Gauhati High Court
Mina Ram Bordoloi vs The State Of Assam on 7 April, 2015
Author: P.K.Saikia
Bench: P. K. Saikia, M. R. Pathak
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL
PRADESH)
Crl. Appeal No. 162 of 2011
Sri Minaram Bordoloi,
S/o Late Madhuram Bordoloi,
Village--Medhigaon,
P.O.--Charaibahi,
P.S. Mikirbhita,
Dist.--Nagaon, Assam.
.... Appellant
Versus
The State of Assam
....Respondent
BEFORE
HON'BLE MR. JUSTICE P. K. SAIKIA
AND
HON'BLE MR. JUSTICE M. R. PATHAK
For the Appellant : Mr. S. Huda, Advocate.
For the Respondent : Ms. S. Jahan, Addl. P.P., Assam.
Date of hearing : 07.04.2015
Date of judgment : 07.04.2015
Crl. A. No. 162 of 2011
2
JUDGMENT AND ORDER (ORAL)
(P.K.Saikia,J) This appeal is directed against the judgment and order dated 19.08.2011 passed by the learned Sessions Judge, Morigaon in Sessions Case No. 56/2008 convicting the accused appellant herein of offence u/s 302 IPC and sentencing him to suffer imprisonment for life and also to pay a fine of Rs. 5000/- i.d. R.I. for another 2 (two) years for the offence aforesaid. It may be stated that the learned Trial Court has acquitted the appellant of offence u/s 498 A/306 IPC.
2. Being aggrieved and dissatisfied with the aforesaid judgment the accused/ appellant Sri Minaram Bordoloi (herein after referred to as the 'accused person') has preferred this appeal citing several infirmities in the judgment under challenge.
3. We have heard Mr. S. Huda, learned counsel for the appellant and also heard Ms. S. Jahan, learned Addl. P.P., for the State.
4. The case projected by prosecution in the FIR dated 16.01.2008 and in subsequent trial in short is that appellant herein habitually had tortured his wife Smt. Nijora Bordoloi (since deceased) since the time of her marriage with the accused person which was solemnized about 9 (nine) months prior to the date of incident. With the passes of every day, the accused person started perpetuating more and more torture on his wife. Ultimately on 14.01.2008, he had beaten her black and blue which required her hospitalization at Nagaon Civil Hospital where she died on 16.01.2008 while undergoing treatment.
5. In that connection, an FIR was lodged by one Sri Nandeswar Bordoloi, the father of the deceased, with O/C, Mikirbhita Police on 16.01.2008. On the receipt of the FIR, O/C, Mikirbhita Police registered a case vide Mikirbhita P.S. Case No. 3/2008 u/s 498A/306 IPC and ordered one Sri Hamidul Haque, S. I. of police to investigate the case. Being so entrusted with the investigation, Sri Haque, S.I. of police, visited the PO, requisitioned the service of an Executive Magistrate to conduct inquest on the dead body, sent the same to hospital for post mortem examination, arrested the accused person and did other things needful and on the conclusion of investigation, he submitted charge sheet u/s 498A/306 IPC against the accused person.
Crl. A. No. 162 of 2011 36. The learned Magistrate before whom charge-sheet was so laid, committed the case to the Court of Session since the offence u/s 306 IPC is exclusively triable by the Court of Session. The learned Sessions Judge, Nagaon, on the receipt of case on commitment transfer the case to the file of learned Addl. Sessions Judge, Nagaon for disposal in accordance with law. On receipt of the case on transfer and on hearing the parties, learned Addl. Sessions Judge framed charge u/s 302/498A/306 IPC against the accused person and charges, so framed, on being read over explained to the accused person, he pleaded not guilty and claimed to be tried.
7. During trial, prosecution has examined as many as 15 (fifteen) witnesses including the informant, I/O as well as M/O, the Doctors who conducted the postmortem examination on the dead body. In due course trial, the statement of the accused person u/s 313 was also recorded. Accused plea was of total denial. However, on being required, he adduced the evidence of Dr. Motiur Rahman (DW
1).
8. On conclusion of trail and on hearing the arguments, advanced by learned counsel for the parties, the learned Addl. Sessions Judge while acquitting the accused of offence u/s 498A/306 IPC was pleased to convict him u/s 302 IPC and sentenced him to punishment as aforesaid. It is that judgment which has been assailed in the present appeal.
