliva: Saliva will be found to trickle down from the lower angle of the mouth, down the chin on the chest in straight lines, opposite to the side of the knot in the ligature.The secretion of saliva is a vital act indicative of suspension during life, for the secretion ceases after the cessation of circulation."

33. The difference between hanging and strangulation has been pointed out in Chapter

20- "Death from Asphyxia" in the Textbook of Medical Jurisprudence and Toxicology by

Modi, which is reproduced herein below:

                    Hanging                                         Strangulation
1.    Mostly suicidal                              1.   Mostly homicidal
2.    Face- Usually pale and petechiae rare        2.   Face- Congested, livid and marked with
                                                   petechiae
3.   Saliva- Dribbling out of the mouth down       3.   Saliva- No such dribbling.
on the chin and chest.
4.   Neck- Stretched and elongated in fresh        4.   Neck- Not so
bodies
5.   External signs of asphyxia, usually not       5.    External signs of asphyxia, very well
well marked                                        marked (minimal in death due to vasovagal and
                                                   carotid sinus effect).
6.   Ligature mark- Oblique, non-continuous        6.    Ligature mark- Horizontal or transverse
placed high up in the neck between the chin        continuous, round the neck, low down in the
and the larynx, the base of the groove or          neck below the thyroid, the base of the groove
furrow being hard, yellow and parchment-like.      or furrow being soft and reddish.
7.   Abrasions and acchymoses round about          7.   Abrasions and ecchymoses round about
the edges of the ligature mark, rare.              the edges of the ligature mark, common.
8.   Subcutaneous tissues under the mark-          8.   Subcutaneous tissues under the mark-
White, hard and glistering.                        Ecchymosed.
9.    Injury to the muscles of the neck- Rare      9.  Injury to the muscles of the neck-
                                                   Common.

10. Carotid arteries, internal coats ruptured in 10. Carotid arteries, internal coats ordinarily violent cases of a long drop. ruptured.

11. Fracture of the larynx and trachea- Very       11. Fracture of the larynx trachea and hyoid
rare and may be found that too in judicial         bone.
hanging.
                                                                                               Page No.# 18/26

12. Fracture-dislocation of the cervical          12. Fracture-dislocation of the cervical
vertebrae- Common in judicial hanging.            vertebrae- Rare.
13. Scratches, abrasions and bruises on the       13. Scratches, abrasions fingernail marks and

face, neck and other parts of the body- Usually bruises on the face, neck and other parts of the not present. body- Usually present.

14. No evidence of sexual assault. 14. Sometimes evidence of sexual assault.

15. Emphysematous bullae on the surface on        15. Emphysematous bullae on the surface of
the lungs- May be present.                        the lungs- Not present.

34. From a careful reading of the opinion expressed in the textbooks of J.B. Mukherjee

and Modi, we find that the possibilities of existence of ligature marks both in case of

suicidal hanging and strangulation cannot be entirely ruled out. Moreover, although saliva

is uncommon in case of hanging, yet, dried saliva at times is found even in case of death

due to suicidal hanging. We also find that in case of partial hanging it is possible that the

feet of the victim is found touching the ground and therefore, merely because the legs of

the victim was found to be touching the ground, the same cannot be a conclusive proof of

the fact that this was a case of hanging after death.

35. In the case of Ponnusamy (Supra), the Apex Court, while referring to the

opinion in "Modi's Medical Jurisprudence and Toxicology" has observed that the opinion of

the learned author by itself did not lead to the conclusion that fracture of hyoid bone is a

must in all cases of hanging. However, in this case the postmortem report does not clearly

mention about the status of the hyoid bone. Therefore, there is no scope for this court to

make any assessment on the basis of condition of the hyoid bone. The PW-8 has also not

indicated the nature of fracture in the febula bone. The ecchymosis seen in the dead body

could be due to strangulation or it could be for any other reason including use of rope for

suicidal hanging. The features noticed in the dead body during post mortem examination, Page No.# 19/26

viewed in the light of the opinions expressed in the Volumes of J.B. Mukherjee and Modi

no doubt indicate that it could be a case of strangulation but such features, in our

opinion, fails to conclusively establish that death of the deceased was by way of

strangulation and not suicidal hanging.

