Gauhati High Court
Krishna Malo Das vs The State Of Assam on 25 November, 2024
Author: Sk Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/10
GAHC010093442022
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/56/2022
KRISHNA MALO DAS
BARPETA, ASSAM
VERSUS
THE STATE OF ASSAM
REP. BY PP, ASSAM.
BEFORE
HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
For the Appellant : Ms. T. Begum, Amicus Curiae.
For the Respondents : Ms. A Begum, Addl. PP, Assam.
Date of Hearing : 06.11.2024.
Date of Judgment : 25.11.2024.
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Judgment & Order
25.11.2024
(SK Medhi, J)
The present appeal has been preferred from jail against a judgment dated
25.02.2022 passed by the learned Addl. District & Sessions Judge, Barpeta in
Sessions Case No. 13/2017 arising out of GR Case No. 5169/2016. By the
aforesaid judgment dated 25.02.2022, the appellant was convicted for the
offence under Section 302 of the IPC and sentenced to undergo Rigorous
Imprisonment for life with a fine of Rs. 3000/- (Rupees three thousand), in
default to pay fine and to suffer further imprisonment for six (6) months.
2. The criminal law was set into motion by lodging of an ejahar on
08.10.2016 by the mother of the deceased who had deposed as PW7. As per
the same, her daughter was married to the appellant about 1½ years back
whereafter she was physically assaulted by the appellant under the influence of
alcohol. On 07.10.2016 at about 10 p.m., the appellant had assaulted her
daughter causing injuries on her face and killed her by pressing her neck with a
rope made of cloth and laid her on the ground. He had also tied her to a sewing
machine and did not inform anyone and remained silent. At that time, the
daughter was six months pregnant. Based on the aforesaid ejahar, a police case
was registered, being Tarabari PS Case No. 292/2016 and investigation was
done. On completion of investigation, the charge sheet was submitted. The
formal charges were framed by the learned Court and on denial thereof, the trial
had begun. In the trial, 9 nos. of PWs were examined, including the IO as PW6
and the Doctor conducting the post-mortem as PW9.
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3. PW1 is a neighbour of the appellant who, however deposed that he heard
that the deceased had committed suicide and the relationship between the
deceased and the appellant was cordial. PW2 is also a neighbour who claims to
have been called by the appellant at about 10 p.m. on the same date and on
arrival, she saw the body of the deceased lying. She has also deposed that the
appellant told her that the deceased was killed by someone. PW3 and PW5 are
neighbours whose depositions, however are of not much relevance. PW4 is the
Inquest witness whose deposition also does not play any significant role. PW6 is
the Investigating Officer who had deposed that on lodging of the ejahar, the
case was registered and he had made seizure of certain articles. PW7
(informant) is the mother of the deceased who has given a description of the
event wherein she was informed over telephone that her daughter was in a
critical condition and accordingly, she along with few other persons, including
PW8, had come to the house of the appellant which is at Tarabari. PW7 resides
at Jogighopa which is about four hours journey by road.
4. PW8 is the nephew of the informant and cousin of the deceased. Apart
from the fact that his statement was recorded under Section 164 of the Cr.PC,
the said PW8, as a witness, had deposed that the appellant had confessed
before him regarding the commission of the offence. It is seen that there is
consistency between the statement made by the said PW8 as a witness and his
statement made under Section 164 of the Cr.PC.
5. PW9 is the Doctor who has deposed that he had given a concurring report
in the postmortem done by another Doctor. As per the opinion recorded in the
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postmortem report, the death was due to asphyxia resulting from anti-mortem
manual strangulation homicidal in nature and the time since death was 12-18
hours approximately. On completion and closure of the prosecution witness, the
allegations made by the said witnesses towards proving the same against the
appellant were put to him which he had denied.
6. After such recording of the statement of the appellant under Section 313
of the Cr.PC, the materials on record along with the evidence were duly
considered which culminated in passing of the impugned judgment of conviction
and sentencing the appellant which is the subject matter of the present appeal.
7. We have heard Ms. T Begum, learned Amicus Curiae for the appellant. We
have also heard Ms. A Begum, learned Addl. PP, Assam.