9. Learned counsel appearing for the appellant submits that judgment under challenge cannot be sustained for reasons more than one. In that connection, it has been stated that the prosecution fails to establish the cause of death since the Doctors who conducted autopsy on the dead body render opinions on the cause of death which are drastically different. Since 2 (two) Doctors opined differently as the cause of death of the deceased, the prosecution miserably fails to show that death of the deceased was homicidal in nature which is first and foremost point for the prosecution which prosecution needs to establish to get the accused convicted of offence, he was charge with.
10. It has also been contended that one Doctor, namely Dr. Motiur Rahman was also examined from the side of the accused person and he was examined as DW 1. In his evidence, Dr. Rahman deposes that the deceased died due to acquit abdominal pain and not for other reason. Such evidence of DW 1 further shows that Crl. A. No. 162 of 2011 4 death of the deceased was not homicidal in nature and as such, learned Court below was not right in holding that the deceased died a homicidal death on sustaining ante mortem injuries.
11. It has also been contended that though several witnesses have been examined from the side of prosecution, most of those witnesses, on which the prosecution placed enormous reliance, turned hostile. The other witnesses hardly implicate the accused with crime in question since in their evidence they simply state that they were aware of some squabbles between the accused and the deceased since before the incident in question. However, such evidence alone could not establish that the accused, and none else, was the person responsible committing the crime in question, more so when the prosecution miserably fails to show that the death of the deceased was homicidal in nature.
12. It has also been stated that though PW 6, Sri Bijoy Kr. Bordoloi, who deposes in his evidence that he saw the accused weeping and also heard him saying that he killed his wife, yet, such evidence is too feeble to convince the Court that such a statement was an extra judicial confession as contemplated in law. Even otherwise no reliance could be placed on such an extra judicial confession since he did not report such a vital information to the I/O while he was examined u/s 161 CrPC.
13. According to the learned counsel for the appellant, non disclosure of such a vital information to the police during the course of investigation is a vice, affected the evidence of PW 6 which is commonly called as contradictions as contemplated in section 162 CrPC. It is a settled law that witnesses whose testimony suffers from contradictions cannot be relied upon unless his evidence received support on material point. However, in the present case there is absolutely nothing on record to show that the accused did confess his guilty to PW 6.
14. He, therefore, submits that learned Trial Court below was not right in coming to the conclusion that the accused, and none else, was the person who had assaulted his wife on or about 14.01.2008 for which she met her death at Nagaon Civil Hospital on 16.01.2008. In view of above, according to learned counsel for the appellant, the judgment, rendered by Trial Court which is questioned in this appeal is liable to be quashed and set aside on acquitting the accused person of offence U/s 302 IPC.
Crl. A. No. 162 of 2011 515. On the other hand, learned Addl. P.P., appearing for the State submits that evidence of PW 2 firmly shows that death of the deceased was homicidal in nature. There is also evidence on record to show that immediately after the marriage between the parties, they kept on quarreling and such quarrel increases with every passing day. Learned Addl. P.P., submits that there is evidence on record to show that on 14.01.2008, there was a quarrel between the parties in which the victim got seriously injured for which she was required to be hospitalized and while undergoing treatment, she died at hospital on 16.01.2008.
16. According learned Addl. P.P., when all the testimonies on record when read together it would appear more than clear that the accused, and none else, was the person who had brutally beaten his wife on 14.01.2008 for which she met her death on hospital on 16.01.2008.
17. She further submits that all the incriminating circumstances were brought to the notice of the accused person while he was being examined u/s 313 CrPC seeking his explanations thereto. However, instead of explaining those serious incriminating circumstances which stared direct at him the accused simply took the plea that he was innocent. It has also been held again and again that if the accused could explain incriminating circumstances which were brought to the notice of the accused person seeking explanation thereto, it may be provide the prosecution case with missing link, if any, in the prosecution case to place the prosecution case on more and more firm footing.
18. This is what happens to the case in hand. Above being the position, learned Addl. P.P, submits that there is no ground for this Court to interfere with the judgment under challenge. She therefore, prays this Court to dismiss the present appeal on affirming the judgment under challenge.
19. We have heard the rival submissions having regard to the judgment under challenge and evidence on record. Before we proceed further we find it necessary to have a look at the evidence of Doctors who conducted autopsy on the dead body. They are Dr. Bangshi Dhar Das (PW 1) and Dr. Soneswar Deoraja (PW 2) respectively. The findings of the Doctors are as follows:--
Crl. A. No. 162 of 2011 6"External appearance Stout body, Rigor mortis is present. Slight blood stain discharged from nostrils. Head is tilted to right. Cranium and Spinal Cord Odontoid process of altantoaxial joint is fractured at its lower 1/3rd and the joint displaced.
