Gauhati High Court
Hirendra Biswas vs The State Of Assam And Anr on 28 July, 2022
Author: N.K. Singh
Bench: N. Kotiswar Singh
Page No.# 1/19
GAHC010014812017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./53/2017
HIRENDRA BISWAS
S/O LATE MANORANJAN BISWAS, R/O VILL. PAROKUMA, P.O. KHETRI, P.S.
KHETRI, DIST. KAMRUP M, ASSAM, PIN 782403
VERSUS
THE STATE OF ASSAM and ANR
2:SHRI BIPIN BAROI
S/O LATE SUBHASH CH. BAROI
R/O VILL. DIGARUPAR
P.S. KHETRI
DIST. KAMRUP M
ASSAM
PINCODE-78240
BEFORE
HON'BLE MR.JUSTICE N. KOTISWAR SINGH
HON'BLE MR.JUSTICE ARUN DEV CHOUDHURY
For the Appellants : Mr. S.D. Purkayastha Amicus Curiae
For the Respondents : Ms. S. Jahan Addl. P.P., Assam
Mr. A. Paul Advocate
Page No.# 2/19
Date of hearing & Judgement : 28.07.2022
JUDGMENT AND ORDER (Oral)
(N.K. Singh, J)
Heard Mr. S.D. Purkayastha, learned amicus curiae for the appellant. Also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam, for the respondent no.1 and Mr. A. Paul, learned counsel for the respondent no.2 (informant).
2. The present appeal has been preferred by the appellant, namely, Hirendra Biswas, against the judgment and order dated 22.12.2016 passed by the learned Sessions Judge, Kamrup(M), Guwahati in Sessions Case No. 404 of 2012. By the judgment and order dated 22.12.2016, the learned Sessions Judge, Kamrup(M) has convicted the appellant under Sections 302 of the Indian Penal Code (IPC, in short) and sentenced him to suffer imprisonment for life and to pay a fine of Rs. 10,000/-, in default, to suffer simple imprisonment for 6 (six) months.
3. The conviction is based on circumstantial evidence, inasmuch as, there is no eye witness to the actual incident of death of the deceased.
4. As per the prosecution, an FIR was lodged on 17.08.2006 by one Bipin Ch. Baroi, the brother of the deceased and brother-in-law of the present appellant, stating that at about 6.30 P.M. the landlord of the deceased had informed him that the tenanted house of his sister, namely, Rupa Barhoi Biswas, had been under lock and key for the last 2 (two) days and a foul odour was emanating from that room. Thereupon, he went to the police station and Page No.# 3/19 informed the police about it. Later, the police accompanied by a Magistrate arrived there and entered the room by breaking the lock, whereupon he found his younger sister lying dead on the bed with injuries on her person. It was also mentioned that his brother-in-law Hirendra Biswas, the appellant herein, and his 1 (one) year old nephew were not found at the place of occurrence. Based on the aforesaid FIR, one police case was registered being Khetri P.S. case No.136/06 under Section 302 IPC. Naturally, the investigation ensured and on completion of the investigation, as there was prima facie materials against the appellant, he was charge- sheeted and accordingly, the charge was framed against the appellant before the Court of Sessions Judge, Kamrup (M).
5. To prove the charge, the prosecution examined as many as 10 (ten) witnesses. The defence denied the allegations and took the plea of alibi by stating that he was not present at the place of occurrence, in support of which he also examined one witness.
6. The Trial Court, however, after considering the evidences on record held that there are sufficient incriminating materials to sustain the charge and accordingly, convicted the appellant under Section 302 IPC as mentioned above.
7. Mr. S.D. Purkayastha, learned amicus curiae for the appellant submits that since it is clear that there was no eye witness and the conviction was based on the circumstantial evidences, it was incumbent upon the prosecution to prove the foundational facts before the appellant was called upon to explain his conduct. He submits that a perusal of the evidence on record and judgment dated 22.12.2016 would clearly show that the prosecution has not been able to substantiate the funoundational facts beyond reasonable doubt. It has been submitted that in this case, as the basis of the circumstantial evidences, the prosecution has Page No.# 4/19 relied upon a last-seen theory based on the evidence of one P.W.2, who was the neighbor of the deceased. It has been submitted that apart from the said evidence, there is no other evidence of the appellant being seen last with the deceased. It has also been submitted that the evidence of the prosecution witnesses are not also consistent and as such, though there may be strong suspicion against the appellant, it remains doubtful. It is also on record that the appellant was not at the place of occurrence when the incident took place but was far away in Tinsukia at his cousin's residence as inpvited by his old aunt to see her. It has been submitted that it cannot be said that the prosecution has been able to prove all the circumstances which form the complete chain to implicate the appellant.
