Gauhati High Court
Sri Tarun Barua vs State Of Assam on 24 August, 2012
Author: P.K.Saikia
Bench: A.K. Goel, P.K. Saikia
1
IN THE GAUHATI HIGH COURT
THE HIGH COURT OF ASSAM, NAGALAND.MEGHALAYA, MANIPUR,
TRIPURA, MIZORAM AND ARUNACHAL PRADESH
Criminal Appeal (J) No.175/2007
Sri Tarun Barua,
Son of (L) D. Barua,
R/o Dhalpur,
P.S. Bihpuria,
Dist.-Lakhimpur, Dakua, Dhalpur
Assam. : Appellant
-Versus-
State of Assam : Respondents
PRESENT THE HON'BLE CHIEF JUSTICE MR A.K. GOEL THE HON'BLE MR JUSTICE P.K. SAIKIA For the accused/appellant : Ms N Mitra, Amicus Curiae.
For the respondents : Mr Z Kamar, PP Assam.
Date of hearing : 09.08.2012
Date of judgment and order :
JUDGMENT AND ORDER (CAV)
(P.K.Saikia, J)
This jail appeal is directed against the judgment, dated 06.09.07, passed by the learned Sessions Judge, North Lakhimpur, Lakhimpur, in Sessions Case No.31(NL)05 convicting the accused/appellant under Crl.Appl.No.175(J)07 2 Section 302 IPC and sentencing him to imprisonment for life and to pay a fine of Rs.1000/- in default R.I. for another three months.
2. Being aggrieved by and dissatisfied with, the accused/appellant has preferred this appeal.
3. The facts necessary for disposal of the present appeal, in short, are that on 14.10.04, an FIR was lodged with I/C Dholpur Police Outpost alleging that on that day, at about 9 am, the accused killed his wife. On receipt of the information aforesaid, the I/C Dholpur Police Outpost made a GD entry and forwarded the FIR to the O/C Bihpuria Police Station for registering a case and for doing needful in accordance with law. On receipt of the FIR, O/C Bihpuria Police Station registered a case and ordered investigation.
4. In course of investigation, Shri Simanta Bora, S.I. of Police, visited the place where the dead body was found lying, caused an inquest to be done on the dead body, sent the same to Civil Hospital North Lakhimpur for post mortem examination and on completion of the investigation, he submitted charge sheet under Section 302Indian Penal Code, (in short IPC) against the accused person and forwarded him to the Court to stand his trial there.
5. The learned Magistrate, before whom the charge sheet was so laid, committed the case to the Court of Sessions since the offence under Section 302 IPC is exclusively triable by the Court of Sessions. The learned Sessions Judge, North Lakhimpur after the commitment of the case and after hearing the parties, framed charge under Section 302 IPC and charge,, so framed, on being read over and explained to the accused person, he pleaded not guilty and claim to the tried. Crl.Appl.No.175(J)07 3
6. During trial, the prosecution has examined as many as nine witnesses to make out the charge leveled against the accused person. The statement of the accused person under Section 313 CrPC was also recorded. His plea was that his wife had committed suicide, and, in order to probabilise his plea, the accused person had placed before the Court the evidence of three defence witnesses as well.
7. On conclusion of the trial and after hearing the arguments, advanced by the learned counsel for the parties, learned Trial Court convicted the accused person under Section 302 IPC and sentenced him to punishment aforesaid. It is that judgment which has been assailed herein this appeal.
8. We have given our anxious consideration to the rival submissions advanced by the learned counsel for the parties. Before we could appreciate the rival submissions on merit, we find it necessary to have a brief review on the evidence on record and the evidence of Dr. H Baruah (PW 4) who conducted the post mortem examination on the dead body is first taken up for consideration.