36. The PW-8 has also opined that in both strangulation and hanging there would be

asphyxia. From the medical evidence available on record only one aspect has been

properly established and that is the fact that death of the victim was due to asphyxia.

37. Coming to the facts of the present case, as noticed above, we have already held

that save and except the testimonies of PW-10 and PW-11, none of the witnesses apart

from the Doctor (PW-8) has supported the theory that this was a case of homicidal death

caused by the accused persons. On their re-examination, the PW-10 and PW-11 had

deposed differently laying emphasis on the fact that it was the accused persons who had

killed the deceased and therefore, it was not a case of suicide. However, the evidence

adduced by these two witnesses, i.e. PW-10 and PW-11 are not based on their statement

recorded by the Police under Section 161 Cr.P.C. Rather, we find that there is a significant

variance in their version.

38. From the LCR, it appears that PW-10 and PW-11 were recalled as witnesses on the

basis of an application filed by the prosecution under Section 311 Cr.P.C. Although Mr.

Chamuah has practically assailed the decision of the trial court to recall these witnesses

by invoking jurisdiction under Section 311 Cr.P.C., yet, the said aspect of the matter, in our

considered opinion, cannot be gone into at this point of time, since the appellants did not

challenge the order, by means of which, the learned trial court had recalled these Page No.# 20/26

witnesses at the relevant point of time. Be that as it may, notwithstanding the above, it

would still be open for the court to examine the probative value of the testimony of PW-

10 and PW-11 in the light of the materials available on record.

39. On a careful examination of the testimonies of PW-10 and PW-11, we find that

these witnesses did not say before the Police that they had information or knowledge that

the victim had been murdered by the accused persons and it was not a case of suicide.

PW-7 did not say that she had seen the victim hanging on a branch of "Jamu" (berry) tree

with her legs touching the floor but she said so while deposing as PW-10. PW-6 had

earlier said that she fainted after getting information that her daughter had hanged

herself but the same witness, when examined as PW-11, has deposed that she had

fainted after seeing the dead body of her daughter. In other words, the subsequent

testimonies of PW-10 and PW-11 are not only in marked departure from their original

deposition recorded as PW-6 and PW-7 respectively but their statements are also full of

contradictions.

40. In the case of Sunil Kr. Sambhudayal Gupta (Dr.) & Ors. Vs. State of

Maharastra, reported in (2010) 13 SCC 657, the Supreme Court has held that the

witnesses who did not disclose certain facts in their statement under Section 161 Cr.P.C.

but meets the prosecution case for the first time before the Court, their version lacked

credence and was liable to be discarded. Moreover, the evidence adduced by the PWs 10

and 11 appears to be more of an opinion rather than testimony on facts. This court

cannot be oblivious of the fact that the relationship between the family of the deceased

and her husband's family had turned sour after she had eloped with accused Jayanta Page No.# 21/26

Saikia and therefore, the PWs-10 and 11 taking a motivated stand in the matter cannot

be ruled out. In view of the above, we are of the opinion that the evidence adduced by

PW-10 and PW-11 would not be of any probative value in establishing the charge brought

against the accused persons.

41. Coming to the next argument of Mr. Chamuah that there is no basis for the learned

trial court to convict the accused persons with the aid of Section 34 IPC, we deem it

appropriate to reproduce the findings of the learned Sessions Judge on the above issues,

which is evident in paragraph 11 of the impugned judgment. The relevant part of the

conclusion recorded by the learned court below is quoted here-in-below for ready

reference:

"11. Thus, the only question remains before me as to whether in view of the evidence tendered by the prosecution witnesses, the present accused persons can be attributed with any common intention to cause the death of Tuni Saikia as a result of the strangulation by any one among the accused themselves, there being no such evidence to see whom of the accused persons subjected her to strangulation resulting her death. The evidence reveals that the deceased women was staying in her husband's house on the fateful night of occurrence and the accused persons also admitted in their statement U/S 313 Cr.P.C. that all of them were present with the deceased women in the same house on that night. Hence, an inference can be drawn from the facts and circumstances of the case as discussed above that the all accused persons shared with common intention while dealing with the deceased Tuni Saikia whom they killed by strangulation on the very night of occurrence."