8. Accordingly, it has been submitted that apart from mere suspicion, there is no evidence on record. It has been submitted that the evidence of P.W.2, who had claimed to have seen the deceased last with the appellant, is also not reliable. It has been submitted that while the P.W. 2, who is the star witness, stated that he had seen the appellant with the deceased on 15.08.2006 about 4.35/5.00 P.M., another witness, P.W.4, stated that on 15.08.2006 he found the room occupied by the appellant closed and a foul odour was coming out. Thus, there is a variance in the date as to when the alleged offence occurred. From the statement of P.W. 2 it appears that the incident did not take place on 15.08.2006 but on the next date i.e. 16.08.2006. On the other hand, as per the evidence of P.W.4, the incident occurred on 15.08.2006. Thus, this variation would render the prosecution version unreliable. It has been submitted that apart from P.W.2, there is no other evidence which can support the prosecution case. As such, merely on the basis of the last seen theory, the appellant could not have been convicted. It has also been submitted that there is evidence on record that the house of the deceased and the appellant was accessible to others as the house could Page No.# 5/19 be entered from the rear door and if there is such a possibility, it cannot be said that the prosecution has been able to prove the charge against the appellant beyond reasonable doubt as the involvement of a third person cannot be ruled out. P.W.4 stated in his statement that there were 2 doors in the room occupied by the appellant.
9. To controvert the prosecution's last-seen theory, Mr. S.D. Purkayastha has relied on the decision of the Hon'ble Supreme Court passed in Ramreddy Rajesh Khanna Reddy vs. State of Andhra Pradesh (A.P.), (2006) 10 SCC 172, by drawing attention of this Court to the para nos.26 & 27 of the aforesaid judgment, which are reproduced herein below:
"26. It is now well-settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well-settled that suspicion, however, grave may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. [ Anil Kumar Singh v. State of Bihar, (2003) 9 SCC 67 and Reddy Sampath Kumar v. State of A.P., (2005) 7 SCC 603]
27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case courts should look for some corroboration."
10. Learned counsel for the appellant has further relied on para no.14 of the decision of the Hon'ble Supreme Court rendered in Digamber Vaishnav and Another vs. State of Chattisgarh, (2019) 4 SCC 522, wherein it was held as below:
Page No.# 6/19 "14. One of the fundamental principles of criminal jurisprudence is undeniably that the burden of proof squarely rests on the prosecution and that the general burden never shifts. There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. The onus of the prosecution cannot be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate the accused nor falsity of defence could take the place of proof which the prosecution has to establish in order to succeed, though a false plea by the defence at best, be considered as an additional circumstance, if other circumstances unfailingly point to the guilt."
11. On the other hand Ms. B. Bhuyan, learned Senior Counsel as well as Additional Public Prosecutor, Assam, has submitted that as regards the last-seen theory that the deceased was seen last with the appellant on 15.08.2006 by P.W.2, there is clear evidence to the effect that the next date, the room was found under the lock and key and on the next date on 17.08.2006 he smelled foul odour was coming from the house of the appellant and it was under lock and key and accordingly, he informed the owner of the house about the same. P.W.2 is the immediate neighbour of the appellant and as such, the evidence of the P.W.2 who had seen the appellant last with the deceased on 15.08.2006 and testfieid about the incident on the subsequent days could not be disbelieved.