9. According to him (PW 4), on 15.10.04, he was posted at North Lakhimpur Civil Hospital as Medical & Health Officer. On that day, he conducted a post mortem examination over the dead body of one Mantora Boruah on being sent by Dhulpur Police Station. What he observed during his post mortem examination on the dead body of the person aforesaid were as follows:-
"(i) A thin ligature mark which is not easily noticeable was seen round the neck on close observation. It was situated below the thyroid cartilage, which was horizontally placed and encircled the neck. It was dry and parchment like. On dissection of the ligature mark the subcutaneous areolar tissue was found to be ecchymosed. There was no stretching of the neck.
(ii) A bruise of 1 ½2 x 1 cm was seen on the right side of the face below the right cheek which is a sign on the right.
Crl.Appl.No.175(J)07 4
(iii) A nail scratch was seen on the left side of face below the left ear which is a sign of struggle.
(iv) Face and the neck was congested.
(v) Blood stained froth was seen at both nostrils. The injuries were ante mortem in nature.
In his opinion, the cause of death was asphyxia as a result of strangulation.
All the injuries were ante mortem in nature. Rigor mortis was present."
In his cross examination, he has specifically stated that in case of hanging, the injury which he detected cannot be caused as the ligature mark in case of hanging is irregular i.e. noncotinuous and oblique. He further opines that injury of nail mark found over the dead body of the deceased could not have been caused while body was brought down from the state of hanging.(Emphasis supplied by us)
10. The evidence of Doctor remained un-disturbed despite he being subjected to a detail cross examination. Therefore, his evidence, particularly which he rendered in his cross- examination, unmistakably establishes that death of deceased was due to strangulation since the injuries, he noticed on the dead body death of deceased can never be caused due to hanging .W are, therefore, constrained to conclude that death of the deceased was homicidal in nature.
11. So situated, let us consider the evidence of the witnesses examined from the side of prosecution.PW 1 Dhanbar Saikia is the niece of the deceased. According to him, it was he who brought up the deceased since her childhood. However, she eloped with the accused few years back and started living with him as husband and wife. Out of their wedlock, a girl and a boy were born to them.
12. Soon after the marriage, the accused, however, started demanding his wife to bring money from his in-laws and he used to torture her whenever she could not meet his demand for money. On 14.10.04, in the morning, he was in the house of one Rikeshwar Dutta, whose house is Crl.Appl.No.175(J)07 5 not far away from the house of the accused person. As he was gossiping in the house of the later, he heard a quarrel between the accused
13. . Being ashamed of on hearing the quarrel between the accused and his wife, he left the house of Rikeshwar Dutta. However, little later one Mouchumi Saikia informed him that his niece Mantora was murdered by the accused person. On being so informed, PW 1 along with his wife went to the house of the accused person Arriv.ing there, he found her niece lying dead upon a bed inside the house of the accused person.
14. He, thereafter, lodged an FIR with the Police which was proved as Ext.1. In his cross examination, he has stated that he came to know about the incident from one Mouchumi Saikia (PW 7), that he did not state in his FIR that the accused used to assault his wife demanding money and that he makes such a claim for the first time before the Court only during the course of the trial of the accused.
15. PW 2 is Gitanjali Saikia, wife of PW 1.She deposes that they brought up Mantora Boruah. However, she eloped with the accused and lived with him as husband and wife for several years. Unfortunately, sometime after her marriage, the accused started to demand money from his wife and whenever she could not met his demand, he subjected her to torture. On the day of occurrence, her husband was in the house of Rikeshwar Dutta which is situated at a small distance from the residence of the accused person.
16. When he was there, he heard quarrel between the accused and the deceased. Her husband therefore came home and told PW 2 to enquire as to why the parties were quarreling. A little later thereafter, Mouchumi Saikia came to their house and told them that Montara (deceased) is dead and asked them to enquire the matter. Crl.Appl.No.175(J)07 6
17. Being so informed, PW 2 along with PW 1 immediately went to the house of the accused person and found Montara lying dead upon a bed inside the house of the accused person. In her cross examination, she has admitted that when she arrived at the house of the accused person, she found the accused crying and applying oil to the feet of the deceased.
