Gauhati High Court
Page No.# 1/19 vs The State Of Assam And Anr on 4 August, 2025
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/19
GAHC010125102020
2025:GAU-AS:10022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./187/2020
MAFIDUL ISLAM @ MAHIDUL ISLAM
S/O MD. AJGOR ALI, VILL-KHARPURI HABI, P.S. DALGAON, DIST-
DARRANG, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR.
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
2:MALEKA KHATUN
W/O ABDUL ROUF
VILL-BECHIMARI
P.S.-DALGAON
DIST-DARRANG
ASSAM
PIN-78451
Advocate for the Petitioner : MR H R A CHOUDHURY, MR. A AHMED,MS L RAHMAN,MR. I
U CHOWDHURY
Advocate for the Respondent : PP, ASSAM,
BEFORE
Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI
HON'BLE MR. JUSTICE KARDAK ETE
Advocate for the Appellant : Shri H.R.A. Choudhury, Sr. Adv.
Shri A. Ahmed
Advocate for the Respondent : Ms. A. Begum, APP, Assam
Page No.# 2/19
Date of Hearing : 24.07.2025
Date of Judgment : 04.08.2025
Judgment & Order
(S.K. Medhi, J.)
The instant appeal has been preferred under Section 374(2) of the
Code of Criminal Procedure, 1973 [corresponding to Section 415(2) of the
BNSS] against the judgment dated 02.03.2020 and sentence dated
07.03.2020 passed by the learned Additional Sessions Judge (FTC),
Darrang, Mangaldoi in Sessions Case No. 193(DM)/2017 under Section 302
of the IPC [corresponding to Section 103 BNS], thereby sentencing the
appellant to undergo RI for life and fine of Rs. 10,000/. (Rupees Ten
Thousand) in default, further imprisonment for 2 months.
2. The criminal law was set into motion by lodging of an Ejahar on
05.10.2017 by the PW1, who is the maternal aunt of the victim. It has been
alleged that the victim was married off to the accused about 5-6 years back
and the accused used to torture her niece with regard to dowry since the
marriage. On the said date, at about 8:00 AM, the accused person had
poured kerosene on her niece and set her on fire with an intention to kill
and at the time of lodging of the Ejahar, she was under treatment at the
Hospital. It was also mentioned that as the parents of the victim were at
Karnataka, she was compelled to lodge the Ejahar, as directed by them. In
the said Ejahar, two persons were named as accused. After registration of
the Ejahar, the investigation was done by the IO (PW9) in which the
statements of the relevant witnesses were recorded, Post-Mortem Report
collected and after completion of the formalities, the Charge Sheet was laid.
Page No.# 3/19
The charges were accordingly framed under Sections 302/304(B)/498(A) of
the Indian Penal Code and on denial of the same, the trial had begun. It
may be mentioned that though two persons were made accused in the
Ejahar, the charges were framed against the present appellant only.
3. The prosecution had adduced evidence through 9 nos. of witnesses
including the Doctor and the IO.
4. The informant was examined as PW1 who had stated that the
marriage was held between the parties 5-6 years back and she was
informed by her sister over phone regarding the quarrel between the
deceased and the appellant. The PW1 was again called by telephone and
the incident of setting ablaze the deceased was informed whereafter she
had gone straight to the Police Station and had lodged the Ejahar. In the
cross-examination, she had stated that the appellant (husband) and
relatives took the deceased to the Hospital.
5. PW2 is the father of the victim who had stated that at 8:00 AM on
the said date, the accused had informed him over phone regarding the
incident. He had narrated that he did not know why the case was lodged
against the appellant. He had stated that after the death of his daughter,
he had married his other daughter Fatima to the appellant. He had also
narrated that there were two sons of the parties who were aged about 6
years and 3 years. In the cross-examination, he had stated that he came to
know from the villagers that the appellant was innocent and that the
deceased had a bad temperament and used to beat herself. He had also
stated that he did not find any fault with the appellant.
6. PW3 is the neighbour who had stated that the deceased had herself
Page No.# 4/19
poured kerosene and set her ablaze. In the cross-examination, she had
stated that at the time of the incident, the appellant was sitting on the road
with her and the incident of fire had taken place inside the house. She had
also stated that they tried to douse the fire and the deceased had told that
she had herself put the fire. She had stated that the marriage between the
parties was held 8-9 years ago.
7. PW4 is a neighbour and also the cousin of the deceased. She had
narrated of hearing a hue and cry and that the deceased had shouted that
she did not set herself to fire and it was some other person.