12. Under the circumstances, it is clearly established that the appellant was last seen with the deceased. If that is so, the appellant had an explanation to offer but he failed to provide any convincing explanation apart from merely stating that he had gone to his cousin's house on the next date. It has been submitted that the appellant also did not explain why he took his 1 (one) year old breast feeding baby, who was dependent on his mother, without taking the mother. It has been submitted that the appellant never made any attempt to find the whereabouts of his wife after he left for Tinsukia from his immediate neighborhood as Page No.# 7/19 mentioned above. It has been submitted that his conduct was not normal and that it is itself an incriminating factor. It has also been submitted that the question of any other person entering into the place of occurrence does not arise, inasmuch as, the room was under lock and key which has been testified by P.W.2. It has also been submitted that P.W.4 also mentioned in his deposition that the police came and opened the door of the room and then the dead body of the deceased was found inside the tenanted room. P.W.1 also stated that the police along with a Magistrate came to the place of occurrence and opened the door of the house. P.W.2 also mentioned that after coming to the place of occurrence, since the room was locked, the police removed the tin sheet from the roof of the house and then it was seen that the deceased was lying on the bed and thereafter, by breaking the door of the house, the police entered the room. The aforesaid evidence, therefore, clearly established the fact that the room was not accessible otherwise, apart from by breaking the door or by taking out the tin sheet as mentioned above. Under such circumstances, if there was no possibility of any other third person entering the place of occurrence i.e. the room of the deceased, certainly the finger of guilt will pint to the appellant only.
13. It was also submitted that the time gap between the death and the discovery of the death body was very short which rules out the possibility of any other third person committing the offence. It has been submitted that the postmortem report dated 17.06.2006 clearly shows that the death occurred three to five days before the postmortem which corresponds to the time of death which is suspected to be during 15.08.2006 and 16.08.2006 and during this time the appellant had left for Tinsukia.
14. Under the circumstances, it has been submitted that the findings by the Trial Court as reflected in para-23 and 24 do not suffer from any infirmity and as such, the conviction of the Page No.# 8/19 Trial Court be upheld.
15. Mr. A. Paul, learned counsel for the respondent no.2, the informant and the brother of the deceased, submits that it is clear from the evidence that the appellant was seen last with the deceased and the room where the deceased was staying not accessible to a third person as clearly evident from the evidences discussed above, because of which the lock of the door had to be broken upon and there is nothing to suggest that the appellant had informed any other relative about the deceased or his neighbourhood when he left for Tinsukia, and in fact, the appellant had absconded from the place and was taking shelter in the residence of his cousin which clearly points towards his guilty mind. Under the circumstances, Mr. A. Paul submits that he fully endorses the submission advanced by the learned Additional P.P.
16. In order to appreciate the rival contentions of the parties, we have also gone through the records.
17. We would briefly refer to the silent features of the evidences which have been brought on record on the basis of which the conviction has been based.
18. P.W.1 is one Bipin Ch. Baroi, who is the elder brother of the deceased Rupa Baroi Biswas and brother-in-law of the appellant. He stated that the appellant had married his sister about 1 (one) year prior to the incident which occurred in the year 2006 and the appellant used to stay in the rented house in Sialkhati along with his sister and he used to occasionally visit the house of the accused and the deceased. He stated that the appellant ran an Ayurvedic Pharmacy in his tenanted house itself and at the relevant time, the appellant had a 1 (one) year old son. He also stated that there used to be occasional quarrels between the appellant and his younger sister over the issue of money. He further stated that it was the relatives of the deceased who had supported the appellant financially at the time of Page No.# 9/19 opening the Ayurvedic Pharmacy. He stated that upon being informed by the owner (P.W.3) of the rented house that the rented premise is under the lock and key and foul odour was emanating from the house, he informed the police and accordingly, the police accompanied by a Magistrate came to the place and opened the door of the house whereupon, he found his younger sister lying dead on the bed inside the mosquito net. He also stated that that at the relevant time neither the appellant nor the child was present at the place of occurrence and the appellant was missing since after the incident occurred and accordingly, he lodged the FIR.
In the cross-examination, P.W.1 mentioned about the appellant making a phone call to the PCO situated nearby the place of occurrence to inquire about his family from which the police came to know about the location of the accused. He denied the suggestion that there had been an altercation of the deceased with the appellant over the matter of the deceased's frequent visit to her parental house and being angry over it.
