Gauhati High Court
CRL.A(J)/20/2021 on 1 August, 2024
Author: Manish Choudhury
Bench: Manish Choudhury
GAHC010104702021
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
Criminal Appeal (J) No. 20/2021
Arun Tanti,
S/O Late Bidya Tanti,
R/O No.2 Balijan Village,
North Lakhimpur, Assam.
......Appellant
-Versus-
The State of Assam,
Represented by P.P., Assam.
......Respondent
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
HON'BLE MR. JUSTICE ROBIN PHUKAN
APPEARANCE:-
For the Appellant : Mr. B. Prasad, Amicus Curiae.
For the Respondent : Ms. B. Bhuyan, Sr. Counsel and
Addl. Public Prosecutor, Assam,
Ms. R. Das
Date of Hearing : 19.07.2024
Date of Judgment : 01.08.2024
JUDGMENT AND ORDER (CAV)
(R. Phukan, J)
Heard Mr. B. Prasad, learned Amicus Curiae for the
accused/appellant and Ms. B. Bhuyan, learned Senior Counsel &
Additional Public Prosecutor, assisted by Ms. R. Das, learned Counsel
for the respondent, State of Assam.
2. This appeal is preferred by the accused/appellant, namely, Shri
Arun Tanti, from the District Jail, North Lakhimpur, challenging the
correctness or otherwise of the judgment, dated 12.03.2020, and
order of sentence, dated 16.03.2020, passed by the learned Sessions
Judge, Lakhimpur, North Lakhimpur in Sessions Case No. 62(NL)/
2017.
3. It is to be noted here that vide impugned judgment dated
12.03.2020, the learned Sessions Judge, Lakhimpur, North Lakhimpur
had convicted the appellant under Section 302 IPC and vide
impugned order dated 16.03.2020, sentenced him to suffer
imprisonment for life and to pay a fine of Rs. 1,000/-, and in default
of payment of fine, to suffer rigorous imprisonment for another two
months.
4. The background facts, leading to filing of the present appeal,
are briefly stated as under:-
"The accused/appellant, namely, Shri Arun Tanti is an
inhabitant of No. 2 Balijan Gaon, under North Lakhimpur P.S. in
the district of Lakhimpur. He had a wife and two daughters and
one son and his elder daughter was already married off and she
lived with her husband in his house and his younger daughter
lived with him and his son resides in the house of his father-in-
law as „Gharjamai‟. In the last Magh Bihu, the accused/
appellant came to the house of his younger brother, namely,
Shri Monohar Tanti, who is the informant of this case and was
examined by the prosecution as P.W.1, and reported that his
wife Sumoti Tanti had passed away. Thereafter, the informant
(P.W.1), along with other villagers, rushed to the house of the
accused Shri Arun Tanti and found the dead body of his wife
Sumoti Tanti, lying on the ground and blood was oozing out
from the body and also found one wooden lathi lying behind
the dead body. He also found the accused/appellant in a
drunken condition and he could not speak. On earlier occasion
also the accused/appellant frequently had picked up quarrel
with his deceased wife, and six months back, he had also set
fire on her hand and the local people are also aware of the
same, and therefore, he suspected that last night the accused/
appellant had assaulted his wife to death with a stick. Then the
informant had lodged one FIR (Ext.1) with the In-Charge,
Lilabari Police Out Post.
On receipt of the FIR, (Ext.1), to this effect, from the
informant Monohar Tanti (P.W.1), on 14.01.2017, the In-
Charge, Lilabari Police Out Post recorded a G.D. Entry, being
Lilabari O.P. G.D. Entry No. 204, dated 14.01.2017, and
forwarded the same to the Officer In-Charge, North Lakhimpur
P.S. for registering a case, and he had taken up investigation of
the case. Upon the said FIR, the Officer In-Charge, North
Lakhimpur P.S. registered a case being North Lakhimpur P.S.
Case No. 56/2017, under Section 302 IPC and endorsed S.I.
Lintu Borah, I/C, Lilabari Police Out Post to investigate the
case.
Accordingly, the Investigating Officer (P.W.6) had visited
the place of occurrence, examined the witnesses, drew a sketch
map, (Ext.6), of the place of occurrence and held inquest on
the dead body of the deceased and prepared the inquest
report, (Ext.4), and arrested the accused, Shri Arun Tanti and
forwarded him to the Court and sent the dead body for post-
mortem examination at North Lakhimpur Civil Hospital and
thereafter, collected the report, (Ext.2), and on completion of
investigation, and having found a prima facie case well
established against the accused/appellant, the I.O. (P.W.6) laid
charge-sheet, being charge-sheet No. 115/2017, dated
31.03.2017, against the accused/appellant, before the learned
Chief Judicial Magistrate, Lakhimpur, North Lakhimpur, to stand
trial under Section 302 IPC. Thereafter, the learned Chief
Judicial Magistrate, Lakhimpur, North Lakhimpur, complied with
the provision of Section 207 IPC and thereafter, vide order
dated 23.05.2017, committed the case to the Court of learned
Sessions Judge, Lakhimpur, North Lakhimpur, being the offence
under Section 302 IPC is exclusively triable by the Court of
Sessions.
