Gauhati High Court
Page No.# 1/18 vs The State Of Assam on 19 December, 2025
Author: M. Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/18
GAHC010184742022
2025:GAU-
AS:17665-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/100/2022
SULEMAN BARBHAIYA
LAKHIMPUR, ASSAM.
VERSUS
THE STATE OF ASSAM
REP. BY PP, ASSAM.
Advocates for the appellant : Mr. L.R. Mazumdar, Amicus Curiae.
Advocates for the respondents : Mr. R.R. Kaushik, APP, Assam.
:::BEFORE:::
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA HON'BLE MR. JUSTICE N. UNNI KRISHNAN NAIR Date on which judgment is reserved : 15.12.2025 Date of pronouncement of judgment : 19/12/2025 Whether the pronouncement is of the : No. operative part of the judgment ?
Whether the full judgment has been : Yes pronounced?
Page No.# 2/18 JUDGMENT & ORDER (CAV) (M. Zothankhuma, J)
1. Heard Mr. L.R. Mazumdar, learned Amicus Curiae, appearing for the appellant. Also heard Mr. R.R. Kaushik, learned Additional Public Prosecutor, Assam for the State respondent.
2. This appeal has been filed against the impugned judgement dated 10/06/2022 passed by the Court of Learned Sessions Judge, Lakhimpur, North Lakhimpur, in Sessions Case No. 140(NL)/2019, by which the appellant has been convicted under section 302 IPC for killing his wife. The sentence order dated 13/06/2022, by which the appellant has been sentenced to undergo rigorous imprisonment for life with a fine of Rs. 1,000/-, in default, rigorous imprisonment for one month, has also been put to challenge.
3. The facts of the case, in brief, is that an FIR dated 08/05/2019 was submitted by the Prosecution Witness-3 (PW-3), who is the mother of the appellant, to the effect that her son (appellant) had always been creating disturbance by assaulting her and her daughter-in-law (deceased) for about one month, under the influence of Alcohol and Ganja. On 08/05/2019, at around 10 a.m., the appellant confined his wife (daughter-in-law) in the house and assaulted her with a wooden batten, causing grievous injury on her entire body. Her daughter-in-law was taken to Laluk Hospital by the local people. However, as her injuries were grievous in nature and her condition was very critical, she was sent to North Lakhimpur Civil Hospital for better treatment. However, her daughter-in-law died in North Lakhimpur Civil Hospital at about 4-30 p.m.
4. Pursuant to the FIR, Laluk P.S. Case No.173/2019 under Section 302 IPC was registered.
5. PW-10 was made the Investigating Officer (IO) and after investigation of the case, PW-10 filed a charge sheet, having found a prima facie case under section 302 IPC against the appellant.
6. The learned Trial Court framed charge under section 302 IPC, to which the appellant pleaded not guilty and claimed to be tried. The learned Trial Court examined 11 Prosecution Witnesses and after examination of the appellant under section 313 Cr.P.C., the learned Trial Page No.# 3/18 Court came to a finding that the appellant had killed his wife.
7. The learned Amicus Curiae for the appellant submits that there are no eye witnesses to prove that the appellant had killed his wife. He also submits that the evidence of the daughter of the appellant and the deceased, i.e. PW-4, who was studying in Class-IV, does not show that PW-4 had witnessed the appellant killing his wife. He submits that even if it is assumed that the appellant had killed his wife, there was no intention on the part of the appellant to kill his wife, inasmuch as, they were drunk and in terms of the decision of the Supreme Court in the case of Basdev Vs. The State of Pepsu [AIR 1956 SC 488], intention has to be gathered from the attending general circumstances of the case, paying due regard to the degree of intoxication. He thus submits that if the appellant is to be considered to be fully intoxicated, intention to kill may not be there. Learned Amicus Curiae for the appellant further submits that there is only a presumption and suspicion that the appellant had killed the deceased. However, suspicion cannot take the place of proof. In this regard, he has relied upon the judgement of the Supreme Court in the case of Sujit Biswas Vs. State of Assam [(2013) 12 SCC 406].
8. Mr. R.R. Kaushik, learned APP, Assam, on the other hand, submits that the appellant and the deceased were last seen together and that their daughter had seen them fighting.