19. P.W.2, one Sri Bishnu Kr. Dey is the star witness, who is the neighbor of the appellant and deceased and was running a Steel Almirah Factory in a tenanted house which belongs to the same owner who had rented to the the appellant. He stated that the appellant was running the Ayurvedic Pharmacy by partitioning room of the house that he had taken on rent by erecting a temporary partition therein.
20. P.W.2 also stated that at around 4.30/5.00 P.M. on 15.08.2006 when he went to his shop he saw his wife (the deceased) and appellant in their house. He also saw the deceased taking away clothes from outside. He stated that on the next morning, when he went to open his shop, he found their house under lock and key. He stated that the deceased and the appellant left their house under lock and key on earlier occasions and as such, he did not Page No.# 10/19 suspect anything. However, on the next date, i.e. on 17.08.2006 when he smelled foul odour coming out from the house of the appellant, which was still under the lock and key, he informed the owner of the house and thereafter, the owner of the house came there and many other people also assembled there. Police also came along with a Magistrate there. Thereafter, the police removed a tin sheet from the roof of the house and the wife of the appellant was seen lying on the bed inside a mosquito net. Later on, the door of the house was opened and they could identify the dead body lying on the bed. He also stated that he did not see the appellant since 15.08.2006 after he saw him last on 15.08.2006. He stated that except the wife of the appellant and their child and the appellant, he did not see any other person near the pharmacy of the appellant on 15.8.2006.
In the cross-examination, P.W.2 stated that his shop and appellant's shop are in the same campus and there was no boundary wall as there were shops around. In the cross- examination, he stated that a person can enter the house of the appellant through the rear door of that house.
21. One Sri Narayan Bhakata was examined as P.W.3, who was the owner of the house who had rented the house to the appellant. He stated that the appellant used to stay there along with his wife and a child, and the appellant was running an Ayurvedic Pharmacy.
22. He stated that at about 8 A.M. on 17.08.2006, he got the information that foul odour was emanating from the shop in which the appellant used to stay and the house was under
lock and key. Thereafter, he came to the place and informed the police. He also stated that in the house the dead body of the wife of the appellant was lying on the bed inside a mosquito net. However, he did not see the appellant.
In the cross-examination he also mentioned that the room the appellant had taken on rent, Page No.# 11/19 has front and rear doors and he also had rented another shop to Bishnu Kr. Dey who was examined as P.W.2.
23. P.W.4, Md. Ahok Ali, is an employee of the P.W.2, who knew both the appellant and the deceased. He also stated that the appellant was running an Ayurvedic Shop and was staying with his wife and their 1 (one) year old child. He stated that on 15.08.2006 when he came to the factory, he found the appellant's room closed and bad odour was coming out from the said room. Then his employer informed the owner of the shop about the same and the owner thereafter, informed the police and after the police came there, the police opened the door of the house by breaking the same and there they found the dead body of the deceased.
In the cross-examination he stated that there were two doors in the room occupied by the appellant.
24. P.W.5 is Dr. Nayanmoni Pathak who performed the post-mortem examination on the dead body, and as per the post-mortem report, following injuries and conditions were observed in the body of the deceased:
"A female dead-body of average built, dressed in a yellow printed night, green petticoat, white and red coloured bangles seen over both the wrists. Body swollen. Greenish discolouration of body seen at places. Peeling of skin seen at places. Tongue protracted. Scalp hair comes out easily on pulling and partially missing. Rigor mortis passed off.
External appearance:- Bruise position size and nature - no external injury detected, mark of ligature on neck dissection, etc. not detected, Walls-greenish discolouration seen, Peritoneum-decomposed, Mouth pharynx, oesophagus- Mucosa of all are decomposed, Stomach and its contents-decomposed, Small intestine and its contents-decomposed, Large intestine and its contents- decomposed, Ribs/cartilage-Fracture and dislocation of ribs 4, 5, 6, 7 & 8 th on right side. Pleasure- lacerated on right side, Laryax sand trachere - Mucosa decomposed, Right lung-Lacerated, Left lung-decomposed, Pericar-decomposed, Heart-decomposed, Vessels-decomposed, Disease or deformity-not detected, Scalp-decomposed, Skull vertebrae-healthy, membrane-decomposed, Brain and Spinal Cord- Brain liquefied, Spinal Cord- not examined, Liver- Lacerated, Spleen- decomposed, Kidneys-decomposed, Bladder - decomposed, Uterus- healthy, Page No.# 12/19 empty."