On production of the accused/appellant before the
learned Sessions Judge, Lakhimpur, North Lakhimpur, the
learned Sessions Judge, vide order dated 10.07.2017, after
hearing learned Advocates of both sides and also considering
the materials on record, had framed charge against the
accused/appellant, Shri Arun Tanti, under Section 302 IPC and
on being read and explained over the charge to the
accused/appellant, he pleaded not guilty and claimed to be
tried.
The prosecution side had examined as many as six
witnesses including the Doctor, who had conducted post-
mortem examination and also the I.O. who had carried out the
investigation of the case. The learned trial court had also
examined the younger daughter of the deceased as well as of
the accused/appellant, as court witness. After closing the
prosecution evidence, the learned trial Court had examined the
accused/appellant, under Section 313 Cr.P.C. Thereafter,
hearing arguments of learned Advocates of both the parties,
the learned trial Court found the charge under Section 302 IPC
established against the accused and accordingly, convicted him
under Section 302 IPC and sentenced him to suffer
imprisonment for life and also to pay a fine of Rs. 1,000/-, with
default stipulation."
5. Being highly aggrieved, the accused/appellant has approached
this Court from District Jail, North Lakhimpur by filing an application
stating that he is not satisfied with the judgment and order of
sentence, so handed down by the learned trial Court. Then, admitting
the appeal, this Court was pleased to appoint Mr. B. Prasad, learned
counsel as Amicus Curiae to assist this Court in disposing of this
appeal.
6. Mr. Prasad, learned Amicus Curiae for the accused/appellant
submits that there is no direct evidence against the
accused/appellant and that the entire prosecution case rests upon
the circumstantial evidence. Referring to a decision of Hon‟ble
Supreme Court in Sharad Birdhichand Sarda Vs. State of
Maharashtra, reported in (1984) 4 SCC 116, and also to another
decision of Hon‟ble Supreme Court in Shivaji Sahabrao Bobade
and Another Vs. State of Maharashtra, reported in (1973) 2
SCC 793, Mr. Prasad submits that the prosecution had failed to
prove all the circumstances conclusively to establish the guilt of the
accused, which the prosecution side had failed to establish. Further,
Mr. Prasad, referring to the impugned judgment and order of
sentence submits that the learned trial Court had mainly relied upon
following circumstances to record conviction of the
accused/appellant:-
(i) that, the deceased and the accused/appellant were last
seen together in his house, and
(ii) that, the accused/appellant had failed to offer any
explanation under Section 106, Indian Evidence Act,
1872;
(iii) that, he had given evasive reply in his examination under
Section 313(1)(b) Cr.P.C.,
6.1. But, the aforesaid circumstances, according to Mr. Prasad, had
failed to complete the chain of circumstances, which are required to
be established beyond all reasonable doubt, by the prosecution side
to base a conviction. Mr. Prasad also submits that there is no direct
evidence to show that the deceased and the accused/appellant were
living in his house on the fateful night of occurrence, and that though
one stick was recovered and seized by the I.O., yet the same was not
sent for forensic examination at the Forensic Science laboratory
(FSL), so as to establish usage of the same in committing the crime.
Mr. Prasad further submits that the Doctor, who had conducted
autopsy on the dead body of the deceased, had found no mark of
burn injury on her person as alleged in the FIR (Ext.1) by the
informant and on such count the same cannot be relied upon, and
as the prosecution side had failed to establish the circumstances so
relied upon by the learned trial court beyond reasonable doubt, the
accused/appellant, according to Mr. Prasad, is entitled to the benefit
of the same and therefore, Mr. Prasad has contended to extend the
benefit of doubt to the accused/appellant.