42. The question is, merely because the accused persons were staying in the same

house as the deceased on the night of the incident, could they have been convicted on

the basis of their statement recorded under section 313 Cr.P.C by drawing an inference on

their involvement. The law on the above issue has been summarized by the Supreme Page No.# 22/26

Court in the case of Raj Kr. Singh @ Raju @ Batya Vs. State of Rajasthan reported

in (2013) 5 SCC 722, wherein the Apex Court has made the following observations in

paragraph 36 which is quoted here-in-below:-

"36. In view of the above, the law on the issue can be summarised to the effect that statement under Section 313 Cr.P.C. is recorded to meet the requirement of the principles of natural justice as it requires that an accused may be given an opportunity to furnish explanation of the incriminating material which had come against him in the trial. However, his statement cannot be made a basis for his conviction. His answers to the questions put to him under Section 313 Cr.P.C. cannot be used to fill up the gaps left by the prosecution witnesses in their depositions. Thus, the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution. In case the prosecution's evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under Section 313 Cr.P.C. is not recorded after administering oath to the accused. Therefore, it cannot be treated as an evidence within the meaning of Section 3 of the Evidence Act, though the accused has a right if he chooses to be a witness, and once he makes that option, he can be administered oath and examined as a witness in defence as required under Section 315 Cr.P.C. An adverse inference can be taken against the accused only and only if the incriminating material stood fully established and the accused is not able to furnish any explanation for the same. However, the accused has a right to remain silent as he cannot be forced to become witness against himself."

43. In the present case, we find that there is no admission of guilt by the accused

persons. However, from the statement of the accused persons recorded under Section

313 Cr.P.C it is evident that they were staying with the accused in the same house on the

night of the incident. As has been noted here-in before, the accused persons have also

stated that while they were sleeping at night the deceased could not be found and later

she was found hanging from the tree. As such, it would not be correct to hold that there

was no plausible explanation from the accused persons as to the circumstances under the

incident had occurred. What is, however, significant to note here-in is that the learned Page No.# 23/26

trial court has not at all dealt with such explanation of the accused persons while deciding

the question of culpability of the accused persons.

44. In the case of Reena Hazarika (Supra) the Supreme Court has held that

whether the defense taken under section 313 Cr.P.C. is acceptable or not is a entirely

different matter but if there has been no consideration at all of the statement of the

accused recorded under section 313 Cr.P.C., then in the given facts of the case, the

conviction may well stand vitiated.

45. Coming to the issue of failure of the accused persons to offer reasonable

explanation as to the circumstances under which the incident had occurred law is well

settled that burden under Section 106 of the Evidence Act does not completely relieve the

prosecution to prove the charge by leading evidence but in such cases, the burden will be

comparatively lighter. In the case of Trimukh Maroti Kirkan Vs. State of

Maharashtra, reported in (2006) 10 SCC 681 it has been held that in view of Section

106 of the Evidence Act, where an offence is committed in the secrecy inside the house,

there would be a corresponding burden upon the inmates of the house to give cogent

explanation as to how the crime was committed. However, the initial burden to establish

the case would be upon the prosecution.