The doctor gave the opinion that the death was due to haemorrhage and shock as a result of injuries sustained and all injuries were antemortem in nature, and caused by blunt force impact. He also stated that viscera was sent to Forensic Science Laboratory for chemical analysis.
The said post-mortem examination was conducted on 17.08.2016 and the doctor stated that death occurred approximately 3 to 5 days before when the dead body was brought for post- mortem. He also stated that injuries described in post-mortem report are sufficient to cause death in the ordinary course of nature.
In the cross-examination, it has been stated that the rib injury caused on the dead-body could be caused by falling from a considerable height on a hard substance. He also stated that he did not detect any external injury.
25. P.W.6, namely, Pranab Kumar Deka, P.W.7, Md. Bdrul Islam, and P.W.8, Sri Moshed Ali Ahmed, are police witnesses who were involved in the investigation of the case. However, P.W.8, ASI of Police of Sonapur Out Post, was the one who conducted most of the investigation. He described in his deposition about the various steps taken during the investigation of the case. He stated that he received the information about the occurrence from one Amiya Barua. He also mentioned that the dead body of a female was found lying inside the Pharmacy. The lock of the Pharmacy was broken and at that time the husband of the deceased was not present.
In the cross-examination, P.W.8 stated that the appellant had made a phone call near to the place of the occurrence and the owner of the PCO informed him about the appellant. He also mentioned that one shop keeper (P.W.2) having grill shop adjacent to the Ayurvedic Pharmacy of the appellant told him during the investigation that he saw the appellant in the Page No.# 13/19 Pharmacy along with his wife and their child.
In the cross-examination P.W.8 stated that none of the witnesses had seen the accused locking the house, where the dead body was found. He stated that the owner of the PCO told him (P.W.8) that the deceased was inquiring about his wife over the phone.
26. P.W.9, Sri Bidyut Bikash Bhagabati, is the Circle Officer, Sonapur Revenue Circle, who had conducted the inquest on the dead body.
27. P.W.10, Sri Rajkumar Proydut Gohain is the Joint Director, Forensic Science Laboratory, Kahilipara, who submitted the forensic report to the effect that the sample sent to him did not test positive for any poison.
Thus, the death of the appellant's wife by consuming poison does not arise.
28. We also refer to the statement made by the appellant recorded under Section 313 of the Cr.P.C. In that statement what we have noted is that while he has not denied his relationship with the deceased as his wife, he has denied all other allegations made against him by saying that he does not know these incriminating facts. He claims himself to be innocent and stated that on 16.08.2006 he along with his son went to the house of his elder brother Nakul Biswas's house at Dhola, Tinsukia. He also stated that the front side of the house was used as a Pharmacy and they used to enter the house from the back side. He also examined one witness, namely, Nakulmoni Sarkar as the D.W.1 who is his cousin in whose house he went to stay.
29. D.W.1, Sri Nakulmoni Sarkar, stated that he resides at Tinsukia under Dhola P.S. and in the year 2006 due to old age of his mother, she wanted to see the appellant who is his cousin brother and accordingly, on 15.08.2006 he called the appellant to come to his house and the appellant came to his house on 16.08.2006 and he stayed in his house for 2 to 3 days with Page No.# 14/19 his family and on 19.08.2006, the Police from Dhola P.S. arrested his cousin from his house at about 7 am, but he was not informed about the reason for the arrest of the appellant. He also stated that at that time the appellant was accompanied by his 1 (one) year old son. He also stated that on 18.08.2006, the appellant telephoned his wife but she did not pick up the phone.
In the cross-examination, he stated that at the time of the incident the appellant's son was a breast feeding baby.