Membrance of spinal cord lacerated at 1st and 2nd vertebral ared. Blood fileed p the spinal canal and surrounding area. Spinal cord is lacerated and partially torn.
Thorax Walls, ribs and cartilages, pleaurae, larynx and trached, right lung, left lung, pericardium, vessels - Healthy. Heart: Healthy and small amount of liquid blood.
Abdomen :
Walls, perironeum- Healthy.
Mouth, Pharynx, oesophagus--Slight blood stained forthy discharge present. Stomach and its contents--Healthy, containing slight semi liquid content. Small intestine and its contents--Healthy, empty and distended. Large intestine and its contents - Healthy empty and distended. Liver, Spleen, Kidneys, Bladder - Healthy. Organs of generation, external and internal - Uterus shows about 6 weeks pregnancy.
Muscles, Bones and Joints:
Injury, disease or deformity--Nil Fracture --- Odointoid process of axis and altantoaxial joint is displaced and laceration and tearing of spinal cord.
Dislocation--Nil.
More detailed description of injury or disease:
1. Stout body, Rigor mortis present.
2. No sign of injury externally but head is tilted to right.
3. Altanto-axial joint is displaced and fracture of odontoid process at its lower 1/3rd position.
4. Membrances of spinal cord is lacerated at 1st and 2nd vertebral area.
5. Spinal cord is lacerated and partially torn and blood filling of spinal canal and surrounding area.
Opinion: In our opinion, cause of death is due to spinal cord injury with Neurological shock.
Crl. A. No. 162 of 2011 7Ext. 1 is my Post mortem report, Ext. 1(1) is my signature.
TO THE COURT Q 1. Considering the nature of the injury int eh vertebrae (neck), whether the incident can be homicidal or suicidal. Ans--Considering the nature of the injury, it was the sudden forceful extension of the enck (may be hanging)"
"External appearance Stout body, Rigor mortis is present. Slight blood stain discharged from nostrils. Head is tilted to right. Cranium and Spinal Cord Odontoid process of altantoaxial joint is fractured at its lower 1/3rd and the joint displaced.
Membrance of spinal cord lacerated at 1st and 2nd vertebral ared. Blood fileed p the spinal canal and surrounding area. Spinal cord is lacerated and partially torn.
Thorax Walls, ribs and cartilages, pleaurae, larynx and trached, right lung, left lung, pericardium, vessels - Healthy. Heart: Healthy and small amount of liquid blood.
Abdomen :
Walls, perironeum- Healthy.
Mouth, Pharynx, oesophagus--Slight blood stained forthy discharge present. Stomach and its contents--Healthy, containing slight semi liquid content. Small intestine and its contents--Healthy, empty and distended. Large intestine and its contents - Healthy empty and distended. Liver, Spleen, Kidneys, Bladder - Healthy. Organs of generation, external and internal - Uterus shows about 6 weeks pregnancy.
Muscles, Bones and Joints:
Injury, disease or deformity--Nil Fracture --- Odointoid process of axis and altantoaxial joint is displaced and laceration and tearing of spinal cord.
Dislocation--Nil.
More detailed description of injury or disease: Crl. A. No. 162 of 2011 8
1. Stout body, Rigor mortis present.
2. No sign of injury externally but head is tilted to right.
3. Altanto-axial joint is displaced and fracture of odontoid process at its lower 1/3rd position.
4. Membrances of spinal cord is lacerated at 1st and 2nd vertebral area.
5. Spinal cord is lacerated and partially torn and blood filling of spinal canal and surrounding area.
Opinion:-- In our opinion, cause of death is due to spinal cord injury with neurological shock.
Ext. 1 is our Port mortem Report, Ext. 1(2) is my signature."
