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IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Crl. Appeal (J) No. 60 of 2011
Samar Madhua,
S/O—Sri Gopiram Madhua,
Resident of No.3, Lunhsung,
P.O.—Bishmuri,
P.S.—Bishmuri (Kokrajhar),
Dist.—Kokrajhar, B.T.C., Assam.
….Appellant
Versus
The State of Assam
…. Respondent
BEFORE
HON’BLE MR. JUSTICE P. K. SAIKIA AND
HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
For the Appellant : Mr. P. K. Roy Choudhury, Amicus Curiae
For the Respondent : Ms. S. Jahan, Addl. P.P.
Date of hearing : 01.04.2015
Date of judgment : 07.05.2015
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JUDGMENT AND ORDER (CAV)
(P. K. Saikia, J)
This appeal is directed against the judgment and order dated 06.04.2011,
passed by the learned Addl. Sessions Judge, FTC Kokrajhar in sessions Case No.
5/2010, convicting one Samar Madhua of offence u/s 302 IPC and sentencing him
to imprisonment for life and to pay a fine of Rs. 5,000/- i.d., R.I. for another 6 (six)
months for the offence aforesaid.
2. Being aggrieved by and dissatisfied with the aforesaid judgment, the
appellant, namely, Samar Madhua (herein after referred to as the accused person),
has preferred this appeal from jail citing several infirmities in the judgment under
challenge.
3. We have heard Mr. P.K. Roy Choudhury, learned Amicus Curiae appearing
for the appellant and also heard Ms. S. Jahan, learned Addl. P.P., Assam.
4. The facts, projected by the prosecution in the FIR dated 21.08.2009 and in
subsequent trial, in short, are that on 21.08.2009, one Panja Rabha (PW 1) lodged
an FIR with the I/C, Bismuri Police Out Post alleging that his daughter Sushila
Rabha (since deceased), aged about 20 years, got married with the accused Sri
Samar Madhua few months before the incident in question. After their marriage,
they started to live as husband and wife. On 18.08.2009, at about 11 am, accused
person abused his wife (daughter of the informant, PW 1) and killed her thereafter.
5. On the basis of such an FIR, a GD Entry was made by I/C, Bismuri Police
Out Post and forwarded the FIR to the O/C, Kokrajhar Police Station for registering
a case and to take further necessary action against the culprits in accordance with
law. On the receipt of the same, O/C, Kokrajhar Police registered a case, vide
Kokrajhar P.S. Case No. 285/2009, u/s 302/34 IPC and ordered one J. Basumatary,
S.I. of police to investigate the case.
6. Being so entrusted, Sri Basumatary visited the place of occurrence, (in short
PO), conducted inquest on the dead body, sent the same to hospital for post
mortem examination, arrested the accused person, examined the persons, well
acquainted with the facts and circumstances of the case, did other things needful
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and on conclusion of investigation, IO submitted charge sheet u/s 302/34 IPC
against the accused person as well as against his farther Gopi Ram Madhua since
acquitted by the Trial Court under the judgment in question.
7. When the charge sheet was so laid before the jurisdictional Magistrate, he
committed the case to the Court of Session at Kokrajhar since the offence u/s 302
IPC is exclusively triable by the Court of Session. On receipt of the case on
commitment, the learned Sessions Judge, Kokrajhar, transferred the same to the file
of learned Addl. Session Judge, FTC, for disposal in accordance with law.
8. The learned Addl. Sessions Judge, FTC, Kokrajhar on receipt of the case on
transfer and on hearing the learned counsel for the parties, was pleased to frame
charge u/s 302/34 IPC against accused persons and charge, so framed, on being
read over and explained to accused persons, they pleaded not guilty and claimed to
be tried.
9. During trial, the prosecution has examined as many as 8 (eight) witnesses
including the informant, M/O and I/O. The statements of accused persons u/s 313
Cr.P.C. were also recorded. The accused persons pleaded that they were no way
involved with the crime in question. The present appellant further states that on the
fateful morning, he was not in his house since he had to remain away from his
house on the fateful day in order to attend some urgent work. However, on being
required, accused persons declined to adduce any evidence in defence.
10. On conclusion of trial and on hearing the arguments, advanced by the
learned counsel for the parties, learned Trial Court, while acquitting Gopi Ram
Madhua, father of the present appellant, convicted the appellant herein of offence
u/s 302 IPC and sentenced him to punishment as aforesaid. It is that judgment
which has been assailed in the present appeal.
11. Mr. P.K. Roy Choudhury, learned Amicus Curiae appearing for the accused
person arduously submits that the judgment under challenge cannot be sustained
since it suffers from several infirmities of extremely serious in nature. In that
connection, it has been contended that prosecution case is entirely founded on
circumstantial evidence. Law, on the circumstantial evidence, is well settled by now.
In that connection, he relies on the decision of Hon’ble Apex Court in the case of
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Sharad Birdhi Chand Sarda Vs. State of Maharashtra reported in (1984) 4
SCC 116. The relevant part is reproduced below:---
“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 & Anr. v. State of Maharashtra(') where the following observations were made: "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.”
12. He also relied on the decision of Apex Court in the case of Rumi Nath
Dutta Vs. State of Assam reported in (2013) 7 SCC 417 as well as the decision
in the case of Sabir Singh Vs. State of Punjab reported in 1993 (Supply) 3
SCC 41. The relevant part in Sabir Singh (Supra) is reproduced below:--
“Para 7:- A note of caution has also been struck regarding the role of imagination. In the case of Reg v. Hodge, it was said:
“The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.” It has been impressed that suspicion and conjecture should not take the place of legal proof. It is true that the chain of events proved by the prosecution must show that within all human probability the offence has been committed by the accused, but the court is expected to consider the total cumulative effect of all the proved facts along with the motive suggested by the prosecution which induced the accused to follow a particular path. The existence of a motive is often an enlightening factor in a
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process of presumptive reasoning in cases depending on circumstantial evidence.”
13. According to him, in the present case, the circumstances, established by
prosecution, hardly connect the accused person with crime in question since the
circumstances, established by the prosecution, do not form a chain of events
without any break anywhere leading to irresistible conclusion that the accused, and
none else, was the author of the crime, under consideration.