8. Ms. T. Begum, the learned Amicus Curie has submitted that the present is
not a case of direct evidence but of circumstantial evidence. She reiterates that
in such cases, the chain of events should be continuous and complete and only
one conclusion has to be reached which is consistent with the guilt of the
accused and nobody else. She submits that in the instant case, the materials
against the appellant would not be sufficient to come to a conclusion of guilt
against him. She submits that the ejahar was lodged on 08.10.2016 by the
mother of the deceased who was examined as PW7 in which, the suspicion was
made against the appellant. In her deposition as PW7, she had stated that an
information was received regarding her daughter and she had accordingly, come
from Jogighopa to Tarabari where the matrimonial house was situated and on
reaching the said house could come to know regarding the death of her
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daughter. She has also highlighted the aspect that the PW1, who is a neighbour,
had deposed that the relationship between the deceased and the appellant was
cordial and the deceased had committed suicide.
9. As regards the deposition of PW8 who had deposed that the appellant had
allegedly made a confession before him, the learned Amicus has submitted that
such confession has been stated to be made in the presence of other persons.
She, therefore contends that no other persons were presented or appeared as
witnesses who had heard such confession. She submits that in any case,
extrajudicial confession is a weak piece of evidence and in absence of
corroboration, the same cannot be relied upon. She has also submitted that the
aspect that the deceased had died by committing suicide cannot be totally ruled
out. She submits that a rope was found tied on the neck of the deceased and
attached to the sewing machine.
10. Ms. T. Begum, learned Amicus has also submitted that the death was a
result of asphyxia which would give an indication that the deceased had died of
hanging. She accordingly submits that when other possible postulates were
available leading to the death of the deceased, the appellant cannot be held to
be guilty of causing death to the deceased. The learned Amicus has also
contended that admittedly, the mother of the appellant stays in the same house
and there was no attempt on the part of the prosecution to record the
statement of the mother or produce her as a witness in the trial as her
deposition would have been crucial. She accordingly, submits that the present is
a fit case for interference by giving benefit of doubt to the appellant and acquit
him.
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11. Per contra, Ms. A Begum, learned Addl. PP has submitted that no case for
interference has been made out in the present appeal. She submits that the
offense involved is one under Section 302 of the IPC involving the heinous crime
of murder of the deceased who was none other but the wife of the appellant
who was six months pregnant. She submits that the deceased had originally
come from Jogighopa and was married to the appellant at Tarabari and the
distance by road was about four hours journey. It is submitted that the mother
of the deceased, PW7 had received the telephonic information regarding some
critical condition of her daughter whereafter she along with certain other
persons, including the PW8, had rushed to Tarabari at night of the fateful day.
On reaching, they could find the body of the deceased on the ground with a
rope tied on her neck and attached to a sewing machine.
12. The learned Addl. PP submits that the contention that the death was by
suicide was not at all acceptable both on the aspect that the rope was attached
to a sewing machine as well as the evidence of PW9, the Doctor, who had
conducted the post-mortem upon the deceased. She submits that though a rope
was said to be found tied on the neck of the deceased, the same would, itself
not be a conclusive evidence that the death was by hanging more so, when the
same was attached only to a sewing machine and not to any object at an
altitude like a ceiling fan. She has also drawn the attention of this Court to the
post-mortem report which was proved as Ext.-3 by the Doctor, namely, PW9 in
which the opinion was given that the death was due to asphyxia resulting from
ante-mortem manual strangulation homicidal in nature.
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13. The learned Addl. PP has highlighted the position of PW2 whose version is
consistent with the deposition of the other witnesses. PW2 had deposed that
she was called by the appellant over phone at about 10 pm and on reaching the
house, she had seen the deceased lying on the floor and that the appellant had
told her that she was killed by someone. The explanation tried to be given by
the appellant that the deceased was killed by somebody else is not at all
consistent with the other materials on record. There is nothing on record to
show that the appellant had raised a hue and cry on the death of his wife even
assuming that somebody else had killed her. There is nothing on record even to
suggest that some intruder had entered the house to commit the offence. The
materials on record would also indicate that a version was tried to be introduced
by the defence that the deceased had committed suicide. The said version,
apart from being wholly without any basis is contrary to the medical evidence
produced by the PW9 wherein there is a clear finding that the death was a
result of manual strangulation. On the aspect of extra-judicial confession which
has been deposed by the PW8, it is submitted that it is not necessary that the
other persons, who were present at that time, were witness to such confession
and therefore, there may not be any strict requirement of further corroboration
on the aforesaid aspect.