Thereafter, the deceased had been seen in an injured condition. As such, the evidence of PW-4 is a relevant fact forming part of the circumstantial evidence that the appellant had beaten up his wife, which led to her death. Further, under Section 106 of the Evidence Act, the burden of proving as to how the deceased had died was especially within the knowledge of the appellant, which the appellant failed to discharge. As the injuries sustained by the deceased on all parts of her body, could not have occurred by a fall to the floor, the burden of proving the cause of death of the deceased by the appellant had not been made by the appellant. The circumstantial evidence thus formed a complete chain, proving the appellant had killed his wife.
9. We have heard the learned counsels for the parties.
10. The evidence of PW-1 is to the effect that he did not know as to how the deceased had died. However, the appellant and the deceased used to fight almost every day after consuming alcohol. He also stated that he heard that the appellant had killed the deceased.
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11. The evidence of PW-2 is to the effect that he did not know how the deceased died. However, the appellant used to fight every day in his house. He also stated that he had gone to the house of the appellant on being called by the Police and he saw the deceased was grievously injured and almost about to die. He then carried the victim to the Police vehicle, who took the victim to the hospital.
12. The evidence of PW-3, who is the mother of the appellant, is to the effect that she had lodged the present case against her son. PW-3 stated that the appellant fought frequently with his wife after consuming alcohol. He also used to assault his wife. When she received information that the deceased was injured, she suspected that the appellant may have caused the injury to the injured after consuming alcohol. The injured (deceased) was taken to hospital where she died. She submitted an FIR in the Police Station. She further stated that she did not witness the fight between the appellant and the deceased. However, she heard from the people that there was a fight between her son and his wife. She did not deny the suggestion that the deceased sustained injuries because she had fallen down.
13. The evidence of PW-4, who was 10 years of age when she gave her evidence on 02/02/2021, is to the effect that both her parents used to consume alcohol. However, there was no serious fight between her parents. When they were about to fight, her grandmother reached their home. She did not know as to how her mother had died. In her cross examination, PW-4 stated that after consuming alcohol, both her parents used to fight frequently. After her parents fought, her mother used to go out of the house without informing her father. Sometimes, her mother used to go to Banderdewa without taking permission from her father. On returning home, she used to fight with her father. On the day of the incident, her parents reached home from Banderdewa in the morning. At that time, they were both inebriated. When her parents started fighting, she went out of house to inform her grandmother. When she returned home, she found her mother lying unconscious on the ground. PW-4 stated that she did not know how her mother became unconscious and that she did not see her father assaulting her mother. Further, the Police did not ask her about the incident. PW-4 denied the suggestion that her statement before the Magistrate was as tutored by the Police.
14. The evidence of PW-5 is to the effect that she heard that the appellant had assaulted his Page No.# 5/18 wife, which resulted in her death. The evidence of PW-6 & PW-7 is to the effect that they heard that the appellant had assaulted his wife due to which she had died. The evidence of PW-8 is that he did not know anything about the incident.
15. The evidence of PW-9 is to the effect that he did not know how the deceased had died. He had brought the deceased to Laluk Hospital while she was still alive. He also saw injuries on her head, chest and legs.
16. The evidence of PW-10, the I.O. is to the effect that PW-3 had lodged an FIR, which was registered as Laluk PS Case No. 173/2019. He prepared the sketch map of the place of occurrence and seized the piece of wood from the house of the appellant. He arrested the appellant from his house and recorded the statement of the witnesses. He also forwarded PW-4 to the Magistrate for recording her statement under section 164 Cr.P.C. On finding sufficient materials, he thereafter submitted the charge sheet.
17. The evidence of PW-11, the Medical & Health Officer-I of North Lakhimpur Civil Hospital, is to the effect that he conducted the post-mortem examination upon the body of the deceased on 09/05/2019 and he found the following:-
"I. EXTERNAL APPEARANCE:
1. Condition of subject stout emaciated, decomposed etc. Dead body of a female of average built, age approx. 30 years. Body was stout in condition. Eyes were closed and mouth open. Rigor mortise present.
2. Wounds-position and character: Multiple bruise present on the face and lower limb (both buttock, thigh, leg). One laceration present on right leg of size 1.0 cm x 0.5 cm.
3. Bruise-position, size and nature: Nil.
4. Mark of ligature on neck dissection etc.: Nil.
II. CRANIUM AND SPINAL CANAL:
1. Scalp, skull and vertebrae: Multiple swelling present on the scalp (left parental, right. temporal and occipital region). One fracture present on the occipital region.