20. A perusal of the evidence of PW 1 and PW 2 reveals that Doctors who conducted autopsy on the dead body could not concur as the cause of death since while PW 2 opined that death was homicidal in nature, PW1 found reason to hold that no such opinion could be rendered in view of the injuries, he detected on the body of the deceased. In this connection, we also find it necessary to consider the evidence of Doctor who first attended the victim at Nagaon Civil Hospital on 15.01.2008. He is Dr. Motiur Rahman. His evidence is as follows: ----
"On 15.01.2008, I was Sr. Medical & Health Officer at BP Civil Hosp[ital, Nagaon. On that day, I examined Mrs. Nijara Bordoloi, aged about 18 years, wife of Sri Minaram Bordoloi, village Charaibahi, PO Charaibahi, PS Mikirbhita in the District of Morigaon who was admitted at BP Civil Hospital, Nagaon on 15.01.2008 vide Registration NO. 115/2008 and expired on the same date at about 2.10 p.m. as per record and the evident cause of death was acute pain of abdomen.
Ext. ka is my report and Ext. ka(1) is my signature."
21. We have already found that the two Doctors who were examined from the side of prosecution and who conducted the post mortem examination on the body of the person aforesaid gave 2 (two) different opinions regarding the cause of death. However, the opinion, rendered by DW 1 lends more and more support to the opinion, rendered by PW 1 who refused to subscribe to the claim of PW 2 that the death of the deceased was homicidal in nature. Being so, in our opinion the prosecution could not establish beyond all reasonable doubt that the death of the person aforesaid was homicidal in nature.
22. It may be noticed here that the Doctors who conducted autopsy on the dead body did not find any external injury on the body of the wife of the accused person.
Crl. A. No. 162 of 2011 9The Magistrate who conducted inquest on the dead body too did not find any external injury on the body of the deceased. Such revelations once again serve to show that claim of prosecution that the deceased died a homicidal death and such homicidal death was caused by the accused herein cannot be accepted without a large grain of salt.
23. So situated, let us consider the evidence of PW 3, Sri Nandeswar Bordoloi, PW 4, Sri Milan Ch. Nath, PW 5, Sri Thaneswar Bordoloi, PW 6, Sri Bijoy Kr. Bordoloi, PW 7, Sri Pradip Bordoloi, PW 8, Arun Bordoloi, PW 9, Sri Bhadra Kt. Bordoloi, PW 10, Suresh Bordoloi, PW 12, Manoj Bordoloi, PW 13, Smt. Lily Bordoloi and PW 14, Smt. Moloya Bordoloi. Out of all those witnesses, PW 8, PW 9 and PW 13 were declared hostile to the prosecution. It is found apparent from their evidence that their evidence hardly supports the prosecution case although they were aware of the couple aforesaid being in quarrel occasionally.
24. More importantly, other witnesses aforesaid viz., PW 3, PW 4, PW 5, PW 6, PW 7, PW 10 and PW 12 too could not divulge anything to connect the accused with the crime under consideration. That being so, in our opinion none of the non official witnesses could anyway implicate the accused herein with the crime aforesaid.
25. According to Learned Addl. P.P., the extra judicial confession, made by the accused person before PW 6 is, yet, another evidence which comes down heavily on the accused person in showing that accused was the person responsible for death of his wife. We have already found that PW 6 did not divulge such an important statement before the police while he was being examined u/s 161 CrPC.
26. Being so, in our considered opinion the claim of prosecution that the accused made an extra judicial confession before PW 6 implicating him with the crime in question cannot be accepted as truthful one since such evidence of PW 6 suffers from vice which is commonly called as contradictions as contemplated in Section 162 CrPC. Being so, no reliance can be placed on that part of evidence of PW 6 where he is found saying that the accused confessed his guilt before him when he met him after the incident.
27. In view of what we have discussed herein before and what have emerged there-from, we are of the opinion that the prosecution could not make out the Crl. A. No. 162 of 2011 10 charge u/s 302 IPC leveled against the accused person beyond all reasonable doubt and as such, learned Trial Court below was not right in convicting the accused person of offence u/s 302 IPC and sentenced him to punishment as aforesaid.
28. Accordingly, the appeal is allowed on setting aside the judgment under challenge.
29. The accused person is ordered to be released forthwith, if he is not required in connection with any other case.
30. Return the LCR forthwith.
JUDGE JUDGE Rupam Crl. A. No. 162 of 2011 11 Crl. M.C. No. 872/2011 IN Crl. A. No. 162/2011 BEFORE HON'BLE MR. JUSTICE P.K. SAIKIA AND HON'BLE MR. JUSTICE M. R. PATHAK 07.04.2015 (P. K. SAIKIA, J)
In view of the order passed today in Crl. A. No. 162 of 2011, this Misc. Case is stands disposed of.
JUDGE JUDGE
Rupam
Crl. A. No. 162 of 2011