7. Per contra, Ms. B. Bhuyan, learned Senior Counsel & Additional
Public Prosecutor for the state respondent, has supported the
impugned judgment and order of sentence, so passed by the learned
trial Court. According to Ms. Bhuyan, the occurrence took place
within the four corners of the house, where the accused/appellant
and the deceased were living, and since the occurrence took place
within the four corners of the house, the prosecution is to establish
only those circumstances which it can. And as in the instant case,
living in the four corners of the house by the accused/appellant and
his deceased wife, at the time of occurrence has been established by
the prosecution side by adducing cogent evidence, the
accused/appellant had owed an explanation in view of Section 106 of
the Evidence Act. In support of her contention Ms. Bhuyan has
referred two decision of Hon‟ble Supreme Court in Trimukh Maroti
Kirkan Vs. State of Maharashtra, reported in 2007 Criminal
Law Journal, page 20, and also in Wazir Khan Vs. State of
Uttarakhand, reported in (2023) 8 SCC 597. Taking this Court
through the examination of the accused/appellant under Section 313,
Cr.P.C., Ms. Bhuyan submits that the accused/appellant had given an
evasive reply and failed to explain under what circumstances his wife
suffered the injuries, which were homicidal in nature, in view of the
medical evidence. Ms. Bhuyan further submits that the
accused/appellant had also taken the plea of alibi but he had failed to
establish the same by adducing any evidence. Under such
circumstances, Ms. Bhuyan submits that the learned trial Court had
rightly arrived at the finding of guilt of the accused/appellant and
that he is responsible for the death of his wife and as such the
impugned judgment and order warrants no interference of this court
and therefore, it is contended to dismiss the appeal.
8. We have given a thoughtful consideration to the submissions of
learned Advocates of both the parties and also gone through the
impugned judgment and order of conviction and sentence and also
gone through the record of the learned trial Court and also gone
through the decisions referred by learned Advocates of both the
parties.
9. It appears from the record of the learned trial court that the
prosecution side had examined as many as six witnesses and also
exhibited as many as six documents, the FIR as Ext.1, the post-
mortem examination report as Ext.2, the seizure list as Ext.3, the
inquest report as Ext.4, the charge-sheet as Ext.5 and the sketch
map of the place of occurrence as Ext.6. The prosecution side had
also examined the informant, Shri Monohar Tanti as P.W.1, Shri
Jadav Tanti as P.W.2, Shri Rajesh Telenga as P.W.3, Shri Nabin Horo
as P.W.4, Dr. Ram Prasad Pawe, Medical Officer of North Lakhimpur
Civil Hospital as P.W. 5 and the I.O. Inspector Lintu Borah as P.W.6.
It also appears that the learned trial Court had examined one Smt.
Roma Tanti, daughter of the deceased as well as of the
accused/appellant, as C.W.1.
10. The evidence of P.W.1 (the informant) reveals that the
occurrence took place on the last Magh Bihu. Though, he had not
stated about the date and time of occurrence, yet the FIR (Ext.1),
lodged by him reveals that it took place on 13.01.2017, the day
before lodging of the FIR on 14.01.2017, and it also appears that it
took place during night hours. The evidence of P.W.3, Shri Rajesh
Telenga reveals that the occurrence took place on the night of Magh
Bihu and that he heard hue and cry towards the house of the
accused/appellant, at about 10/11 p.m. It is to be noted here that
P.W.3 is the neighbor of the deceased as well as of the
accused/appellant. The evidence of P.W.4 Shri Nabin Horo also
indicates that the occurrence took place about a year back, on one
night, in the house of the accused/appellant, Shri Arun Tanti. The
evidence of P.W.5, the Medical Officer, who had conducted autopsy
on the dead body of the deceased, also reveals that he had
conducted the autopsy on 14.01.2017, at about 10 a.m. However, he
had not indicated in his report (Ext.2) the time since death of the
deceased till the time of conducting the autopsy on the dead body.
But, on examination of the abdomen, he found undigested food
materials in the stomach and semi-digested food materials in the
small intestine and digested food materials in the large intestine. So,
what can be derived from the above mentioned piece of evidence is
that the deceased suffered demise after sometime of taking dinner as
un-digested food particles were found in the intestine. The evidence
of C.W.1, the daughter of the deceased also indicates that the
occurrence took place at night in her house. However, she was not
present in her house on that night. Thus, it appears from the
evidence of the prosecution witnesses, especially from the FIR (Ext.1)
that the occurrence took place on the night of 13.01.2017, in the
house of the accused/appellant. It is to be noted here that the
accused/appellant had not disputed the date, time and place of
occurrence.
11. Further, it appears from the evidence on record that in the
occurrence, that took place on 13.01.2017, at night, Sumoti Tanti
suffered demise. Now, let it be seen, how Sumoti Tanti, the wife of
the accused/appellant suffered demise and whether it was accidental,
or suicidal or homicidal in nature. In this regard, evidence of the
P.W.5, the Medical Officer, who had conducted autopsy on the dead
body of the deceased, is material and relevant.