2. Membrane: Healthy.
3. Brain and spinal cord: Haematoma present in the brain at the site of skull bone fracture. III. THORAX:
1. Walls, ribs and cartilages: Walls - multiple bruise present. Ribs and cartilage - healthy.
Page No.# 6/18
2. Pleurae: Healthy.
3. Larynx and tracheae: Healthy.
4. Right Lung and Left Lung: Healthy.
5. Pencardium Healthy
6. Heart Healthy and contain clotted blood.
7. Vessels: Healthy and contain clotted blood.
IV. ABDOMEN
1. Walls: Multiple bruise present
2. Peritoneum: Healthy
3. Mouth, pharynx and oesophagus: Healthy.
4. Stomach and its contents: Empty
5. Small intestine and its contents: Semi digested food present.
6. Large intestine and its contents: Faecal matter present.
7. Liver: Healthy
8. Spleen: Healthy.
9. Kidney: Healthy
10. Bladder: Healthy
11. Organs of generation, external and internal: Healthy. Non-gravid uterus.
V. MUSCLES, BONES AND JOINTS:
1. Injury: As described.
2. Disease or deformity: Nil.
3. Fracture: As described.
4. Dislocation: Nil.
MORE DETAILED DESCRIPTION OF INJURY OR DISEASE:
A healthy female dead body of average built with rigor mortise, had fracture occipital bone, haematoma at fracture area, brain matter injured at occipital area. Injuries are ante mortem in nature and caused by blunt object.
In my opinion, the deceased died of coma as a result of injury sustained into his vital organ like brain and the injury was ante mortem in nature.
Page No.# 7/18 Ext.P6/PW11 is the medico legal report. Ext.P6(1)/PW11 is my signature. Ext.P6(2)/PW11 is the signature of the Joint Director of Health Services, Lakhimpur, with which I am acquainted"
18. In his cross examination, PW-11 stated that the injuries were as follows :-
"The Injury No.1 may be caused as a result of friction against hard and blunt substance. The Injury No.2 i.e., laceration found on the body may be caused on the result of being struck against or/by hard substance. I have not mentioned what type of weapon. may have caused the injuries detected on the body of the victim on post mortem. No weapon of offence was shown to me during investigation or during recording my evidence. I have not specifically mentioned the time since death of the deceased. The injury sustained by the deceased was sufficient to cause death."
19. The statement of PW-4, who is the 10 year old child of the appellant and the deceased under section 164 Cr.P.C, is to the effect that her father often consumed liquor, then picked up a quarrel with her mother and assault her. On the day of the incident i.e. one Saturday morning, her father assaulted her mother after consuming liquor. Then her mother went to her Maternal grandmother's house accompanied by her elder sister and herself. On the following morning, her mother, elder sister and herself went to Arunachal Pradesh for working in a hotel. They started working in the hotel by staying in a rented house. Three days after their stay, her father suddenly appeared in the rented house and started quarreling with her mother. Thereafter, on that very day, her father took her and her mother from Arunachal Pradesh to the house of her maternal aunt at Fenkhati, Laluk. Her elder sister remained in Arunachal Pradesh. On reaching Banderdewa, her father took them to the house of a person from 'Daphla' community, where he forcibly made her mother consume alcohol. When her parents and herself returned from the maternal aunt's house at Laluk, her mother fell on the bed in an inebriated state. Then her father assaulted/dealt blows on her mother's head and other parts of her body with a lathi made of wood. Her mother screamed and asked her father not to assault her. As a result of the assault, her mother bled from several places and she became lifeless. Thereafter, she ran out of the house to go to the Police Station and met her grandmother on the way. Accompanied by her grandmother, they visited the Laluk Police Station and informed the Police about the incident. The Police immediately came to their maternal aunt's house in a vehicle and apprehended her father. The Police took her mother to Laluk Hospital and from there to Lakhimpur Hospital. However, her mother died at Lakhimpur Hospital, when the Doctor was administering stitches on the injuries sustained by her on her head.
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20. The appellant in his examination under section 313 Cr.P.C. has given an explanation that he did not kill his wife and that she had fallen down as she was drunk. The injuries sustained by his wife was due to the fall. The appellant also stated that he would not adduce any defence evidence.
21. The learned Trial Court found the appellant guilty of having killed his wife on the basis of circumstantial evidence, which according to the learned Trial Court formed a complete chain and convicted him under section 302 IPC.