30. Having considered the evidence on record, as discussed above, what we have noted is that P.W.2, Bishnu Kumar Dey, had clearly seen the appellant in the evening on 15.08.2006 along with the deceased wife and their child in the house. He also saw the deceased wife of the appellant taking away clothes from outside. This evidence, therefore, shows that the appellant was with the deceased on 15.08.2006. This evidence also shows that on the next morning, i.e. on 16.08.2006 when he went to open the shop, he found the house of the appellant under the lock and key. If the house of the accused appellant was under lock and key on the next morning, it means that there was no living person inside the room, otherwise the house would not have been under the lock and key. His evidence also shows that on the next date, i.e. on 17.08.2006 he smelled foul odour coming out of the house. If that is so, the death must have occurred sometime before, inasmuch, as foul smell would not emanate from a dead body immediately after death. Therefore, one can draw the clear inference that if death occurred in the same house it must have occurred after the evening of 15.08.2006 and certainly prior to 17.08.2006 and in all probability between 15.08.2006 and 16.08.2006 which also appears to have been corroborated by the medical evidence in terms of the post-mortem report and the evidence of P.W.5, the doctor who performed the post-mortem.
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31. If we consider the evidence of P.W.2, who stated that he saw the appellant on 15.08.2006 and as per the appellant's statement, he left his place on 16.08.2006 to go to Tinsukia, then the appellant must have left the place in the evening of 15.08.2006 itself, as otherwise, he could not have reached Tinsukia on 16.08.2006 as it would take several hours to reach Tinsukia, thus, clearly indicating that the appellant was very much in the house till late evening of 15.08.2006. The appellant in his statement made under Section 313 Cr.P.C. stated that on 16.08.2006 he along with his son went to his brother's house at Tinsukia. If the version of the appellant is to be believed that his wife was still alive when he left for Tinsukia on 15.08.2006 and reached Tinsukia on 16.08.2006, it would indicate that his wife was alive as otherwise, he would not have left his house if his wife was dead. On the contrary, there is medical evidence to prove that his wife died 3 to 5 days before 17.08.2006, in which event, the death occurred before 15.08.2006 in which event it was not possible for the appellant to leave the house if his wife was already killed by someone else. If the wife of the deceased was already dead by 15.08.2006 and if he knowingly left, then certainly, it amounts to hiding certain facts which is within the special knowledge of the appellant. If the appellant is considered to be innocent, it would not be possible that he would leave his house, the place of occurrence while his wife was already dead. If he found his wife dead, he would have raised hue and cry or alerted his neighbourhood. The fact remains that he did not alert the neighborhood of any untoward incident. The medical evidence clearly shows that the deceased wife had died 3 to 5 days before 17.08.2006 which clearly indicates that he was hiding this fact that his wife was already dead. The evidence of P.W.2 is also important. When he saw the house of the appellant on the next date of 16.08.2006, it was found under lock and key. If his wife was really alive at the time when the appellant left his house, we would Page No.# 16/19 not expect his wife to remain under lock and key when P.W.2, who is an uninterested witness, saw the house of the appellant on the next day in the morning of 16.08.2006. The fact that P.W.2 had seen the house of the appellant under lock and key in the morning of 16.08.2006 indicates that there was no living person inside the room. Therefore, there is a clear inference that on 16.08.2006 morning there was no living person residing in the house of the appellant. There is clear evidence on record that the room of the appellant was locked from outside, inasmuch as, the witnesses who had visited the place of occurrence had testified to that effect. Of course, an endeavour was made by the appellant that the room of the appellant had two doors and as such, one could enter to the room from the rear door also. But there is nothing on the record anywhere that the rear door was open. In fact, the possibility of the rear door being opened is also ruled out for the reason that when P.W.2 went and saw the room, it was locked and foul smell was coming out from the room and if the other door of the room was opened on the rear he would have noted the same. Assuming that it was not noticed, when the police came and people gathered, the police must have started their investigation and naturally they would have looked for the place of occurrence properly from all directions and if there was any rear door of the room which was found open, there was no reason for police to try to look into the room by taking the tin sheet. There was also no reason why the police broke the lock of the door if the room was already accessible from the rear door. Therefore, even if, there was another door in the rear of the room, it is clearly evident that the same was not open and the room could be accessed only by breaking the door lock. It may be also mentioned that the appellant had never taken the plea that the back door was open and as such, we are satisfied as far as the factum of the room being inaccessible is concerned. It is clearly established that the room could not have been Page No.# 17/19 accessed by any other person as it was under lock and key. Under the circumstances, the presence of any other person or entry of any third person into the house other than the appellant can be ruled out without any doubt. If that is so, it is conclusively established that it was only the appellant who had access to the room in which the appellant's wife was found dead and it is also established that the death of the deceased had occurred in the evening of 15.08.2006 but before the morning of 16.08.2006 and the appellant had left for Tinsukia in the evening of 15.08.2006 and reached Tinsukia on 16.08.2006, in which event when he left the house, the deceased was already dead. If the appellant had left the house when the deceased was already dead, the only inference can be drawn is that the appellant was responsible for the death of the deceased. There is no evidence to suggest that the death was caused due to committing of suicide by consuming poison which is supported by the report of the Forensic Laboratory. P.W.10, who conducted the forensic test on the samples of parts of viscera of the deceased had stated that no poison was found in the body of the deceased.