18. PW 3 is Smti. Kalpana Bania whose house is near the house of the accused person also deposes that prior to the occurrence under scrutiny, she heard a quarrel between the accused and deceased. A little later, she went to the house of the accused person and found Montara lying dead upon a bed inside the house of the accused person. In her cross examination, she has stated that she heard accused Tarun crying "I'm undone, "I'm undone, what have you done to you"?
19. PW5 Shri Dulal Bora, a co-villager of the accused person, deposes that on the day of occurrence at about 9 am, while he was going by the side of the accused house taking his cows to the field, he heard a quarrel between the accused and the deceased. A little later, when he returned home, he came to know that Montara is dead.
20. He thereafter, went to the house of the accused person and found her lying dead on a bed inside the house of the accused person. In his cross examination, he has stated that on hearing that Montara was no more, about 20/30 persons including Kalpana, Gitanjali etc. came to the residence of the accused person.
21. PW 6 Rikeshwar Dutta, another co-villager of the accused person, deposes that his house is situated on the back side of the house of the accused person. On the fateful day at about 7 am, he heard a quarrel between the accused and the deceased. He thereafter, went to his house and returned home at about 12 O'clock to take his midday meal and came Crl.Appl.No.175(J)07 7 to know that Montara was no more but he did not know how Montara met her death.
22. PW7 Smti. Mouchumi Saikia, a student of 25 years of age, deposes that her house is situated at the distance of 20 mts from the house of the accused person. On the fateful day at about 7 am, she was in her residence. Precisely at that time, she heard hue and cry coming from the residence of the accused person. She, therefore, rushed to such place and found Montara lying dead on the bed inside the house of the accused person. She conveyed such information to one Dhanbar, who is the uncle of the deceased. She further deposes that she did not know how Montara met her death.
23. PW 9 is Sri Simanta Bora, S.I. of Police deposes that on 14.10.04, he was working as I/C Dholpur Police Outpost. On that day, at about 9 am, one Dhanbar Saikia (PW 1) had informed him in writing that the accused killed his own wife. On getting such information, he made a GD entry, certified copy of which was proved as Ext.3 .Having received the FIR Ext.1, he forwarded it to the O/C Bihpuria for doing needful in accordance with law.
24. Thereafter, he proceeded to the place of occurrence in person. Arriving at such place, he found the deceased lying dead upon a bed inside the house of the accused person. Then he got an inquest done on the dead body by D.K. Mili, Executive Magistrate. The inquest report was proved as Ext.2. Thereafter, he sent the dead body to hospital for post mortem examination. As the investigation proceeded, he also arrested the accused person and produced him before the Court on 15.10.04.
25. However, before he could complete the investigation, he was transferred and as such, he handed over the case diary to his successor. Crl.Appl.No.175(J)07 8 In his cross examination, he had admitted that he noticed a reddish layer on the foot of the deceased but he did not ascertain what that layer was. He further admitted that he did not mention in the GD entry the place where the woman was killed.
26. PW 8 Nitul Das deposes that on 18.02.05, he was posted as I/C Dholpur. He received the case dairy pertaining to Bihpuria P.S. Case No.196/04 with a direction to complete the same. Accordingly, he perused the case diary and found that save and except the collecting of post mortem report, other part of the investigation had already been done. He thereafter collected the post mortem report and submitted charge sheet under Section 302 IPC against the accused person.
27. Now, let us see, how far above evidence on record makes out the allegation brought against the accused person. With above aim in view, we have started to scrutinize the evidence on record. On such an examination, we have found that though in his evidence, PW 1 claims that the accused used to assault his wife (the deceased) habitually in order to extract some money from her family members, yet, such evidence did not inspire confidence since he divulged such a vital information for the first time on 08.05.06., and that too, when he rendered evidence before the Court on 08.05.06.