22. As can be seen from the evidence adduced by the prosecution witnesses, there is no eye witness to the crime. Though the daughter of the appellant and the deceased i.e. PW-4, had stated in her statement under section 164 Cr.P.C. that her father had hit her mother with a lathi made of wood and thereafter inflicted injuries on her with a knife, the same is conspicuously missing in her evidence. It is settled law that statement made under section 164 Cr.P.C. can be used for corroborating or contradicting the testimony of the said witness. However, the statement of PW-4 under section 164 Cr.P.C, which has been exhibited as Ext.1, has not been proved by the Magistrate who had recorded the said statement. The Magistrate has also not been made a witness in this case.
23. The above being said, PW-4 is the only person who had seen the appellant and the deceased together and in terms of her testimony before the learned Trial Court, there was a fight between her parents, as stated in her cross examination. She thereafter went to inform her grandmother and on coming back, she found her mother lying unconscious on the ground. The above evidence coupled with the explanation given by the appellant in his examination under section 313 Cr.P.C, where he had stated that his wife had fallen as she was drunk and sustained injuries, goes to show that the appellant was with his wife at the time she sustained injuries.
24. The only issue to be decided is as to whether the appellant's wife had been injured by being assaulted by her husband or due to her falling on the ground. The evidence of the Doctor (PW-11) shows that there were multiple bruises on the face and lower limbs, involving both buttocks, thigh and leg of the deceased. Further there were multiple swellings on the scalp in the left parental, right temporal and occipital region. There was also a fracture present on the occipital region. There was Hematoma present in the brain at the side where there was a Page No.# 9/18 fracture in the skull bone. There were multiple bruises present in the walls of the Thorax of the deceased. The abdominal walls also had multiple bruises. The huge amount of bruises all over the body of the deceased cannot be due to the deceased falling to the ground, unless she had fallen and rolled over and over again. However, there is no evidence to that effect.
25. The assault took place inside a house and a fall inside the house could not have resulted in such a huge number of injuries. We are, thus, of the view that the appellant would have to explain the cause of the injuries on the deceased, which had resulted in her death, as he is the only person who was with the deceased prior to her being found unconscious.
26. In the case of Dhania Sabor Vs. State of Assam [Crl. A(J) 83/2023], this Court has held that Section 106 of the Indian Evidence Act, 1872, provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The ordinary rule that the onus lies on the prosecution in a criminal trial is not modified by Section 106, though Section 106 of the Evidence Act is an Exception to Section 101. Section 106 is designed to meet certain exceptional circumstances, in which it would be impossible or extremely difficult for the prosecution to establish facts, which are especially within the knowledge of an accused.
27. In the case of Shambu Nath Mehra v. State of Ajmer, reported in (1956) 1 SCC 337, the Supreme Court while considering the word "especially" employed in Section 106 of the Evidence Act, observed as under:
"11. .... The word "especially" stresses that it means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. R. (1936 SCC OnLine PC 20) and Stephen Seneviratne v. R. (1936 SCC OnLine PC 57)."
28. The Supreme Court thereafter relied upon the above case of Shambu Nath Mehra (supra) in Nagendra Sah vs. State of Bihar , reported in (2021) 10 SCC 725, wherein it held that Section 106 of the Evidence Act will apply to those cases Page No.# 10/18 where the prosecution has succeeded in establishing the facts, from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of the said other facts, the Court can always draw an appropriate inference.
29. In the case of Trimukh Maroti Kirkan v. State of Maharashtra, reported in (2006) 10 SCC 681, the Supreme Court held that if an offence takes place inside the privacy of a house it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused, if the strict principle of circumstantial evidence is insisted upon by the Courts. A Judge cannot preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. It further held that the law does not enjoin a duty on the prosecution to lead evidence of such character, which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. The Supreme Court thereafter held in paragraph 15 and 22 of the said judgment as follows :-
"15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.
22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."
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30. In the case of State of Madhya Pradesh vs. Balveer Singh , reported in (2025) SCC OnLine SC 390, the Supreme Court has held at paragraphs 86, 87, 89 & 90 as follows :
"86. Section 106 cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. This section cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence. It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden on the accused to show that no crime was committed. To infer the guilt of the accused from absence of reasonable explanation in a case where the other circumstances are not by themselves enough to call for his explanation is to relieve the prosecution of its legitimate burden. So, until a prima facie case is established by such evidence, the onus does not shift to the accused.