14. Mr. P.K. Roy Choudhury, learned Amicus Curiae has again pointed out that
as per the FIR, the deceased met her death on 18.08.2009. However, the FIR was
lodged on 21.08.2009. Thus, there was several days delay in lodging the case.
However, such delay occurring in lodging the case involving an offence as serious as
murder has not at all been explained. Non-explanation of such a delay in the case in
hand has raised a serious doubt about the authenticity of the entire prosecution
case.
15. In that context, it has been pointed out that in his evidence, I/O states that
he received the FIR on 21.08.2009 and after the receipt of the FIR, he visited the
PO and made the arrangement of conducting an inquest on the dead body through
an Executive Magistrate. Accordingly, Executive Magistrate conducted inquest on
the dead body in response to the request made by the I/O. However, the inquest
report (Ext. 3) reveals that inquest was done, not on 21.08.2009 but on 20.08.2009
instead.
16. How the Executive Magistrate could conduct inquest on the dead body on
20.08.2009 when the I/O made request to the concern authority for sending an
Executive Magistrate to conduct inquest on the dead body only on 21.08.2009
remains totally unexplained. Such a state of affair again raises grave doubt not only
about the authenticity of the claim of the I/O that he made requisition for detailing
an Executive Magistrate to conduct inquest on the dead body but also on the
veracity of the inquest report as well, which was evidently prepared as early as
20.08.2009.
17. Referring to the evidence of Doctor, it has been stated that in his evidence in
chief, the Doctor (PW 7) states that he conducted autopsy on 19.08.2009. However,
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in his cross examination, he states that he conducted autopsy not on 19.08.2009,
but on 21.08.2009 instead. Such inconsistency on a point as vital as date of
conducting autopsy on the body of the deceased, in turn, adds more and more
suspicion to the prosecution case.
18. Learned Amicus Curiae further submits that there are some major
contradictions between the evidence of non official witnesses and the evidence of
the Doctor as regards the cause of death of the wife of the accused. Though the
Doctor had concluded that the death was homicidal in nature, some of the non
official witnesses claim that on their arrival at the PO, they learnt that the wife of
the accused died after consuming poison.
19. According to learned Amicus Curiae, it is established law that when there is
contradiction between the Medical evidence and the evidence, rendered by ocular
witness (es) regarding cause of injury, death etc., the version of ocular witnesses
needs to be accepted if same is found reliable. In that context, our attention has
been drawn to the decision of Apex Court in the case of Gajoo vs State of
Uttarakhand, reported in (2012) 9 SCC 532. The relevant part is reproduced
below:---
“18. We have also noticed that there is no variation between the medical evidence and the ocular evidence, and once they are co-jointly read, it does not falsify either the statement of the witnesses, PW2 and PW3 or the Post-Mortem Report, Ext. Ka-10. In fact, both of them must be read as complimentary to each other. Even if for the sake of argument we assume that there is some variation, still, it would be so immaterial and inconsequential that it would not give any benefit to the accused. It is a settled principle by a series of decisions of this Court that while appreciating the variation between the medical evidence and ocular evidence, primacy is given to the oral evidence of the witnesses. Reference can be made to the judgments of this Court in the case of Kapildeo Mandal and Ors. v. State of Bihar [(2008) 16 SCC 99], State of U.P. v. Krishan Gopal [(1998) 4 SCC 302], Bhajan Lal @ Harbhajan Singh & Ors. v. State of Haryana [(2011) 7 SCC 421].”
20. It is also the case of learned Amicus Curiae that although it has been alleged
that the accused killed his wife subjecting her to brutal assault, the I/O could not
seize any weapon of offence, allegedly used in inflicting the wounds on the
deceased aforementioned. Inability of I/O to seize weapon of offence, purportedly
used in committing the crime in question, has again greatly demolished the very
basis of prosecution case.
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21. Assailing the prosecution case more and more, learned Amicus Curiae again
submits that in a case based on circumstantial evidence, motive plays a pivotal role
although motive may not be that important in a case based on direct evidence. The
case under consideration is entirely based on circumstantial evidence and as such,
the prosecution was under enormous obligation to find out the motive of the
accused persons in committing the crime in question.
22. However, in the case aforesaid, motive of the accused person in committing
such a crime has not been established which to a great extent shattered the very
basis of prosecution case itself, more so, when the prosecution case is also found
suffering from some other serious infirmities. He, therefore, prays to this Court to
acquit the accused person and for setting aside the judgment of the Trial Court.
23. However, Ms. S. Jahan, learned Addl. P.P. strongly contends that the
prosecution has successfully proved the charge u/s 302 IPC against the accused
person beyond all reasonable doubt and in order to bring home such a contention,
she claims that though the prosecution case is entirely premised on circumstantial
evidence, prosecution was successful in establishing several circumstances of
enormously incriminating nature and such circumstances together lead anyone to an
irresistible conclusion that the accused, and none else, was the person responsible
for killing his wife on or about 18.08.2009.
24. In support of such contention, it has been stated that in their evidence, PW
1, PW 2, PW 3 and PW 4 categorically state that when they arrived at the PO, they
found injury marks on the body of the deceased. They also noticed blood oozing out
from the mouth and nostril of wife of the accused person. Such evidence finds
corroboration from the inquest report, prepared by the I/O during the course of
investigation, which was proved as Ext. 3.
25. It has again been contended that the Doctor who conducted post mortem
examination on the deceased noticed injury marks on different parts of the body of
the deceased. More importantly, he also noticed one grievous injury on the skull
which, according to him, occasioned the death of the deceased on the morning in
question.
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26. According to learned Addl. P.P., there is evidence on record to show that the
deceased and the accused lived separately from his other family members in his
house during the time under consideration. There is nothing on record to show that
on the fateful morning or the night which preceded the eventful day, there was any
person, other than the accused and the deceased, in their household. In other
words, all evidence on record suggests that during the time under consideration,
the accused and the deceased were alone in the ill fated household.
27. Such revelation in absence of any explanation from the side of accused
person, again demonstrates that none except accused was the person responsible
for killing his wife on or about 18.08.2009. Since there was no explanation from the
side of accused person, how his wife met her death on or about 18.08.2009 despite
their house being not occupied by any other person or despite there being no
evidence of 3rd party committing the crime in question, it is obligatory on the part of
the Court to hold the accused responsible with the crime he was charged with.