28. Similarly, the claim made by PW 2 that the accused used to assault his wife whenever she could not met his demand for money (which she came to know from the neighbour of the deceased) inspire no confidence inasmuch as none of the neighbourers, examined from the prosecution side, uttered any word about their having heard or having seen the accused torturing his wife for her not meeting his demand for money. Above being position, we are constrained to hold that prosecution Crl.Appl.No.175(J)07 9 could not establish that the accused subjected his wife to torture for her not meeting his demand for money
29. But then, the evidence of PW 1 and PW 2 coupled with the evidence of PW 3, PW 5, PW 6 and PW 7 unmistakably demonstrates that on the fateful day, there was a fierce quarrel between the accused and the deceased which caught the attention of most of the neighbourers. Their evidence also demonstrates that soon thereafter, the deceased met her death, and that too, in her own house. The evidence on record further reveals that the relationship between the parties were far from cordial at least during the period running up to the incident in question.
30. In our considered opinion, the evidence on record, therefore, very firmly establishes the following circumstances:-
(i) The accused married the deceased about 8/9 years before her death;
(ii) The accused relationship with his wife, deceased was far from normal since before the alleged incident;
(iii) On the fateful day, just before her death, the accused engaged in a quarrel with his wife (the deceased);
(iv) The quarrel was quite violent one as it caught the attention of almost all the neighbourers;
(v) Soon thereafter, the deceased met her death in her own house and
(vi) There was no evidence on record to show that all the time relevant, there was any person other than the accused and the deceased in their household.
Some other circumstances of extremely incriminating nature also emerge from the evidence on record, particularly from the testimony of Crl.Appl.No.175(J)07 10 Doctor and Ext.2, the post mortem report, prepared by him. Those circumstances are:-
(i) Thin ligature mark which was not easily noticeable was seen round the neck which was situated below the thyroid cartilage which was horizontally placed and encircled the neck;
(ii) Bloodstained froth was seen at both nostrils;
(iii) Ligature mark noticed on the neck cannot be caused due to hanging and
(iv) The death was therefore homicidal in nature.
31. In this context, it may be stated that law relating to a case, based on circumstantial evidence, is well settled and the decision rendered by Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda VS State of Maharashtra reported AIR 1984 SC 1622 may be looked into in connection with the case under scrutiny.
1) "Circumstances from which the conclusion of guilt to be drawn should be fully established.
The circumstances concerned, 'must' or 'should' and not 'may be' established.
2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
3) Circumstances should be of a conclusive nature and tendency.
4) They should excludes any possible hypothesis except that one to be proved; and
5) There must be a chain of evidence so complete as not to leave any reasonable ground for conclusive consistent all with the innocence of the accused and must show that in all have probability the act must have been done by the accused ........".
32. In the aforesaid decision, Hon'ble Supreme Court has laid down five golden principles in ascertaining the guilt or otherwise of an accused involved in a case based on circumstantial evidence. Crl.Appl.No.175(J)07 11
33. Coming back to our case, we have found that the circumstances, enumerated above, when read together, there cannot be an escape from the conclusion that those circumstance makes a change of events, unbreakable anywhere which devastatingly demonstrate that it was accused, and none else, who occasioned the untimely death of deceased at her own house in the morning of 14.10.04.
34. However, the defence tries to demolish such a conclusion setting up the plea that deceased death was not homicidal in nature but it was suicidal instead and to probabilise such a plea, it has adduced the evidence of three DWs as well. Before proceeding further, we find it necessary to repeat the plea which the accused had laid bare during his examination under Section 313 CrPC.
35. A perusal of the statement, rendered by the accused in his 313 CrPC, reveals that the following are the important ingredients of his claims under Section 313 CrPC:-
(i) On the fateful day, in the morning, he quarreled with the deceased on some domestic matters;
(ii) After such quarrel, he went to Dholpur to purchase some materials required in his shop;
(iii) When he was returning home from Dholpur market, he met one Sri. Tanka Das on the way;
(iv) Sri. Tanka Das came with him to his shop to have the wheels of his bicycle filled with air;
(v) Arriving home, when he opened the doors of his house to collect the pump, he found his wife hanging from the roof of his house.