12. The prosecution side had examined Dr. Ram Prasad Pawe,
Medical and Health Officer-1, North Lakhimpur Civil Hospital, who
had conducted autopsy on the dead body of the deceased, as P.W.5.
His evidence reveals that on 14.01.2017, at about 10 a.m., he
conducted autopsy on the dead body of Sumoti Tanti, aged about 40
years, wife of Shri Arun Tanti of No. 2 Balijan village, under North
Lakhimpur P.S., on being produced and identified by UBC 603, Shri
Ashok Kumar Shah, and in presence of Shri Nobin Horo, Shri
Monohar Tanti, relatives of the deceased, and he found as under:
I. EXTERNAL APPEARANCE:
1. Condition of subject stout emaciated, decomposed etc. An average
built female non decomposed dead body with rigor mortise present in
limbs.
2. Wounds-position and character: Lacerated wound in right molar
region 5 x 4 x 3 cm². Lacerated wound in forehead left side 8 x 5 x 4
cm².
3. Bruise-position, size and nature: Nil.
4. Mark of ligature on neck dissection etc.: Nil.
II. CRANIUM AND SPINAL CANAL:
1. Scalp, skull and vertebrae: Fractured skull left forehead.
2. Membrane: Ruptured.
3. Brain and spinal cord: Brain ruptured.
III. THORAX:
1. Wallis ribs and cartilages: Present interior wall of thorax at mid
portion.
2. Pleurae: Ruptured.
3. Larynx and tracheae: Healthy.
4. Right and Left Lung: Ruptured.
5. Pericardium: Healthy.
6. Heart: Healthy.
7. Vessels: Healthy.
IV. ABDOMEN:
1. Walls: Healthy.
2. Peritoneum: Healthy.
3. Mouth, pharynx and oesophagus: Healthy.
4. Stomach and its contents: Healthy with undigested food materials.
5. Small intestine and its contents: Healthy with semi-digested food
materials.
6. Large intestine and its contents: Healthy with digested food
materials.
7. Liver: Healthy.
8. Spleen: Healthy.
9. Kidneys: Healthy.
10. Bladder: Healthy.
11. Organs of generation, external and internal: Healthy.
V. MUSCLES, BONES AND JOINTS:
1. Injury: Nil.
2. Disease or deformity: Nil.
3. Fracture: Fractured left wrist joint, fractured right tibia and fibula
mid 3rd and fractured femur left side upper 3rd.
4. Dislocation: Fractured sternum upper 3rd, Fractured right side rib
3rd, 4th, 5th, 6th and 7th rib and fractured left side rib 3rd, 4 ^ (n) and
5th.
MORE DETAILED DESCRIPTION OF INJURY OR DISEASE:
An average built female non decomposed dead body with rigor
mortise present in limbs. Lacerated wound in right molar region and
forehead as described. Fractured left wrist joint, fractured right tibia
and fibula mid 3rd, fractured left femur upper 3rd, fractured sternum
upper 3rd, fractured right side rib 3rd, 4th, 5th, 6th and 7th rib and
fractured left side rib 3rd, 4th and 5th rib. Fractured skull at forehead
left side with ruptured meninges and brain.
OPINION:
Upon the aforementioned finding, P.W.5 had opined that the
cause of death was due to cardio respiratory failure, due to head and
chest injury, due to trauma which was homicidal in nature.
13. Ext.2 is the post mortem examination report; Ext.2 (1) is also
consistent with his evidence. It is elicited in his cross-examination
that in his report he did not mention about the nature of weapon
used in committing the assault. Except this nothing tangible could be
elicited in his cross-examination. Thus, we find that the cause of
death of the deceased Sumoti Tanti was due to cardio respiratory
failure, due to head and chest injury, due to trauma, which was
homicidal in nature. Notably, the factum of homicidal death of the
deceased was not disputed by the accused/appellant.
14. It also appears that the I.O., before sending the dead body of
the deceased for autopsy, had conducted inquest on the dead body
of the deceased and prepared a report, which the prosecution side
had exhibited as Ext.4. A perusal of the Ext.4 indicates that the I.O.
had found injury mark over her mouth, neck, hand, chest and to
some extent, this inquest report also lent credence to the evidence of
the P.W.5. It is to be noted here that the cause of death of the
deceased had not been disputed by the accused/appellant and Ext.2
and the evidence of the doctor (P.W.5) clearly indicate that the death
of the deceased Sumoti Tanti was homicidal in nature. Now, what is
left to be seen is who caused the aforesaid injuries.