87. Section 106 obviously refers to cases where the guilt of the accused is established on the evidence produced by the prosecution unless the accused is able to prove some other facts especially within his knowledge which would render the evidence of the prosecution nugatory. If in such a situation, the accused offers an explanation which may be reasonably true in the proved circumstances, the accused gets the benefit of reasonable doubt though he may not be able to prove beyond reasonable doubt the truth of the explanation. But if the accused in such a case does not give any explanation at all or gives a false or unacceptable explanation, this by itself is a circumstance which may well turn the scale against him. In the language of Prof. Glanville Williams:
"All that the shifting of the evidential burden does at the final stage of the case is to allow the jury (court) to take into account the silence of the accused or the absence of satisfactory explanation appearing from his evidence."
89. But Section 106 has no application to cases where the fact in question, having regard to its nature, is such as to be capable of being known not only to the accused but also to others, if they happened to be present when it took place. The intention underlying the act or conduct of any individual is seldom a matter which can be conclusively established; it is indeed only known to the person in whose mind the intention is conceived. Therefore, if the prosecution has established that the character and circumstance of an act suggest that it was done with a particular intention, then under Illustration (a) to this section, it may be assumed that he had that intention, unless he proves the contrary.
90. A manifest distinction exists between the burden of proof and the burden of going forward with the evidence. Generally, the burden of proof upon any affirmative proposition necessary to be established as the foundation of an issue does not shift, but the burden of evidence or the burden of explanation may shift from one side to the other according to the testimony. Thus, if the prosecution has offered evidence, which if believed by the court, would convince them of the accused's guilt beyond a reasonable doubt, the accused, if in a position, should go forward with countervailing evidence, if he has such evidence. When facts are peculiarly within the knowledge of the accused, the burden is on him to present evidence of such facts, whether the proposition is an affirmative or negative one. He is not required to do so even though a prima facie case has been established, for the court must still find that he is guilty Page No.# 12/18 beyond a reasonable doubt before it can convict. However, the accused's failure to present evidence on his behalf may be regarded by the court as confirming the conclusion indicated by the evidence presented by the prosecution or as confirming presumptions which might arise therefrom. Although not legally required to produce evidence on his own behalf, the accused may therefore as a practical matter find it essential to go forward with proof. This does not alter the burden of proof resting upon the prosecution [see : Balvir Singh v. State of Uttarakhand [Balvir Singh v. State of Uttarakhand, (2023) 16 SCC 575] and Anees v. State (NCT of Delhi) [Anees v. State (NCT of Delhi), (2024) 15 SCC 48 : 2024 SCC OnLine SC 757 :
2024 INSC 368]
31. In the case of Sharad Birdhichand Sarda Vs. State of Maharashtra [(1984) 4 SCC 116], the Supreme Court has laid down 5 golden principles which constitutes the basis for deciding a case on circumstantial evidence, wherein the facts so established should be consistent only with the hypothesis of the guilt of the accused and the circumstances should be of a conclusive nature, wherein they exclude every possible hypothesis except to the fact that the accused was guilty of the crime.
In the present case, the circumstantial evidence is consistent with the hypothesis of the guilt of the appellant and excludes any other possible hypothesis that the appellant was not guilty of the crime. As such, we are of the view that the circumstantial evidence and the evidence of PW-4, which we find to be trustworthy, all point to the guilt of the appellant.
32. In the case of Wajir Khan vs. State of Uttarakhand, [(2023) 11 SCR 39], the Supreme Court held that in a case based on circumstantial evidence where no eyewitness is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the accused offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete.
33. In the present case, we find that the appellant had not discharged his burden as to how his wife died, keeping in view the fact that the foundational facts that he had killed his wife has been made out by the prosecution. The fact that the appellant's daughter, PW-4, had seen them fighting and the fact that the appellant had been with his wife till they were discovered by PW- 4 and her grandmother, shows that the appellant had the knowledge as to how his wife had been Page No.# 13/18 injured. When the numerous injuries on the deceased cannot be explained away by the appellant, allegedly due to the deceased falling on the ground, there can be no other hypothesis except the fact that the appellant had caused the injuries on his wife with a blunt weapon, which resulted in her death. As such, we are of the view that the appellant was guilty of having killed his wife with a weapon. Further, a piece of wood had been seized by the Police, which appears to be the weapon. However, the same was not produced in the Court and exhibited.
34. The further issue to be decided is as to whether the action of the appellant in causing the death of his wife comes within any of the Exceptions under section 300 IPC, keeping in view the fact that the PW-4 had seen the appellant and his wife fighting before she had gone out to call her grandmother.