14. By drawing the attention of this Court to Section 106 of the Indian
Evidence Act, the learned APP has submitted that the present was an ideal case
wherein an explanation ought to have been forthcoming from the appellant. She
submits that at the relevant point of time, it was only the appellant who was
present in the house with the deceased wherein the death had occurred. She
submits that it is not the case of the appellant that at the time of the incident,
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he was elsewhere and therefore, the burden shifts upon the appellant to put
forth a cogent explanation on the incident which was not discharged. The
learned APP has also drawn the attention of this Court to the statement of the
appellant recorded under Section 313 of the Cr.PC wherein he had said that the
death was by commission of suicide which is not consistent with the other
evidence as well as the medical evidence. Ms. Begum, learned APP accordingly
contends that the appeal be dismissed and the conviction be upheld.
15. The rival contentions of the parties have been duly considered and the
materials on record, including LCRs have been carefully examined.
16. The facts, as revealed from the records, portray a very sorry state of affair
wherein a young woman who was pregnant by six months had lost her life in an
unnatural circumstance. The evidence on record, more particularly that of the
PW7, the mother and PW8 would show that the accused was directly implicated
in the offence. In the ejahar lodged by the PW7, the accused was named and
PW8 in his evidence has deposed that a confession was made by the appellant
regarding his involvement in the offence of causing death to his wife.
17. To examine the materials against the appellant, it would be required to
look into the other aspects. PW2 had deposed that she was called by the
appellant at about 10 pm over telephone asking her to come to the house which
she had accordingly done. On reaching, she had found the dead body of the
deceased on the ground and as per her deposition, the appellant had told her
that the deceased was killed by someone. There are other materials on record,
including the statement of the appellant recorded under Section 313 of the
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Cr.PC that the deceased had committed suicide. Both the versions are not at all
supported by any other materials or even appear to be probable or acceptable.
If the projection that the deceased was killed by someone else has to be
accepted, the conduct of the appellant becomes of immense significance.
Admittedly, the appellant did not raise any hue and cry at that point of time
when the incident had occurred and rather, he had called the PW2 to his place.
On the aspect of the projection made that the death was by commission of
suicide, the same does not inspire any confidence at all inasmuch as though a
rope was found tied to the neck of the deceased, the other end was attached to
a sewing machine and not to any object on a higher altitude like a ceiling fan.
The medical evidence clearly shows that the death was by manual strangulation.
For ready reference, the opinion of the doctor conducting the post-mortem is
extracted herein below:
"Death was due to asphyxia resulting from anti-mortem manual
strangulation homicidal in nature. Time since death 12-18 hours
approximately."
18. Under the facts and circumstances, it becomes essential that the appellant
had a burden to discharge explaining the position as envisaged under Section
106 of the Indian Evidence Act. There is no material on record, whatsoever, to
explain the position and though the appellant was admittedly present with the
deceased at the time of the occurrence. On the aspect of the extra-judicial
confession as deposed by PW8, though such confession is a weak piece of
evidence and a conviction cannot be based solely on such confession, in the
instant case, we have seen that the other materials, including the evidence of
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the Doctor would conclusively lead to the complicity of the appellant with the
offence of commission of murder upon his wife. We have also noticed that the
deceased was a young lady aged about 22-23 years and was married about 1½
years ago from the date of the occurrence and was also pregnant and it is really
unfortunate that a young life had come to an end.
19. In view of the aforesaid facts and circumstances, we are of the view that
the conclusion arrived at by the learned Addl. District and Sessions Judge,
Barpeta in convicting and sentencing the appellant is based on cogent materials
which do not call for any interference.
20. The appeal accordingly stands dismissed.
21. Send back the LCR.
22. Before parting, we wish to put on record our appreciation for the
assistance rendered by Ms. T Begum, the learned Amicus Curiae and she would
be entitled for the fee, as prescribed.
JUDGE JUDGE
Comparing Assistant