(vi) She was still struggling for life;
Crl.Appl.No.175(J)07 12
(vii) Accused with the help of Sri. Tanka Das got the chadar ( a piece of long cloth used by woman to wrap up their body) which was used by the deceased in hanging herself from the roof and brought her down to the ground;
(viii) He immediately went to the house of Sri. Hun Dutta to bring his handcart so as to take his wife to hospital and
(ix) But arriving at home, he found his wife already expired.
36. Now, let us see, how far the above claims stand probabilised in the face of evidence, rendered by DWs, namely, DW1 Homweshwar @ Hun Dutta, DW2 Tanka Das and DW3 Kamal Bania. On the perusal of evidence of DW 3, we have found that his evidence could not throw any light in ascertaining the cause of death of the deceased aforesaid since he is only found saying that on the fateful morning, he came to the house of the accused person hearing hue and cry there-from and on arriving there, he found the accused person trying to warm up the body of the deceased.
37. On the other hand, DW 1 has supported the claim of the accused that on the fateful morning, at about 8/9 am, the accused came to his house and requested him to give him his handcart as he had to take his wife to hospital and as she tried to commit suicide. However, once again, the evidence rendered by DW1 could not throw much light in unfolding the mystery, we have been seized with.
38. The defence has, therefore, placed enormous reliance on the testimony of DW2, Sri Tanka Das. Being so, let us see to what extent the evidence rendered by DW2 helps the accused in providing relief to the later. On the perusal of the evidence, we have found that according to him, on the fateful morning, he was proceeding towards a place called Crl.Appl.No.175(J)07 13 Dakua. On the way to Dakua, he met the accused in front of his (the accused) house and as such, he came to the shop of the accused person to have the wheels of his bicycle filled with air.
39. When he requested him to provide him the pump in order to fill the wheels of his bicycle, the accused went to his house, opened the lock of the doors of his house. On opening the doors of his house, the accused raised hue and cry seeing his wife hanging from the roof. He also saw his wife struggling for life. He immediately rushed to the accused person and helped him in un-fastening the chadar with the help of which the deceased hanged herself from the roof and brought her down to the ground.
40. By that time, the neighbourers came to the house of the accused person on hearing hue and cry and the accused also made an arrangement to take his wife to hospital in a handcart. In his cross examination, he has confirmed that the house of the accused person was locked from outside when the incident in question occurred and on opening the lock, the accused entered his house to bring the pump there- from.
41. On a close reading of the evidence of DW2, we have found that his evidence instead of supporting the claim of the accused which he made in his statement under Section 313 CrPC, makes his claim more and more suspicious and doubtful. We have already found that according to DW2 on the fateful morning, while he was on the way to Dakua, he met the accused just in front of his house and thereafter, he came to his cycle repairing shop to have the wheels of his bicycle filled with air.
42. Therefore, if we believe the version rendered by DW2, regarding their rendezvous on the fateful day in the morning, we cannot place any reliance whatsoever on the claim of the accused/appellant that he met Crl.Appl.No.175(J)07 14 DW2 on the fateful morning while he was returning home from Dholpur market. This important inconsistency on a very vital point greatly shattered the credibility of plea, raised by the accused person, more so, when the DW 2 emphatically claims that he met the accused, not in any other place but just in front of his own house.
43. On a further perusal of the record, we have again found that on being requested by DW 2, the accused went to his house to take out the pump there-from and in that process, he opened the doors which was under lock and key at that point of time and found the deceased hanging from the roof. Now, the question is why did the accused keep his house under lock and key with wife inside?
43A. Such a behavior on the part of the accused is found to be extremely mysterious and enormously strange. Unless it is explained by the accused person as to why he kept his house under lock and key with his wife still inside, it would be one more telltale testimony of the accused being someway or other involved in the crime under consideration.