15. It is to be noted here that there is no direct evidence to show
as to who had caused the injuries sustained by the deceased on her
person. But, it appears from the evidence of the prosecution
witnesses and also from the evidence of the court witness, (C.W.1),
that the deceased and the accused/appellant were husband and wife
and at the relevant point of time, they were living in the house of the
accused/appellant, where the occurrence took place.
16. The evidence of P.W.1 reveals that the accused appellant is his
elder brother and he lived separately at a distance of one km from
his house and that the family of the accused/appellant, Shri Arun
Tanti, comprises of his wife Sumoti Tanti and he has two daughters,
the elder one is already married off and living in the house of her
husband and the younger one was with him and he had a son who
used to live as „Gharjamai‟ in the house of his father-in-law. His
evidence also reveals that he lived separately, at a distance of about
one km from that of the house of the accused. And in the morning of
last Magh Bihu, Arun Tanti, who happened to be his elder brother,
came to his house and informed him that his wife Sumoti Tanti had
died. Thereafter, he (P.W.1), along with neighbours rushed to the
house of the accused/appellant and found the deceased lying on the
ground and blood was oozing out of her body and he noticed injuries
over the whole body of the deceased and he also found one „lathi‟,
being stained with blood, lying nearby and he also found the
accused/appellant in drunken condition and was not in a position to
speak and thereafter, he had lodged the FIR, (Ext.1), with the police
station and according to him, as there was no other person in the
house, so the accused/appellant, might have committed the offence.
Admittedly, this witness had not seen the actual occurrence. And
nothing tangible could also be elicited in his cross-examination to
discredit his evidence.
17. P.W.2, Shri Jadav Tanti is the son of P.W.1. Close on the heels
with P.W.1, this witness also testified that on the previous day of
Magh Bihu, Arun Tanti came to his house and stated that his wife
Sumoti Tanti passed away, and then he, along with his father, and
some other persons, rushed to the house of Arun Tanti, and saw the
dead body of the deceased lying in the room and he came to know
that on the previous night, the occurrence took place. This witness
was not cross-examined by the accused/appellant. And it appears
that he also lent corroboration to the version of the P.W.1. In re-
examination by the prosecution side, he stated that the
accused/appellant Arun Tanti and his wife Sumoti Tanti were living in
the house alone and except him; no other person was there in his
house.
18. P.W.3 is Shri Rajesh Telenga, is a neighbor of the accused
/appellant. His evidence reveals that the accused/appellant is a
habitual drunkard. His evidence also reveals that wife of the
accused/appellant, Sumoti Tanti, had passed away and that the
occurrence took place one year back, on the night of Magh Bihu. His
evidence also reveals that on the night of occurrence, at about 10/11
p.m., he heard hue and cry in the house of the accused/appellant,
and on the following morning, one Nabin Horo, whose house is
situated near the house of the accused/appellant, informed him over
phone that some untoward incident had happened in the house of
Arun Tanti and called him to his house. Then with some other
persons, he went to the house of the accused/appellant and found
the dead body of the deceased Sumoti Tanti lying in the house and
then the incident was reported at Lilabari Police Out Post. In re-
examination, he stated that he had not gone to see the injuries on
the person of the deceased Sumoti Tanti as he becomes nervous
seeing injuries. The accused/appellant had cross-examined this
witness, but, probative value of his evidence could not be
demolished.
19. P.W.4 is Shri Nabin Horo and he also dittoed the same fact like
P.W.3. However, P.W.4 had noticed some injuries over the neck and
legs of the deceased. It is elicited in his cross-examination that he
had not stated before police about the injuries he had seen on the
person of the deceased. However, in re-examination, he stated that
on the night of the occurrence, the accused/appellant and his wife
Sumoti Tanti were the only persons in their house. It is also elicited
that he had noticed bleeding injuries over the legs and stomach of
the deceased and also had seen one lathi, lying by the side of the
dead body, being smeared with blood.
20. C.W.1, Smt. Roma Tanti, is the younger daughter of the
deceased and of the accused/appellant. Her evidence reveals that on
the night of the occurrence, her father Arun Tanti and her mother
Sumoti Tanti were the only persons living in the house of her father
Arunt Tanti. Her evidence also reveals that on that night, she was
living in the house of her grandfather, Shri Ramesh Tanti, whose
house is situated about one kilometer away from the house of her
father Arun Tanti. On the following morning of the night of
occurrence, she and her grandfather came to know that her mother
had passed away. Then, she proceeded to the house of her father
and found the dead body of her mother Sumoti Tanti, lying on the
ground and also found bleeding injuries over the head, face and left
hand of her deceased mother. She had also noticed one stick lying
near the fencing of the house with blood stain over the same. It is
elicited in her cross-examination that Sumoti Tanti used to take
alcohol often and under the influence of alcohol, her father Arun
Tanti and mother Sumoti Tanti used to pick up quarrel and due to
drunkenness of her father, the occurrence might have taken place on
the fateful night.