35. In the case of Basdev (Supra), the Supreme Court had while discussing section 86 IPC, held that it was no doubt true that while the first part of Section 86 IPC speaks of intent and knowledge, the latter part dealt only with knowledge and a certain element of doubt may possibly be felt by reason of this omission. If in voluntary drunkenness, knowledge is to be presumed in the same manner as if there was no drunkenness, what about those cases where mens rea is required. It held that so far as knowledge is concerned, the intoxicated man must be attributed to have the same knowledge, as if he was quite sober. But so far as intent or intention is concerned, the same must be gathered from the attending general circumstances of the case, paying due regard to the decree of intoxication. It further held that motive, intention and knowledge would have to be distinguished. Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act. In many cases, intention and knowledge merge with each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin, but it is not difficult to perceive that they connote different things. The Supreme Court thereafter held in the said case of Basdev (Supra) that though the accused therein was under the influence of alcohol, he was not so much under influence that his mind was obscured by drink and that there was incapacity in the accused therein to form the required intention. The operative portion of the judgement of the Supreme Court in Basdev (Supra) is reproduced herein below, as follows :-
Page No.# 14/18 "An appeal to the PEPSU High Court at Patiala proved unsuccessful. Special leave was granted by this Court limited to the question whether the offence committed by the petitioner fell under section 302 of the Indian Penal Code or section 304 of the Indian Penal Code having regard to the provisions of section 86 of the Indian Penal Code. Section 86 which was elaborately considered by the High Court runs in these terms:
"In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who doe& the act in a state of intoxication shall be liable to be dealt with as if he bad the same knowledge as he would have had if he bad not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will".
It is no doubt true that while the first part of the section speaks of intent or knowledge, the latter part deals only with knowledge and a certain element of doubt in interpretation may possibly be felt by reason of this omission. If in voluntary drunkenness knowledge is to be presumed in the same manner as if there was no drunkenness, what about those cases where mens rea is required. Are we at liberty to place in-tent on the same footing, and if so, why has the section omitted intent in its latter part? This is not the first time that the question comes up for consideration. It has been discussed at length in many decisions and the result may be briefly summarised as follows:-
So far as knowledge is Concerned, we must attribute to the intoxicated man the same knowledge as if he was quite sober. But so far as intent or intention is concerned, we must gather it from the attending general circumstances of the case paying due regard to the degree of intoxication. Was the man beside his mind altogether for the time being? If so it would not be possible to fix him with the requisite intention. But if he had not gone so deep in drinking, and from the facts it could be found that he knew what he was about, we can apply the rule that a man is presumed to intend the natural consequences of his act or acts. Of course, we have to distinguish between motive, intention and knowledge. Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act. In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they connote different things. Even in some English decisions, the three ideas are used interchangeably and this has led to a certain amount of confusion.
In the old English case, Rex v. Meakin(1) Baron Alderson referred to the nature of the instrument as an element to be taken in presuming the intention in these words:
"However, with regard to the intention, drunkenness may perhaps be adverted to according to the nature of the instrument used. If a man uses a stick, you would not infer a malicious intent so strongly against him, if drunk, when he made an intemperate use of it, as he would if be bad used a different kind of weapon; but where a dangerous instrument is used, which, if used, must produce grievous bodily harm, drunkenness can have no effect on the consideration of the malicious intent of the party."
In a charge of murdering a child levelled against a husband and wife who were both drunk at the time, Patteson J., observed in Regina v. Cruse and Mary his wife (1) "It appears that both these persons were drunk, and although drunkenness is no excuse for any crime whatever, yet it is often of very great importance in cases where it is a question of intention. A person may be so drunk as to be utterly unable to form any intention at all, and yet he may be guilty of very great violence."
Page No.# 15/18 Slightly different words but somewhat more illuminating were used by Coleridge J., in Reg. v. Monkhouse(2) "The inquiry as to intent is far less simple than that as to whether an act has been committed, because you cannot look into a man's mind to see what was passing there at any given time. What he intends can only be judged of by what he does or says, and if he says nothing, then his act alone must guide you to your decision. It is a general rule in criminal law, and one founded on common sense, that juries are to presume a man to do what is the natural con sequence of his act. The consequence is sometimes so apparent as to leave no doubt of the intention. A man could not put a pistol which he knew to be loaded to another's bead, and fire it off, without intending to kill him; but even there the state of mind of the party is most material to be considered. For instance, if such an act were done by a born idiot, the intent to kill could not be inferred from the act. Sol if the defendant is proved to have been intoxicated, the question becomes a more subtle one; but it is of the same kind, namely, was he rendered by intoxication entirely incapable of forming the intent charged?"