32. The appellant has also failed to explain the circumstances under which he had left his wife by taking his one year old breast feeding child, inasmuch as, in his defence he had tried to give a totally different explanation which could not be established and points the guilt of the appellant.
33. D.W. 1, Sri Nakulmoni Sarkar, his cousin stated that on 18.08.2006, the appellant telephoned his wife but she did not pick up the phone. We fail to understand why the appellant did not try to contact her when he was with the breastfeeding child and arrived in Tinsukia two days prior to 18.08.006. The appellant also did not try to contact the landlord or the others in the neighbourhood when his wife did not pick up the phone call and alleged by Page No.# 18/19 the appellant. The aforesaid version of the D.W.1 does not appear to be natural at all considering the fact that the appellant was with the minor child.
34. Therefore, we are of the view that the conclusion arrived at by the learned Trial Court does not suffer from any infirmity and accordingly, for the reasons discussed above, we do not find any merit in the present case and accordingly, the same is dismissed.
35. From the records it appears that no direction has been issued by the Trial Court towards payment of compensation to the dependent of the victim or next to kin of the victim as contemplated under Section 357A Cr.P.C.
36. Mr. A. Paul, learned counsel for the informant, submits that the child of the deceased is under the care and custody of the informant, Bipin Ch. Baroi (maternal uncle of the child).
37. Under the circumstances, we direct that the child of the deceased and the appellant, who is presently under the care and custody of Bipin Ch. Baroi, be given the compensation as per the scheme prepared by the State of Assam, that is, the Assam Victim Compensation Scheme, 2012 as notified on 05.03.2016 which was revised on 01.02.2019. The amount of compensation is given to the victim depending on the nature of the injury received or caused and the quantum of compensation has been revised from time to time, and the last revision was made by issuing a notification on 01.02.2019. Under the aforesaid scheme, the quantum of compensation for death has been fixed at Rs.5,00,000/- (Rupees Five Lakhs) only, both minimum and maximum. In other words, in respect of death caused, the next kin of the victim would be entitled to Rs.5,00,000/- (Rupees Five Lakhs) only.
38. Accordingly, we direct the State Government to release the sum of Rs.5,00,000/- (Rupees Five Lakhs) only to the child of the deceased, who is stated to be under the care and protection of Bipin Ch. Baroi, the respondent no.2/informant.
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39. In this regard, Karmup(M) District Legal Service Authority will do the needful and render assistance to the State Authorities so that the child of the deceased gets the compensation under the aforesaid scheme.
40. It is made clear that the aforesaid amount of Rs.5,00,000/- (Rupees Five Lakhs) only would be released in favour of the child in a scheduled bank after proper verification of his identity and the amount shall be kept in a fixed deposit with the said scheduled bank for a period of 5 (five) years in the name of the child. The aforesaid exercise will be carried out by the State in association with the Karmup(M) District Legal Service Authority and the compensation be given at the earliest and preferably within a period of 3 (three) months from the date of receipt of a copy of this order.
A copy of this order be furnished to the Member Secretary, Assam State Legal Services Authority as well as the Secretary, Karmup(M) District Legal Service Authority to assist the State authorities in this regard.
41. LCR be sent back forthwith to the concerned Court.
42. Mr. S.D. Purkayastha, learned amicus curiae, who has ably assisted this Court in conducting this appeal, may be given the honorarium at the rate fixed as per rules.
JUDGE JUDGE Comparing Assistant