28. The accused fled the scene soon after the incident for which he could not be
arrested immediately after the incident in question which is why he was arrested by
the police after 2 (two) days of aforesaid incident. The abscondance of accused,
soon after the incident aforementioned is one more grounds which again shows that
it was the accused, and none else, who killed his wife on or about 18.08.2009.
29. It has been stated that all the incriminating circumstances were notified to
the accused person but he did not offer reasonable explanation to such
incriminating circumstances which stared direct at him. Such conduct on the part of
accused person in giving evasive answer to the questions put to him during his
examination u/s 313 CrPC, provided the prosecution the missing link, if any, in its
case.
30. In support of such contention, learned Addl. P.P., has relied on the decision
rendered by The Apex Court in the case of State of Maharashtra Vs. Suresh
reported in (2000) 1 SCC 471 as well as in Rumi Nath Dutta Vs. State of
Assam reported in (2013) 7 SCC 417. The relevant part in Rumi Nath Dutta
(Supra) is reproduced below:-
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“Para 21: At this juncture, as mentioned earlier we proceed to advert to the issue pertaining to falsehood. In this context we may fruitfully refer to the authority in State of Maharashtra v. Suresh, wherein it has been held that a false answer offered by the accused when his attention is drawn to the circumstances, it renders the circumstances to be of inculpating nature. In such a situation a false answer can also be counted as providing “a missing link” for completing the chain. In the case at hand, the factum of recovery thorough the witness has been proven that the accused persons had led to recovery. When it was put to them they had given an answer in the negative in a nonchalant manner. The incriminating materials were concealed and they were discovered being led by the accused persons.”
31. In view of above, learned Addl. P.P., urges this court to dismiss the present
appeal on affirming the judgment under challenge.
32. We have heard the rival submissions having regard to the evidence on
record. Before we proceed further, we need to consider the evidence of PW 7, Dr.
R.C Debnath, who conducted the autopsy on the body of the deceased at Kokrajhar
Civil Hospital on 19.08.2009. According to him, on the date aforesaid, he conducted
post mortem examination on a female body aged about 20 years and found the
following:--
“An average built, dark coloured female, dead body, aged about 21 years, wearing a black Ganjee type shirt and a lungi type Mekhela. She has black hair 2 ½ ft long. Mouth is open. Tongue is protruded. Body is partially decomposed. Multiple marks of injuries-present over both hands and chest back side and abdomen. A black spot on head on back side. On dissection: there is fracture of 2” x 2” size over skull on the back side of head occipital region with collection of blood. Liver is rupture. There is haemoperitium.
Opinion:- In my opinion death is due to shock and haemorrhage due to head injury as a result of impact by a blunt object which is ante-mortem in nature. Ext. 1 is the P.M. report, Ext 1(1) is my signature and Ext 1(2) is the signature of Joint Director.”
33. In his cross examination, PW 7 deposes that he conducted autopsy on the
dead body not on 19.08.2009 but on 21.08.2009. The evidence of Doctor also
reveals that when he examined the dead body, he found it in a partly decomposed
condition. The evidence of Doctor, however, reveals that the deceased died a
homicidal death sometime before his conducting autopsy on the dead body on
19.08.2009 (21.08.2009 ?). He also opined that the deceased died on sustaining
injuries on her head which was caused by blunt object.
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34. So situated, let us consider the testimonies of witnesses, more particularly,
the evidence of PW 1, Sri Panja Rabha, and PW 4, Smti. Saleswari Rabha, father
and mother of the deceased respectively. According to PW 1, his deceased daughter
was married to the accused person sometime in the month of April/May 2009. One
day, he got information that his daughter died an unnatural death. He immediately
went to the house of accused person.
35. His wife too went to the house of the accused person but she preceded him.
On arriving at the PO, they found the body of the deceased was covered with a
cloth and by removing the same, he found marks of injuries on several parts of her
body which were seemingly caused by blunt object. He heard from the people
gathered at the PO that the accused used to beat his wife quite regularly.
36. Thereafter, he lodged an FIR with I/C Bishumuri Petrol post on 21.08.2009.
In due course, police took the dead body for taking further necessary action.
According to PW 1, Gopiram Madhua, father of the accused, lived separately from
his son during the time under consideration. In his cross examination, he admitted
that the accused came to his house when he and his wife were still in the ill fated
household. The suggestion that his daughter died of taking poison was denied by
him.
37. PW 4, Smti. Saleswari Rabha, deposes in the line, very similar to the
testimonies, rendered by PW 1 since she is found saying that one day at about 4 pm
she got an information that her daughter was no more. Accordingly, she
immediately rushed to the house of the accused person taking Panja and Ranjit
Rabha with her. On arriving at the house of the accused person, she found her
daughter being covered with a cloth and by removing the same, she found her
daughter dead with injuries on her body. She also noticed blood oozing out from the
nostril and mouth.
38. According to her, her son-in-law was not in his house but he was
apprehended next day. In her cross-examination, she further states that on several
occasions her daughter left her matrimonial house on being beaten by her husband.
PW 3, Sri Sukur Singh Rabha, had rendered evidence which is very identical to the
evidence rendered by PW 1 and PW 4. PW 3 further states that one day, he found
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the accused and the deceased at the market. He also saw the accused assaulting
his wife.
39. He, however, persuaded the accused person not to assault his wife and
advised him to return home with his wife. According to him, one day, after coming
to the house of the accused person, he asked the father of the accused person as to
how the deceased met her death. On being so inquired, father of the accused
person told him that his son, the present accused, habitually assaulted his wife
although he could not found the reason of such assault inasmuch as he found his
daughter-in-law to be a nice girl.
40. PW 5, Sri Jitu Tudu and PW 6, Sri Bishnu Mense, who are related to the
accused person, depose that one day, on coming to know that the wife of the
accused person met her death, they came to the PO and learnt from the people
gathered there that the deceased died after consuming poison.
41. In his evidence, PW 8, Sri J. Basumatary states that on 21.08.2009, he was
working as I/C, Bismuri Police Patrol Post. On that day, he received an FIR from PW
1. On receipt of the same, he made a GD Entry and forwarded the FIR to the O/C,
Kokrajhar P.S., for doing further needful. He proved the said FIR as Ext. 2. Since he
was entrusted with the investigation of the case, he visited the PO during the course
of investigation, also requisitioned the service of an Executive Magistrate to conduct
inquest on the dead body.