21. Thus, from the evidence of P.W.1, P.W.2, and P.W.4 and also
from the evidence of C.W.1, it becomes apparent that on the night of
the occurrence, the accused/appellant Arun Tanti and the deceased
Sumoti Tanti were in the house and no other family members were
present, as they were living in different places. The factum of death
of the deceased was first reported by the accused/appellant himself
to the informant (P.W.1) and also to P.W.4, who, thereafter, went to
the house of the accused/appellant Arun Tanti and found his wife
lying dead on the ground with injuries on her person and also found
one stick, being smeared with blood, lying nearby the dead body of
the deceased.
22. Another circumstance, which also stands established from the
evidence of P.W.3, is that on the night of Magh Bihu, at about 10/11
p.m., he heard hue and cry towards the house of the
accused/appellant and in the following morning, he came to know
about the death of the deceased. It also becomes apparent that the
accused/appellant is a habitual drunkard and P.W.1 had found him in
drunken condition and he was not in a position to speak, while the
accused/appellant had reported to him about the death of his wife.
The evidence of C.W.1 also indicates that her mother Sumoti Tanti
and her father Arun Tanti used to pick up quarrel under the influence
of liquor and due to drunkenness of her father Arun Tanti, the
occurrence might have taken place.
23. Thus, from the evidence discussed herein above, it becomes
apparent that there is no direct evidence against the
accused/appellant. But, the prosecution side had succeeded in
establishing by leading clear and cogent evidence that on the fateful
night, deceased Sumoti Tanti and accused/appellant Arun Tanti were
in their house where the dead body of the deceased found lying with
injuries on her persons and the same were homicidal in nature. Also
we find that one lathi, being smeared with blood, was found lying
near the dead body. The I.O. had seized the same preparing seizure
list, Ext. 3. But, the I.O. had not sent the said lathi to the Forensic
Science Laboratory (FSL) for examination. Mr. Prasad, the learned
Amicus Curiae has rightly pointed this out. But, this omission on the
part of the I.O. to send the lathi for examination in FSL, would not
render the prosecution case untrustworthy and on that consideration
otherwise trustworthy and reliable evidence ought not to be cast
aside. In holding so, we are supported by a decision of Hon‟ble
Supreme Court in State of Punjab vs. Gurmit Singh & Others,
reported in AIR 1996 SC 1393.
24. Thus, we find that though there is no direct evidence as to who
caused the injuries to the deceased that lead to her death, yet, in
view of the facts and circumstances discussed in the foregoing para,
and also in view of principle laid down by Hon‟ble Supreme Court in
the case of State of W.B. v. Mir Mohammad Omar, reported in
(2000) 8 SCC 382, Trimukh Maroti Kirkon (supra) and in the case of
Wazir Khan (supra), the accused/appellant owes an explanation in
view of Section 106 of the Evidence Act.
25. It is to be noted here that Section 106 of the Evidence read as
under:-
"106. Burden of proving fact especially within
knowledge.--
When any fact is especially within the knowledge of
any person, the burden of proving that fact is upon him.
Illustration:-
(a) When a person does an act with some intention
other than that which the character and
circumstances of the act suggest, the burden of
proving that intention is upon him.
(b) A is charged with travelling on a railway without
a ticket. The burden of proving that he had a
ticket is on him.
26. While dealing with Section 106 of the Evidence Act, Hon‟ble
Supreme Court in the case of Mir Mohammad Omar (supra), has
held as under:-
"31. The pristine rule that the burden of proof is on the
prosecution to prove the guilt of the accused should not be taken
as a fossilised doctrine as though it admits no process of
intelligent reasoning. The doctrine of presumption is not alien to
the above rule, nor would it impair the temper of the rule. On
the other hand, if the traditional rule relating to burden of proof
of the prosecution is allowed to be wrapped in pedantic
coverage, the offenders in serious offences would be the major
beneficiaries and the society would be the casualty."
XXXXXX
"37. The section is not intended to relieve the prosecution of its
burden to prove the guilt of the accused beyond reasonable
doubt. But the section would apply to cases where the
prosecution has succeeded in proving facts from which a
reasonable inference can be drawn regarding the existence of
certain other facts, unless the accused by virtue of his special
knowledge regarding such facts, failed to offer any explanation
which might drive the court to draw a different inference."