44. We have already found that accused offered no explanation as to why he kept his house under lock and key with his wife still inside. Thus, in the facts and circumstances in the present case, the accused locking his wife inside his house, when the incident in question occurred, as it appears from the testimonies rendered by DWs, becomes one more testimony of accused being the author of the crime under consideration.
45. More and more inconsistencies in the plea of defence make the defence stance extremely unreliable. In his evidence, DW 2 has stated that he and the accused brought the body of the deceased down to the ground after untying the knot of the chadar from the roof of the house of the accused person. But that was not the case if we believe the version of Crl.Appl.No.175(J)07 15 the accused person, rendered on this count, for, according to the accused, he with the help of DW 2 brought down the body of the deceased on cutting the chadar which was used by deceased in hanging herself from the roof.
46. This inconsistency on a very vital point quite clearly demonstrates that the claim of accused that the deceased hanged herself from the roof of his house and that the accused and DW 2 brought her down to the ground is nothing but a story invented to hide the truth from the notice of the Court. The fact that there was absolutely no evidence to show that such an important fact was never brought to the notice of I/O any time during investigation doubly affirms the above conclusion of us.
47. One more factor that deserves our attention is that at no point of time during the cross examination of PWs, defence had made any suggestion to the effect that the death of deceased was due to hanging. Not putting such a claim to the prosecution witnesses during trial is nothing but an eloquent testimony of the plea that deceased committing suicide being invented just to hoodwink the truth.
48. In the face of what we have discussed hereinbefore and what have emerged there-from, we are of the opinion that defence could not probabilise its claim that the death of deceased was suicidal in nature. Rather, all the materials on record clearly establish that death of the deceased was homicidal in nature and author of such death was none other than accused/appellant Tarun Barua. Being so, we have found no infirmity whatsoever in the judgment under challenge.
49. In the result, the appeal is dismissed.
50. Return the LCR.
Crl.Appl.No.175(J)07 16
51. We appreciate the assistance rendered by Ms N Mitra,, learned Amicus Curiae and direct that an amount of Rs.5000/- be paid to Ms N Mitra, as her remuneration by the State Legal Services Authority.
52. In view of the provision prescribed by Section 357(A) Cr.P.C. the victim or his/her dependents are entitled to get compensation for rehabilitation in appropriate cases. Therefore, for the sake of brevity and in the light of our discussions, made in Criminal Appeal No.93(J)/2005 (disposed on 22.12.2011), with regard to the victim compensation as provided by Section 357(A) Cr.P.C., we make the following directions:-
1. As an interim measure an amount of Rs.50,000/- shall be deposited by the State Government with the District Legal Services Authority of North Lakhimpur District within a period of two months from this date. The District Legal Services Authority, on receipt of the said money, shall make an enquiry to ascertain as to whether, there is dependent(s) ,(not being the accused person) who suffered loss and injury as a result of death of the deceased and if such dependant(s) or legal representative(s) need any rehabilitation.
2. Upon such enquiry, if it is found that the dependent(s), if any, need rehabilitation, then the District Legal Service Authority shall initially release the said interim amount and thereafter direct payment of adequate compensation, as may be prescribed by the scheme to be prepared by the State Government.
3. It is made clear that if the District Legal Services Authority, after due enquiry, arrives at the findings that there is no Crl.Appl.No.175(J)07 17 dependent(s) or that the dependant(s) of the deceased/victim does not required any rehabilitation, then the District Legal Services Authority, shall refund the said amount of Rs.50,000/- without delay, in favour of the State Government.
A copy of this judgment be made available to (1) Chief Secretary, Govt.of Assam, (2) Secretary, State Legal Services Authority, Assam and (3) District Legal Services Authority, North Lakhimpur for doing needful as indicated above.
JUDGE CHIEF JUSTICE
samir
,
Crl.Appl.No.175(J)07