42. On being so required, the Executive Magistrate conducted an inquest on the
dead body and prepared a report in that connection, which he proved as Ext. 3.
Thereafter, he sent the dead body to hospital for post mortem examination and did
other things needful and on conclusion of investigation, he submitted charge sheet
u/s 302/34 IPC against the appellant herein as well as his father.
43. In his cross-examination, PW 8 states that during investigation, PW 3 did not
tell him that one day, he found the deceased and the accused at the market and
also found the accused person assaulting his wife. In his cross examination he
admits that Ext. 3, inquest report, shows that the inquest was done on the body of
the deceased on 20.08.2009.
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44. Above being the evidence on record, let us see how far such evidence makes
out the charge, leveled against the accused person. We have carefully considered
the evidence on record having regard to the judgment under challenge as well as
arguments, advanced by learned counsel for the parties. A careful perusal of the
testimonies of PW 1 and PW 2 reveal that on getting the information about the
death of their daughter, they rushed to the house of accused person and found
their daughter lying dead in the house of accused person. Thereafter, PW 1 (father
of the deceased), lodged the FIR with police on 21.08.2009.
45. On perusal of the FIR, it is found that the incident in question occurred on
18.08.2009 but the FIR was lodged with police only on 21.08.2009. Therefore, there
was delay of 3 days in lodging the FIR in the case aforementioned. It is a settled
law that the delay in lodging the case may not always be fatal. But to save the
prosecution case from exposing the charge of being concocted one for delayed
lodging of the case, the informant needs to explain properly the reason which
caused delay in setting criminal law in motion.
46. Coming back to our case, we have already found that there was delay of 3
days in lodging the case involving an offence as serious as murder. However, not a
single word was stated as to why such a delay occurred in lodging the FIR in the
case stated above. In the facts and circumstances of the case in hand, in our
opinion, such delay requires the court to hold that everything was not hunky dory
on the part of informant in not lodging the case soon after the commission of crime
in question.
47. We may note here that in his evidence, I/O (PW 8) states that he got
information about the incident in question for the first time only on 21.08.2009 and
thereafter, on the receipt of the FIR, he made a GD Entry and forwarded the same
to the O/C, Kokrajhar Police Station for registering a case and for doing further
needful. In due course, he was entrusted with the investigation. It is also in his
evidence that on being entrusted with the investigation on 21.08.2009, he sent a
requisition to the concern authority for detailing an Executive Magistrate to conduct
inquest on the dead body and in due course, he obtained the service of an
Executive Magistrate to conduct inquest on the dead body.
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48. The evidence of PW 8 further reveals that on being so required, the
Executive Magistrate conducted inquest on the dead body and prepared a report in
that connection which he proved as Ext 3. We have perused the Ext. 3, inquest
report. A perusal of the Ext 3 reveals that inquest was done, not on 21.08.2009 as
claimed by PW 8 but, it was done only on 20.08.2009 meaning thereby that inquest
was done well before the lodging of the FIR by the informant on 21.08.2009. The
conducting of inquest by Executive Magistrate even before lodging of the FIR again
shows that the prosecution case cannot be believed without a pinch of salt.
49. We have found that in his cross examination, the Doctor claims that he
conducted post mortem examination on 21.08.2009. Such evidence finds supports
from post mortem examination report which was proved as Ext. 1. However, in his
examination-in-chief, he also claims that he conducted post mortem examination,
not on 21.08.2009 but on 19.08.2009. Such evidence of Doctor makes his entire
testimony, including his opinion as to the cause of death of deceased enormously
doubtful.
50. One may notice here that in their evidence, PW 5 and PW 6 had stated that
on arriving at the PO, they heard the people gathered there saying that the
deceased died of consuming poison. It has rightly been contended by the learned
Amicus Curiae that when those PWs were not declared hostile, it needs to be
concluded that those two PWs rendered statements before the I/O during the
course of investigation which is very similar to the evidences rendered by PW 5 and
PW 6 before the Court during trial.
51. In the face of such revelation, there cannot be any escape from the
conclusion that the I/O was duty bound to send the viscera of the deceased to the
Forensic Expert to ascertain if the doubt of people regarding the deceased
committing suicide having consumed poison is true. But same was not done, and
that too, without assaigning any reason whatsoever. Such a failure on the part of
I/O again shows that the contention that the deceased died having consumed
poison cannot be ruled out.
52. As pointed out by learned Amicus Curiae, the evidence of Doctor can be
given preference over the testimonies of ocular witnesses only if the evidence of
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Doctor is found trustworthy. Unfortunately, our forgoing discussion firmly reveals
that the evidence of the Doctor become very suspicious since he is found giving
contradictory evidence on a point as vital as time of conducting post mortem
examination on the dead body and as such, no reliance whatsoever can be placed
on the evidence of Doctor regarding the cause of death of the deceased.
53. The fact that the Executive Magistrate conducted inquest on the dead body
on 20.08.2009 shows that the Executive Magistrate conducted inquest on the body
of the deceased even before lodging of the FIR by the informant on 21.08.2009.
Such serious infirmity in the prosecution case coupled with the fact that there was
delay of 3 days in lodging the FIR in regard to incident under consideration despite
informant’s daughter having died on 18.08.2009 only serve to show that
prosecution case cannot be accepted without good deal of suspicion.
54. It may also be noticed that some witnesses, such as, PW 1, PW 2 and PW 4
deposed that they heard that the accused assaulted his wife. They also claim that
they came to know about such incident from other persons. However, those persons
who reported about the deceased being assaulted by the accused person habitually
were not made witnesses in the case in hand which only makes the evidence of
those witnesses that they heard that the victim being assaulted by the accused
person a hearsay evidence on which no reliance can be placed.
55. Though in his evidence, PW 3 claims that one day, he saw the accused
assaulting his wife at market place and although he claims that he persuaded the
accused not to assault his wife in a public place and requested the parties to go
home, yet, he did not divulge such an important episode to the I/O while he was
being examined u/s 161 CrPC during the course of investigation. Omission to state
such vital information to the I/O during investigation again makes his evidence
doubtful since his evidence too suffers from vice what is commonly called as
contradiction.