46. Law relating to scope and ambit of Section 34 IPC for fixing joint liability on the

accused for criminal act based on common intention has been settled by a long line of

judicial precedents and we do not consider it necessary to refer to all those decisions in

our judgment. The law can, however, be summarized by stating that in cases where

Section 34 IPC is applied, the burden to prove that the accused persons had committed Page No.# 24/26

the criminal act in furtherance of their common intention and that there was meeting of

mind on the part of the accused persons to commit the crime would lie entirely upon the

prosecution. In this case, there is neither any evidence available on record to draw such

an inference so as to implicate the accused persons with the aid of Section 34 IPC nor has

the learned trial court recorded any finding on that behalf. There is also no finding

recorded by the learned court below as regards individual culpability of the accused

persons under Section 302 IPC. In such view of the matter, we are of the opinion that

conviction of the accused persons with the assistance of Section 34 IPC, was also not

justified in the facts and circumstances of the case.

47. Section 8 of the Evidence Act provides that subsequent conduct of a party to a

proceeding would be relevant. From the evidence available on record, we find that

immediately after discovering that the deceased was hanging from a tree, the accused

persons had informed their neighbours about the incident including the Village Head; the

family members of the accused persons were found crying; none of them had left the

house. The above conduct of the accused persons would also go to show that there was

neither any attempt to suppress the incident nor was there any attempt to flee the law.

The above conduct of the accused persons do not give rise to any suspicion that they

might have been involved in the commission of a crime.

48. In the instant case, we have already noticed that the deceased was found hanging

from a tree outside the house but inside the premises of the accused persons. It has

come out from the sketch map (Exhibit-3) that the "kutcha latrine" was situated away

from the rooms where the accused persons and the deceased were residing. The incident Page No.# 25/26

took place around mid-night and the accused persons have stated that when they woke

up they did not find the deceased inside the house and after looking for her, found the

deceased hanging from a tree. None of the neighbours had heard any commotion before

the incident. There is also no evidence to acrimonious relationship between the deceased

and her husband of the other family members. The motive behind committing the murder

of the deceased could not be established by the prosecution. The accused persons have

offered some explanation as to the circumstances under which the incident might have

occurred and the same cannot be readily held to be totally improbable. The prosecution

has failed to conclusively establish the homicidal death of the deceased and have also

failed to prove common intention on the part of the accused persons to commit any

crime. Therefore, on a cumulative assessment of the fact and circumstances of the case

as well as the evidence adduced on record, we find sufficient force in the submission of

Mr. Chamuah that the prosecution has failed to prove the charge brought against the

accused persons under Section 302/ 34 IPC beyond reasonable doubt. On the contrary,

from the material available on record, we are of the view that the deceased committing

suicide by hanging herself by going out of the house in the mid night, on the pretext of

answering natures call, cannot be ruled out in this case.

49. There can be no doubt about the fact that the incident took place under mysterious

circumstances giving rise to a suspicion as regards the involvement of the accused

persons or at least the husband of the deceased Jayanta Saikia in committing the murder

of his wife. However, it is settled law that suspicion, howsoever strong, cannot take the

place of proof. The sole basis of suspicion in this case is the opinion of the doctor PW-8.

Page No.# 26/26

However, it is to be borne on mind that the opinions expressed by the medical and

forensic experts in such matters is usually based on a number of factors including the

condition of the specimen, data obtained from previous case studies and past experience

of the author. Therefore, possibility of slight variations and/or moderations of such opinion

from case to case is natural. In such view of the matter, we are of the opinion that, in the

absence of any corroborating evidence, it would be highly unsafe to the award conviction

for committing murder solely on the basis of medical evidence.

For the reasons stated hereinabove, we are of the opinion that the conviction of

the appellants under Section 302/34 IPC is unsustainable in the eye of law. The impugned

judgment and order dated 13-07-2015 is therefore, set aside. The appellants are hereby

acquitted by giving them the benefit of doubt.

We are informed that the appellant Jayanta Saikia is in jail while the other

appellants are out on bail. As such, we direct that the appellant Jayanta Saikia be

forthwith released from jail.

The appeal stands allowed.

Registry to send back the LCR.

                                  JUDGE                      JUDGE

GS




Comparing Assistant