"Drunkenness is ordinarily neither a defence nor excuse for crime, and where it is available as a partial answer to a charge, it rests on the prisoner to prove it, and it is not enough that he was excited or rendered more irritable, unless the intoxication was such as to prevent his restraining himself from committing the act in question, or to take away from him the power of forming any specific intention. Such a state of drunkenness may no doubt exist".
A great authority on criminal law Stephen J., postulated the proposition in this manner in Beg. v. Doherty(1)-
"...... although you cannot take drunkenness as any excuse for crime, yet when the crime is such that the intention of the party committing it is one of its constituent elements, you may look at the fact that a man was in drink in considering whether he formed the intention necessary to constitute the crime".
We may next notice Rex v. Meade(2) where the question was whether there was any misdirection in his summing, up by Lord Coleridge, J. The summing up was in these words:
"In the first place, everyone is presumed to know the consequences of his acts. If he be insane, that knowledge is not presumed. Insanity is not pleaded here, but where it is part of the essence of a crime that a motive, a particular motive, shall exist in the mind of the man who does the act, the law declares this-that if the mind at that time is so obscured by drink, if the reason is dethroned and the man is incapable therefore of forming that intent, it justifies the reduction of the charge from murder to man- slaughter".
Darling, J., delivering the judgment of the Court of Criminal Appeal affirmed the correctness of the summing up but stated the rule in his own words as follows:
"A man is taken to intend the natural consequences of his acts. This presumption may be rebutted (1) in the case of a sober man, in many ways:
(1) [1887] 16 Cox C.C. 306.
(2) [1909] 1 K.B. 895, (2)it may also be rebutted in the case of a man who is drunk, by shewing his mind to have been so affected by the drink he had taken that he was incapable of knowing that what he was doing was dangerous, i.e., likely to inflict serious injury. If this be proved, the presumption that he intended to do grievous bodily harm is rebutted".
Finally, we have to notice the House of Lord's decision in Director of Public Prosecutions v. Beard(1). In this case a prisoner ravished a girl of 13 years of age, and in aid of the act of rape he placed his hand upon her mouth to stop her from screaming, at the same time pressing his thumb upon her throat with the result that she died of suffocation. Drunkenness was pleaded as a defence. Bailhache J. directed the jury that the defence of drunkenness Page No.# 16/18 could only prevail if the accused by reason of it did not know what he was doing or did not know that he was doing wrong. The jury brought in a verdict of murder and the man was sentenced to death. The Court of Criminal Appeal (Earl of Reading C.J., Lord Coleridge J., and Sankey, J.) quashed this conviction on the ground of misdirection following Rex v. Meade(2) which established that the presumption that a man intended the natural consequences of his acts might be rebutted in the case of drunkenness by showing that his mind was so affected by the drink that he bad taken that he was incapable of knowing that what he was doing was dangerous. The conviction was, therefore, reduced to manslaughter. The Crown preferred the appeal to the House of Lords and it was heard by a strong Bench consisting of Lord Chancellor, Lord Birkenhead, Earl of Reading, C.J., Viscount Haldane, Lord Denedin, Lord Atkinson, Lord Sumner, Lord Buckmaster, and Lord Phillimore. The Lord Chancellor delivered the judgment of the court. He examined the earlier authorities in a lengthy judgment and reached the conclusion that Rex v. Meade(2) stated the law rather too broadly, though on the facts there proved the decision was right. The position "that a person charged with a crime of violence may show, in order to rebut the presumption that he intended the natural consequences of his acts, that he was so drunk that he was incapable of knowing what he was doing was dangerous.................................. which is what is said in Meade's case, was not correct as a general proposition of law and their Lordships laid down three rules:
(1)That insanity, whether produced by drunkenness or otherwise, is a defence to the crime charged; (2) That evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent; (3)That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts.