56. We have found that incident in question was reported to PW 1 and PW 2 by
some persons for which they rushed to the house of the accused person and found
their daughter lying dead in the house of the accused person. However, persons
from whom they came to know about the incident was not identified by I/O during
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investigation requiring this court to view the prosecution case with suspicion since
non identification and non examination of those persons require this court to draw a
presumption as contemplated in Illustration 114 (g) of the Evidence Act.
57. Learned Addl. P.P., submits that the accused had absconded soon after the
alleged incident for which he could be arrested 2 (two) days after the incident under
consideration. However, such contention is not fully supported by evidence on
record since PW 1 found the accused in his house while PW 1 and PW 2 were still in
the ill fated household. Therefore, the contention that the accused has absconded
soon after the incident is found not wholly reliable.
58. We have already found that I/O has submitted charge sheet u/s 302/34 IPC
against the accused person and his father. Both the accused persons stood charged
of offence u/s 302/34 IPC. However, father of the present accused person was
acquitted by the Trial Court for want of evidence. The acquittal of father of the
present accused person, in the facts and circumstances, detailed here-in-before
clearly shows that judgment under challenge is susceptible to charge of un-
tenability which again further fortify our conclusion that prosecution could not prove
the case beyond all reasonable doubt.
59. Our forgoing discussion reveals the following circumstances: ---
(i) The victim was the wife of accused person, (ii) she was married
by the accused person few months before her death, (iii) she died on
or about 18.08.2009, (iv) her death was unnatural, (v) she died in
the house of accused person, (vi) during the time under
consideration, the accused with his wife and his other family
members lived in same household and (vii) the accused was arrested
during the course of investigation although charge of accused
absconding has not been proved as it is found from our forgoing
discussion.
60. We have already found that the case in hand is a case which is based
entirely on circumstantial evidence where prosecution is required to prove its case
by establishing a chain of events unbreakable anywhere leading to sole and lone
conclusion that the accused and none else was the author of the crime in question.
16
Crl. A.(J). No. 60 of 2011
61. The forgoing circumstances though raised a serious doubt about the
complicity of the accused person in the crime in question, yet, such doubt is not
enough to conclude conclusively that the accused, and none else, was the person
responsible for committing the crime in question as required under the law.
62. In this connection, it may be stated that there is a huge gap between the
proof and suspicion since suspicion cannot take place of proof. Unfortunately, in our
present case, the prosecution could not bridge the gap between suspicion and proof
requiring this court to hold that prosecution has not been able to prove the case
beyond all reasonable doubt.
63. In view of our forgoing discussion, prosecution could not establish a chain of
events unbreakable anywhere although circumstances, proved, raise very serious
suspicion about the complicity of the accused person in the crime in question.
64. Resultantly, the judgment under challenge is found unsustainable in law and
same is, therefore, liable to be quashed and set aside.
65. Consequently, appeal is allowed and judgment under challenge is quashed
and set aside and accused is acquitted of offence u/s 302 IPC and he is ordered to
be released, if he not required in connection with any other case.
66. Return the LCR forthwith.
67. We deeply appreciate the assistance rendered by Mr. P. K. Roy Choudhury,
learned Amicus Curiae in disposing the present appeal. We, therefore, direct the
State to pay him an amount of Rs. 7,000/- as being his professional fee. Same
needs to be paid within a period of 3 months from the date of receipt of a certified
copy of this judgment.
JUDGE JUDGE
Rupam
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25. We have heard the rival submissions having regard to the evidence on
record. Before we proceed further, we need to consider the evidence of PW 7, Dr.
R.C Debnath, who conducted the autopsy on the body of the deceased at Kokrajhar
Civil Hospital on 19.08.2009. According to him, on the date aforesaid, he conducted
autopsy on a female body aged about 20 years and found the following:--
“An average built, dark coloured female, dead body, aged about 21 years, wearing a black Ganjee type shirt and a lungi type Mekhela. She has black hair 2 ½ ft long. Mouth is open. Tongue is protruded. Body is partially decomposed. Multiple marks of injuries-present over both hands and chest back side and abdomen. A black spot on head on back side. On dissection: there is fracture of 2” x 2” size over skull on the back side of head occipital region with collection of blood. Liver is rupture. There is haemoperitium.
Opinion:- In my opinion death is due to shock and haemorrhage due to head injury as a result of impact by a blunt object which is ante-mortem in nature. Ext. 1 is the P.M. report, Ext 1(1) is my signature and Ext 1(2) is the signature of Joint Director.”
26. In his cross examination, PW 7 deposes that he conducted autopsy on the
dead body not on 19.08.2009 but on 21.08.2009. The evidence of Doctor also
reveals that when he examined the dead body, he found it in a partly decomposed
condition. The evidence of Doctor, however, reveals that the deceased died a
homicidal death sometime before his examination of the dead body on 19.08.2009
(21.08.2009 ?) on sustaining injuries on her head which was caused by blunt object.
27. So situated, let us consider the evidences of witnesses, more particularly,
the evidence of PW 1, Sri Panja Rabha, and PW 4, Smti. Saleswari Rabha father
and mother of the deceased respectively. According to PW 1, his deceased daughter
was married to the accused person some time back in the month of April/May 2009.
One day, he got information that his daughter died an unnatural death. He
immediately went to the house of accused person.
28. His wife too went to the house of the accused person but she preceded him.
On arriving at the PO, they found the body of the deceased was covered with a
cloth and by removing the same, he found marks of injuries on several parts of her
20
Crl. A.(J). No. 60 of 2011
body which were seemingly caused by blunt object. He heard from the people
gathered at the PO that the accused used to beat his wife quite regularly.
29. Thereafter, he lodged an FIR with I/C Bishumuri Petrol post on 21.08.2009.
In due course of time, police took the dead body for taking further necessary action.
According to PW 1, Gopiram Madhua, father of the accused, lives separately from
his son. In his cross examination, he admitted that the accused came to his house
when he and his wife was still in the ill fated household. The suggestion that his
daughter died of taking poison was denied by him.