27. In Trimukh Maroti Kirkan (supra), Hon‟ble Supreme Court
had occasion to consider a similar case of homicidal death in the
confines of the house and observed as under:-
"14. If an offence takes place inside the privacy of a house
and in such circumstances where the assailants have all the
opportunity to plan and commit the offence at the time
and in circumstances of their choice, it will be extremely
difficult for the prosecution to lead evidence to establish
the guilt of the accused if the strict principle of
circumstantial evidence, as noticed above, is insisted upon
by the courts. A Judge does not preside over a criminal trial
merely to see that no innocent man is punished. A judge
also presides to see that a guilty man does not escape. Both
are public duties. (See Stirland v. Director of Public
Prosecutions [1944 AC 315 : (1944) 2 All ER 13 (HL)]--
quoted with approval by Arijit Pasayat, J. in State of Punjab
v. Karnail Singh [(2003) 11 SCC 271 : 2004 SCC (Cri) 135].)
The law does not enjoin a duty on the prosecution to lead
evidence of such character which is almost impossible to
be led or at any rate extremely difficult to be led. The duty
on the prosecution is to lead such evidence which it is
capable of leading, having regard to the facts and
circumstances of the case. Here it is necessary to keep in
mind Section 106 of the Evidence Act which says that when
any fact is especially within the knowledge of any person,
the burden of proving that fact is upon him. Illustration (b)
appended to this section throws some light on the content
and scope of this provision and it reads: "(b) A is charged
with travelling on a railway without ticket. The burden of
proving that he had a ticket is on him."
15. Where an offence like murder is committed in secrecy
inside a house, the initial burden to establish the case
would undoubtedly be upon the prosecution, but the
nature and amount of evidence to be led by it to establish
the charge cannot be of the same degree as is required in
other cases of circumstantial evidence. The burden would
be of a comparatively lighter character. In view of Section
106 of the Evidence Act there will be a corresponding
burden on the inmates of the house to give a cogent
explanation as to how the crime was committed. The
inmates of the house cannot get away by simply keeping
quiet and offering no explanation on the supposed premise
that the burden to establish its case lies entirely upon the
prosecution and there is no duty at all on an accused to
offer any explanation.
xxx xxx xxx
22. Where an accused is alleged to have committed the
murder of his wife and the prosecution succeeds in leading
evidence to show that shortly before the commission of
crime they were seen together or the offence takes place in
the dwelling home where the husband also normally
resided, it has been consistently held that if the accused
does not offer any explanation how the wife received
injuries or offers an explanation which is found to be false,
it is a strong circumstance which indicates that he is
responsible for commission of the crime. ..."
28. In the case of Wazir Khan (supra), the Hon‟ble Supreme Court
in para No. 24, has enunciated the principle as under:
"In a case based on circumstantial evidence where no
eyewitness is available, there is another principle of law
which must be kept in mind. The principle is that when an
incriminating circumstance is put to the accused and the
said accused either offers no explanation or offers an
explanation which is found to be untrue, then the same
becomes an additional link in the chain of circumstances
to make it complete. This view has been taken in a catena
of decisions of this Court, namely, Nika Ram v. State of
Himachal Pradesh, AIR 1972 SC 2077, Ganesh Lal v. State of
Rajasthan, (2002) 1 SCC 73, and State of U.P. v. Dr.
Ravindra Prakash Mittal, AIR 1992 SC 2045."
XXXXXXXX
"Where an accused is alleged to have commit the murder
of his wife and the prosecution succeeds in leading
evidence to show, like in the present case that shortly
before commission of the crime they were seen together or
the offence took place in the dwelling home where the
husband also normally resided, it has been consistently
held that if the accused does not dispute his presence at
home at the relevant time and does not offer any
explanation how the wife received injuries or offers an
explanation which is found to be false, it is a strong
circumstance which indicates that he is responsible for
commission of that crime."
29. Here in this case, while the incriminating circumstances were
put to the accused/appellant in his examination under Section 313
Cr.P.C. and his response was sought for, the accused/appellant had
given an evasive reply that he was not present in his house and he is
not responsible for the death of his wife.
30. It appears that by virtue of his reply in to the question in
examination under Section 313 Cr.P.C., he had taken the plea of alibi.
The plea of alibi postulates the physical impossibility of the presence
of the accused at the scene of offence by reason of his presence at
another place. The plea can therefore succeed only if it is shown that
the accused was so far away at the relevant time that he could not
be present at the place where the crime was committed. (See Dudh
Nath Pandey v. State of U.P., reported in (1981) 2 SCC 166).