The result of the authorities is summarised neatly and compendiously at page 63 of Russel on Crime, tenth edition, in the following words:
"There is a distinction, however, between the defence of insanity in the true sense caused by excessive drunkenness and the defence of drunkenness which produces a condition such that the drunken man's mind becomes incapable of forming a specific intention. If actual insanity in fact supervenes as the result of alcoholic excess it furnishes as complete an answer to a criminal charge as insanity induced by any other cause. But in cases falling short of insanity evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent, but evidence of drunkenness which falls short of proving such incapacity and merely establishes that the mind of the accused was so affected by drink that he more readily gave way to some violent passion does not rebut the presumption that a man intends the natural consequences of his act".
36. In the case of Sujit Biswas (Supra), the Supreme Court has held that suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved, and some that "will be proved".
37. In the present case, this Court will have to see as to whether there was any intention or motive or knowledge on the part of the appellant to have killed his wife, in terms of the Page No.# 17/18 judgement of the Supreme Court in Basdev (Supra). The evidence of PW-4 is reproduced herein below as follows :-
"Both my parents used to consume alcohol. There was no serious fight between both my parents and when they were about to fight, my grandmother reached home. I do not know how my mother died. I am the youngest. My elder sister is Eliza Borbhaiya and my eldest sister is Jakia. They were not present at the time of the incident. The police came and took my parents with them. The police brought me to the court and my statement was recorded in the court. Ext.1 is my statement and Ext.1(1), 1(2), 1(3), 1(4) and 1(5) are my signatures.
XXX My parents used to drink alcohol frequently. After consuming alcohol, both my parents used to fight frequently. When my parents used to fight, then my mother used to go out of the house without informing my father. Sometimes, my mother used to go to Banderdewa without taking permission of my father and she used to stay several days in Banderdewa, and after returning home, she used to fight with my father again. On the next day of the incident, my parents reached home from Banderdewa in the morning, and at that time, when they reached home, they were inebriated. We were at home at that time. When my parents started fighting, then I went out from the house to inform my grandmother. When I reached home, I found my mother lying unconscious on the ground. I do not know how my mother became unconscious. I did not see my father assaulting my mother. The police did not ask me about the incident.
It is not a fact that I gave my statement before the Magistrate as tutored by the police."
38. A reading of the testimony of PW-4 shows that PW-4's parents were fighting. However, this could also mean arguing. On the other hand, the evidence of PWs-1, 2 & 3 is to the effect that the appellant used to fight almost every day in his house after consuming alcohol. The evidence of PW-3, the grandmother, who stated that the appellant used to assault the deceased reinforces this fact. Further, a combined reading of the evidence of PW-3 and PW-4 shows that PW-3 was called by PW-4, as PW-4 saw her parents fighting. Thus, we find the hearsay evidence of PW-3 (informant), though not admissible, corroborates the evidence of PW-4. Thus, it appears that the appellant was habituated in arguing and causing physical violence on his wife, when he drank alcohol. In the evidence of PW-4, it is stated that when her parents reached home from Banderdewa in the morning, they were drunk. As she had gone out to call her grandmother due to the appellant and the deceased fighting, she did not see the actual assault made by the appellant on the deceased, which apparently led to the deceased becoming unconscious in the house. We are of the view that it was not possible that the appellant was Page No.# 18/18 intoxicated to a degree that he did not have the intention to kill his wife, but had the knowledge that his action would lead to the death of his wife, in view of the injuries inflicted all over the body of the deceased. Though the fact that the appellant was drunk along with his wife (deceased) at the relevant point of time is testified by PW-4, the degree of intoxication, so as to rule out intention to kill is not made out.
39. On considering the fact that the injuries on the deceased have been made on various parts of her body including vital parts, by a blunt force, we are unable to convince ourselves that any of the Exceptions of section 300 IPC are attracted to this case.
40. The injuries are too numerous for us to believe that the injuries have been caused to the deceased, due to her falling on the ground and that it was not on the basis of a weapon used by the appellant. Further, as the appellant has failed to discharge his burden, as to how the numerous injuries on his wife had appeared on her body, though he was the only person with her till she became unconscious, we find that the entire circumstantial evidence only points to the appellant being guilty of having caused the injuries on his wife, which led to her eventual death.
41. In view of the reasons stated herein above, we do not find any ground to interfere with the judgement of the learned Trial Court. The appeal is accordingly dismissed.
42. Send back the TCR.
43. In appreciation of the assistance rendered by the learned Amicus Curiae, his fee should be paid by the Assam State Legal Services Authority.
JUDGE JUDGE
Sukham
Comparing Assistant
Digitally signed
by Sukhamay Dey
ay Dey Date: 2025.12.19
11:13:15 +05'30'