30. PW 4, Smti. Saleswari Rabha, deposes on the line, very similar to the
testimonies, rendered by PW 1 since she is found saying that one day at about 4
p.m. she got an information that her daughter was no more. Accordingly, she
immediately rushed to the house of the accused person taking Panja and Ranjit
Rabha with her. On arriving at the house of the accused person, she found her
daughter being covered with a cloth and by removing the same, she found her
daughter dead with injuries on her body. She also noticed blood oozing out from the
nostril and mouth.
31. According to her, her son-in-law was not in his house but he was
apprehended next day. In her cross-examination, she further states that on several
occasions her daughter left her matrimonial house on being beaten by her husband.
PW 3, Sri Sukur Singh Rabha, had rendered evidence which is very identical to the
evidence rendered by PW 1 and PW 4. PW 3 further states that one day, he found
the accused and the deceased at market. He also found that the accused assaulting
his wife.
32. He, however, persuaded the accused person not to assault his wife and
advised him to return home with his wife. According to him, one day, after coming
to the house of the accused person, he asked the father of the accused person as to
how the deceased met her death. On being so inquired, father of the accused
person told him that his son, the present accused, habitually assaulted his wife
although he could not found the reason of such assault inasmuch as, he found his
daughter-in-law to be a nice girl.
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Crl. A.(J). No. 60 of 2011
33. PW 5, Sri Jitu Tudu and PW 6, Sri Bishnu Mense, who are related to the
accused person, depose that one day, on coming to know that the wife of the
accused person met her death, they came to the PO and learnt from the people
gathered there that the deceased died after consuming poison.
34. In his evidence, PW 8, Sri J. Basumatary states that on 21.08.2009, he was
working as I/C, Bismuri Police Patrol Post. On that day, he received an FIR from PW
1. On receipt of the same, he made a GD Entry and forwarded the FIR to the O/C,
Kokrajhar P.S., for doing further needful. He proved the said FIR as Ext. 2. Since he
was entrusted with the investigation of the case, he visited the PO during the course
of investigation, also requisitioned the service of an Executive Magistrate to conduct
inquest on the dead body.
34. On being so required, the Executive Magistrate conducted an inquest on the
dead body and prepared a report in that connection, which he proved as Ext. 3.
Thereafter, he sent the dead body to hospital for post mortem examination and did
other things needful and on conclusion of investigation, he submitted charge sheet
u/s 302/34 IPC against the accused person herein as well as his father.
35. In his cross-examination, he states that PW 3 did not tell him during
investigation that one day, he found the deceased and accused at market and also
found the accused person assaulting his wife. Ext. 3, inquest report, reveals that the
inquest was done on the body of the deceased on 20.08.2009.
36. Above being the evidence on record, let us see how far such evidence makes
out the charge, leveled against the accused person. It is worth noting here that
though PWs, particularly, PW 1, PW 2, PW 3 and PW 4 were subjected to detailed
cross examination, yet, nothing did emerge there-from to conclude that what they
have stated before the court during trial cannot be accepted for any reason
whatsoever.
37. On reading the evidence of aforesaid PWs, particularly the evidence of PW 1,
PW 2 PW 3 and PW 4, we have found that prosecution has proved the following
circumstances beyond all reasonable doubt.
(i) The accused had married the deceased sometime in April/May 2009,
22
Crl. A.(J). No. 60 of 2011
(ii) The relationship between the accused and the deceased was far from cordial
during the time of consideration and such evidence is found evident from the
testimonies of PW 1, PW 2 and PW 4,
(iii) All the non official witnesses saw the injury marks on the body of the deceased
on their arrival at the PO.
(iv) Some of the PWs , viz., PW 1, PW 2, PW 3 and PW 4 also noticed blood oozing
out from the nostrils and mouth of the deceased.
(v) The inquest done on the dead body also reveals that deceased sustained several
injuries before her death.
(vi) The Doctor who conducted autopsy on the dead body firmly opined that death
was homicidal in nature.
(vii) Though PW 5 and PW 6, who happen to be the relatives of the accused
person, claim that deceased died of taking poison, such evidence is found to be
without any substance.
(viii) During the time under consideration the accused and the deceased live
separately from his other family members.
(ix) There was no evidence on record to show that any person other than the
accused and the deceased occupied the household in question on or about
18.09.2009.
38. When all these circumstances are read together, it would appear more than
clear that those circumstances form a chain of events, without any break anywhere,
which leads to irresistible conclusion that the accused person, and none else, had
committed the crime under consideration.
39. On the perusal of the record it is found that the accused fled the scene soon
after the incident in question for which he was required to be arrested by the I/O 2
(two) days after the incident. The fleeing of the accused from the scene for a
23
Crl. A.(J). No. 60 of 2011
considerable period after the incident in question strongly suggests that the accused
had a role which resulted in homicidal death of his wife.
40. It may be noticed here that all the incriminating circumstances which stared
direct at the accused person, were notified that the accused while he was being
examined u/s 313 CrPC. But instead of giving reasonable explanations to those
incriminating circumstances, he gave evasive replies.
41. It is a settled law if the accused fails to explain the incriminating
circumstances while such circumstances are brought to his notice while being
examined u/s 313 Cr.P.C., such failure may provide the prosecution side missing link
if any, in the prosecution case.
42. In our considered view, since the accused did not explained some very
incriminating circumstances having serious adverse implications on the defence plea
of innocence, it needs to be concluded that the accused could not reply those
incriminating circumstances appearing against him since he was clearly involved
with the crime in question.
43. It may be stated that the Doctor who conducted autopsy on the dead body
on 21.08.2009, found the body in semi decomposed condition. Though he did not
give opinion regarding the time of death of the deceased, yet, it may be concluded
that the victim died long before the Doctor’s conducting autopsy on the dead body.
This clearly suggests that the deceased might have died on or around 18.08.2009.
44. But the averments made in the FIR reveals that the death of the deceased
was communicated to the parents only on 21.08.2009. Such extremely unnatural
conduct on the part of the accused person does not augur well to advance the plea
of innocence of the accused person. Rather it provides one more seal of approval to
the clam if the prosecution that the accused had assaulted and killed his wife on or
around 18.08.2009.
45. We have found that the relationship between the deceased and the accused
person was far from cordial at all the material points of time. The evidence of
several PWs including PW 3, who learnt from father of the accused, shows that the
accused habitually ill-treated his wife. Such evidence, rendered by PW 3, remains
24
Crl. A.(J). No. 60 of 2011
without being challenged. Such unchallenged evidence also shows the motive of the
accused in liquidating the life of his wife.