31. But, we find from the record that the accused/appellant had
made no effort to establish the plea of alibi by adducing any
evidence. On the other hand, the evidence of prosecution side is
clear and cogent to establish his presence at the place of occurrence,
i.e. in his house, on the relevant night. Thus, the plea of alibi failed.
32. This being the factual and legal position, we are of the
considered opinion that the proposition of law, so laid down in the
case of Mir Mohammad Omar (supra), Trimukh Maroti Kirkan
(supra) and Wazir Khan (supra) are squarely applicable to the facts
and circumstances here in this case. Ms. B. Bhuyan, learned Senior
Counsel & Additional Public Prosecution has rightly pointed this out
during argument and we record our concurrence to the same.
33. We have considered the submission of Mr. B. Prasad, learned
Amicus Curiae for the accused/appellant in the light of facts and
circumstances on the record as discussed herein above, but, for the
reason discussed in the foregoing para, we are in respectful
disagreement with the same. Also we have gone through the
decisions of Hon‟ble Supreme Court in the cases of Sharad
Birdhichand Sarda (supra) referring to its earlier decision in
Hanumant vs. State of Madhya Pradesh reported in (1952) 2 SCC 71,
has held as under:-
"153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against an
accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is
to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned "must or should" and not "may be"
established. There is not only a grammatical but a legal
distinction between "may be proved" and "must be or should
be proved" as was held by this Court in Shivaji Sahabrao
Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC
(Cri) 1033 : 1973 Crl LJ 1783] where the observations were
made: [SCC para 19, p. 807: SCC (Cri) p. 1047]
"Certainly, it is a primary principle that the
accused must be and not merely may be guilty before
a court can convict and the mental distance between
'may be' and 'must be' is long and divides vague
conjectures from sure conclusions."
(2) the facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say,
they should not be explainable on any other hypothesis
except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and
tendency,
(4) they should exclude every possible hypothesis except the
one to be proved, and
(5) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused.
34. There is no quarrel at the bar in respect of the proposition of
law laid down in the aforesaid cases. It is well settled that in a case
based on circumstantial evidence, the circumstances must be proved
beyond all reasonable doubt and the same must be complete so as to
point out unerringly the guilt of the accused.
35. In the case in hand, in view of the given facts and
circumstances, as discussed herein above, and also in view of the
principle of law, enunciated in the case of Mir Mohammad Omar
(supra), Trimukh Maroti Kirkan (supra) and Wazir Khan (supra),
and also in view of the failing to owe an explanation of the cause of
death of his wife by the accused/appellant, let alone a plausible one,
this Court is of the considered opinion that it was none other than the
accused/appellant, who was the author of the crime. And that in view
of the matter, the decisions, so referred by Mr. Prasad, would not
come into the assistance of the accused/appellant.
36. The learned trial Court also, in the impugned judgment and
order of conviction and sentence, had held that in view of Section
106 of the Evidence Act, the accused/appellant had owed an
explanation as on the night of occurrence, he was living with his wife
in his house and as he had given an evasive reply in his examination
under Section 313 Cr.P.C., the learned trial Court has held that the
accused/appellant is responsible for the crime and that there was no
possibility to any other person getting access to his house, and the
chain of circumstances led the Court to believe that he is guilty of the
offence under Section 302 IPC. The finding of guilt so recorded by
the learned trial Court appears to be based on the sound principle of
law and proper appreciation of the facts and circumstances on the
record and this Court is unable to take a view, different from that of
the learned trial Court.
37. The learned trial Court, while convicting the accused/appellant
under Section 302 IPC, sentenced him to suffer imprisonment for life
and to pay a fine of Rs. 1,000/-, and in default of payment of fine, to
suffer rigorous imprisonment for another two months. Having drawn
up a balance sheet of the incriminating as well as mitigating factors,
this Court is of the view that the learned trial Court has rightly
handed down the sentence and the same warrants no interference of
this court.
38. The learned trial Court has also recommended the District Legal
Services Authority, Lakhimpur, North Lakhimpur for assessment of
compensation which the legal heirs of the victim are entitled to as per
Assam Victim Compensation Scheme, 2012. We endorse the
recommendation so made by the learned trial Court.
39. In the result, we find no merit in this appeal and accordingly,
the same stands dismissed. Send down the learned trial Court
record with a copy of this judgment and order. The parties have to
bear their own cost.
40. Before parting with the record, we wish to place our
appreciation on record as regards the services rendered by Mr. B.
Prasad, learned Amicus Curiae appearing for the accused/appellant
and direct the Registry to make available to him just remuneration as
per the notified fee structure applicable to the Amicus Curiae.
JUDGE JUDGE
Comparing Assistant