46. We may also note that PW 3 claims that one day, he met the accused and
the deceased at a market. He also saw the accused assaulting his wife. Though PW
3 did not disclosed such episodes to the IO during investigation, yet, in our opinion,
such omission, in the facts and circumstances on the case under consideration,
cannot be regarded as contradictions as contemplated in sec 162 Cr.P.C. Such
revelation again shows the motive of the accused in killing his wife.
47. Those circumstances in our considered opinion, fortify more and more the
claim of prosecution that the accused, and none else, was the person responsible
for killing his wife on or about 18.08.2009.
48. We may noticed here the learned Amicus Curiae submits that prosecution
should not be believed for the reason aforementioned, however, on considering the
evidence on record we find that none of the allegation aforementioned was based
on facts on record and as such, such an allegation needs to be rejected for the
same reason the decision relied on by the learned Amicus Curiae are found
inapplicable to the case in hand.
49. For the reason aforementioned we are of the opinion that prosecution has
successfully proved the charge u/s 302 IPC against the accused person and as such,
we find no reason to interfere with the judgment under challenge.
50. Accordingly, the present appeal is dismissed being found devoid of merit.
JUDGE JUDGE
Rupam
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Crl. A.(J). No. 60 of 2011
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Crl. A.(J). No. 60 of 2011
New ly added portion dictated on 21.04.2015.
Mr. P.K. Roy Choudhury, learned Amicus Curiae has pointed out that as per
the FIR, the deceased met her death on 18.08.2009. However, the FIR was lodged
on 21.08.2009. Thus, there was several days delay in lodging the case. However,
such delay occurring in lodging the case involving an offence as serious as murder
has not been at all been explained. Non-explanation of such a delay in the case in
hand has raised a serious doubt about the authenticity of the entire prosecution
case.
Referring to the evidence of Doctor, it has been stated that in his evidence in
chief, the Doctor (PW 7) states that he conducted autopsy on 19.08.2009. However,
in his cross examination, he states that he conducted autopsy not on 19.08.2009,
but on 21.08.2009 instead. Such inconsistency on a point as vital as date of
conducting autopsy on the body of the deceased in turn makes the evidence of PW
7 very suspicious.
In that context, it has been pointed out that in his evidence, I/O states that
he received the FIR on 21.08.2009 and after the receipt of the FIR, he visited the
PO and made the arrangement of conducting an inquest on the dead body through
an Executive Magistrate. Accordingly, Executive Magistrate conducted inquest on
the dead body in response to the request made by the I/O. However, the inquest
report (Ext. 3) reveals that inquest was done, not on 21.08.2009 but on 20.08.2009
instead.
How could the Executive Magistrate conduct inquest on the dead body on
20.08.2009 when the I/O made request to the concern authority for sending an
Executive Magistrate to conduct inquest on the dead body on 21.08.2009 remains
totally unexplained. Such a state of affairs raise grave doubt not only about the
authenticity of the claim of the I/O that he made requisition for detailing an
Executive Magistrate who conduct inquest on the dead body but also on the veracity
of the inquest report as well which was evidently prepared as early as 20.08.2009.
According to learned Amicus Curiae, it is in the evidence of PW 5 and PW 6
that when they arrived at the PO, they heard people saying that deceased died of
consuming poison. Since those two witnesses were not declared hostile it can be
27
Crl. A.(J). No. 60 of 2011
safely presumed that such a statement was also made to the I/O when the later
examined him during the course of investigation. Such a state of affair again only
requires the I/O to send the vicera of the deceased to Forensic Expert to rule out
the possibility of deceased dying on consuming poison.
Unfortunately, same was not done which again throws the prosecution case
to one more maze of suspicion. Equally unfortunately, it becomes one more
testimony of prosecution case not being proved beyond all reasonable doubt, since
it makes an already doubtful testimony of Doctor more and more unreliable. On all
those counts, learned Amicus Curiae submit this court to acquit the accused person
giving him the benefit of doubt on setting aside the judgment under challenge.
We have carefully considered the evidence on record having regard to the
judgment under challenge as well as argument advanced by learned counsel for the
parties. A careful perusal of the evidence of PW 1 and PW 2 reveals that on getting
the information about the death of their daughter, they rushed to the house of
accused person and found their daughter lying dead in the house of accused
person. Thereafter, PW 1 (father of the deceased), lodged the FIR with police on
21.08.2009.
The statement in the FIR shows that the incident in question occurred on
18.08.2009 but the FIR was lodged on 21.08.2009. Therefore, there is a delay of 3
days in lodging the FIR in the case aforementioned. It may be noticed that when
the Doctor conducted autopsy on the dead body, he found the dead body in a partly
decomposed condition. The incident in question took place in later part of
September, 2009 meaning thereby that the person must have died well before the
Medical Officer conducting post mortem examination on the dead body aforesaid. It
strongly suggests that FIR was lodged after long after the incident in question had
taken place.
It is a settled law that the delay in lodging the case may not always be
fatal. But to save the prosecution case from exposing the charge of being concocted
one for delayed lodging of the case, the informant needs to explain the reason
which caused delay in setting criminal law in motion.
28
Crl. A.(J). No. 60 of 2011
Coming back to our case, we have already found that there was delay of 3
days in lodging the case involving an offence as serious as murder. However, not a
single word was stated as to why such a delay occurred in lodging the FIR in the
case stated above. In the facts and circumstances of the case at hand, in our
opinion, such delay requires the court to hold that everything was not hunky dory in
informant not lodging the case soon after the commission of crime in question.
We may note here that that in his evidence, I/O (PW 8) stated that he got
information about the incident in question for the first time only on 21.08.2009 and
thereafter, on the receipt of the FIR, he made a GD Entry and forwarded the same
to the O/C, Kokrajhar Police Station for doing further needful. In due course, he was
entrusted with the investigation. It is also in his evidence that on being entrusted
with the investigation on 21.08.2009, he sent a requisition to the concern authority
for detailing an Executive Magistrate to conduct inquest on the dead body and in
due course he obtained the service of an Executive Magistrate to conduct inquest on
the dead body
The evidence of PW 8 further reveals that on being required, the Executive
Magistrate conducted inquest on the dead body and prepared a report in that
connection which he proved as Ext 3. We have perused the Ext. 3, inquest report. A
perusal of the Ext 3 reveals that inquest was done, not on 21.08.2009, but, it was
done only on 20.08.2009 meaning thereby that inquest was done well before the
lodging of the FIR by the informant on 21.08.2009. The conduct of inquest by
Executive Magistrate even before lodging of the FIR again shows that the
prosecution case cannot be believed without a large grain of salt.
We have found that in his cross examination, the Doctor claims that he
conducted post mortem examination on 21.08.2009. Such evidence finds supports
from post mortem examination report which was proved as Ext. 1. However, in his
examination-in-chief, he also claims that he conducted post mortem examination,
not on 21.08.2009 but on 19.08.2009. Such evidence of Doctor makes his entire
testimonies, including his opinion regarding the death of deceased enormously
doubtful.
29
Crl. A.(J). No. 60 of 2011
One may noticed here that in their evidence, PW 5 and PW 6 had stated that
on arriving at the PO, they heard the people gathered at such place saying that the
deceased died of consuming poison. It has rightly been contended by the learned
Amicus Curiae that when those PWs were not declared hostile, it needs to be
concluded that those two PWs rendered such a statement before the I/O during the
course of investigation.
In the face of such revelation there cannot be any escape from the
conclusion that the I/O was duty bound to send the viscera of the deceased to the
Forensic Expert to ascertain if the doubt of people regarding the deceased
committing suicide having consume poison is true. But same was not done and that
too without assaigning any reason whatsoever. Such a failure on the part of I/O
again shows that the contention that deceased died having consumed poison cannot
be ruled out.
As pointed out by learned Amicus Curiae, the evidence of Doctor can be
given preference over the testimonies of ocular witnesses only if the evidence of
Doctor is found trustworthy. Unfortunately, our forgoing discussion firmly reveals
that the evidence of the Doctor become very suspicious since he is found giving
contradictory evidence on a point as vital as time of conducting post mortem
examination and as such, no reliance whatsoever can be placed on the evidence of
Doctor. The fact that the Executive Magistrate conducted inquest on the dead body
even before lodging of the FIR by the informant on 21.08.2009 and the fact that
that was a delay of 3 days in lodging the FIR in regard to incident under
consideration despite informant’s daughter died on 18.08.2009 makes such a
conclusion inevitable.
It may also be noticed that some witnesses such as PW 1, PW 2 and PW 4
depose that they heard that the accused assaulted his wife . They also claim that
they came to know about such incident from other persons. However, those persons
were not made witnesses in the case in hand which only make the evidence of
those witnesses that they heard victim being assaulted by the accused person only
a hearsay one no reliance can be placed.
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Crl. A.(J). No. 60 of 2011
Though in his evidence, PW 2 claims that one day, he saw the accused
assaulting his wife at market place and although he claims that he persuaded the
accused not to assault his wife in a public place and requested the parties to go
home, yet, he did not divulge such an important episode to the I/O while he was
being examined u/s 161 CrPC during the course of investigation. Omission to state
such a vital information to the I/O during investigation again make his evidence
doubtful since his evidence suffers from vice what is commonly called as
contradiction.
We have found that incident in question was reported to PW 1 and PW 2 by
some persons for which they rushed to the house of the accused person and found
their daughter lying dead in the house of the accused persons. However, persons
from whom they came to know about the incident was not identified by I/O during
investigation requiring this court to view the prosecution case with suspicion since
non identification and non examination of those persons requires this court to draw
a presumption as contemplated in Illustration 114 (g) of the Evidence Act.
Learned Addl. P.P., submits that the accused had absconded soon after the
alleged incident for which he could be arrested 2 (two) days after the incident under
consideration. However, such contention is not fully supported by evidence on
record since PW 1 found the accused in his house while PW 1 was still in the ill
fated household. Therefore, the contention that the accused has absconded soon
after the incident is found not wholly reliable.
Our forgoing discussion reveals the following circumstances
(i) The victim was the wife of accused person. (ii) she was married by
the accused person few months before her death. (iii) she died on
18.08.2009, (iv) her death was unnatural, (v) she died in the house
of accused person, (vi) during the time under consideration accused
with his wife and his other family members lived in same household
and (vii) the accused was arrested during the course of investigation
although charge of accused absconding has not been proved as it is
found from our forgoing discussion.
31
Crl. A.(J). No. 60 of 2011
The forgoing circumstances though raised a serious doubt about the
complicity of accused person in the crime in question, yet, such doubt is not enough
to conclude conclusively that the accused and none else was the person responsible
for committing the crime in question as required under the law.
In this connection, it may be stated that there is a huge gap between the
proof and suspicion since suspicion cannot take place of proof. Unfortunately, in our
present case, the prosecution could not bridge the gap between suspicion and proof
requiring this court to hold that prosecution has not been able to prove the case
beyond all reasonable doubt.
We have already found that I/O has submitted charge sheet u/s 302/34 IPC
against the accused person and his father. Both the accused persons stood charged
of offence u/s 302/34 IPC. However, father of the present accused person was
acquitted by the Trial Court for want of evidence. The acquittal of father of the
present accused person, in the facts and circumstances, detailed here-in-before
clearly shows that judgment under challenge is susceptible to charge of un-
tenability which again further fortify the claim of accused person that he is innocent.
We have already found that the case in hand is a case which is based on
circumstantial evidence where prosecution is required to prove its case by
establishing a chain of event unbreakable anywhere leading to sole and lone
conclusion that accused and none else was the author of the crime in question.
Unfortunately, in view of our forgoing discussion prosecution could have
established a chain of events unbreakable anywhere although some very serious
suspicion about the role of the accused person in the crime in question but then
there is gulf of suspicion and unless the gulf is approached, prosecution cannot be
said to have proved the case beyond all reasonable doubt.
Resultantly, the judgment under challenge is found unsustainable in law and
same is quashed and set aside.
32
Crl. A.(J). No. 60 of 2011
Consequently, the present appellant is acquitted of offence u/s 302/34 IPC
and he is ordered to be released from jail if he not required in connection with any
other case.
Return the LCR.
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