8. PW5 is a neighbour of the appellant and had stated that when the
deceased was found to be set on fire, the appellant had poured water on
the deceased. He had also stated that when the villagers had come to the
place of occurrence, the appellant had fled. He had also deposed about a
dying declaration by the deceased. In the cross-examination, however, he
had stated that he did not remember telling the police regarding the aspect
of fleeing by the accused and about the dying declaration.
9. PW6 is a neighbour who, however was declared hostile by the
prosecution. He had denied the suggestion regarding the statements
allegedly made by him to the Police. In the cross-examination, he had
stated that he did not see how the fire had caught the body of the
deceased.
10. PW7 is also a neighbour who was also declared hostile by the
prosecution. In her cross-examination, she had stated about hearing from
some children that the deceased had set fire by herself.
11. PW8 is the Doctor who had conducted the post-mortem on the body
Page No.# 5/19
of the deceased. As per the opinion, the death was a result of extensive
burn. For ready reference, the findings are extracted hereinbelow-
"I) EXTERNAL APPEARANCE: Dead body of a dark coloured middle
aged female person with stunt body and average height. Both eyes
were closed. Mouth is also closed. Rigor Mortis present. Almost half
of hair burnt. Extensive superficial burn over body, with peeling of
skin over forehead both sides of face (1) front of both upper limb (ii)
middle part of front of left leg. No other injury mark found.
II) CRANIUM AND SPINAL CANAL: Scalp, skull, vertebrae- Normal.
Membrane- Normal and intact. Brain and Spinal cord Normal. Liver,
Spleen and kidney- Normal Bladder- Normal and Empty, Organs of
generation, extema and internal.- Normal.
III) THORAX : Walls, ribs and cartilages- Superficial burn of Pleurae
- Congested.
Laryax and trachere Congested, Right lung, Left lung, Pericar (dium)
Heart, Normal. Vessels -
IV) ABDOMEN: Walls - Superficial burn over both front and back of
abdomen wall. Peritonoum Normal & intact, Mouth, pharynx
oesophagus Normal. Normal. Stomach and its contents Contains
semi digested food materials without any foul smell or colour. Small
intestine and its contents Normal. Contains semi digested food
matter. Large intestine and its contents- Normal. Contains fecal
matter with gas.
V) MUSACLES, BONES AND JOINTS Injury Superficial burn injury as
described.
Page No.# 6/19
All findings were antemortem in nature and caused by burn.
In my opinion, death is due to hypovolumaemic, as a result of
extensive burn."
The Post-Mortem report was proved as Exhibit 1.
12. PW9 is the IO, who had made the investigation. He had narrated
about the steps taken in the investigation and had proved the Ejahar as
Exhibit 2 and the Charge Sheet as Exhibit 4. He had however deposed that
the statements allegedly made by PW3, PW6 and PW7 were not made
before him. He had specifically stated that PW5 did not make the
deposition regarding the fleeing away of the appellant and of the deceased
making any dying declaration implicating the appellant.
13. After recording of the evidence of the prosecution, the incriminating
materials were put to the appellant in his examination under Section 313 of
the CrPC [corresponding to Section 351 of the BNSS]. It may be noted that
against Question No. 8, the appellant had responded that he had informed
his father-in-law regarding the incident. As regards the response to
Question Nos. 9 and 22, it appears that he had responded that the
deceased had asked for Rs.100/- so as to go to her parental house and
because of non-availability, the appellant had given her Rs.50/- which had
infuriated her and accordingly, the deceased had committed suicide by
setting herself ablaze.
14. Based on the aforesaid materials, the learned Trial Judge had passed
the impugned judgment of conviction and sentence which is the subject
matter of challenge in the present appeal.
15. We have heard Shri HRA Choudhury, learned Senior Counsel assisted
Page No.# 7/19
by Shri A. Ahmed, learned counsel for the appellant. We have also heard
Ms. A. Begum, learned Additional Public Prosecutor for the State of Assam.
The respondent no. 2 who was served, as revealed vide the office note
dated 23.11.2020, had chosen not to appear.
16. Shri Choudhury, the learned Senior Counsel for the appellant has
formulated the following points in support of his contentions-
i. The case is based on circumstantial evidence and the
circumstances are not complete.
ii. There is no motive involved which is required to be proved
in a case wherein the evidence is circumstantial in nature.
iii. There is material on record to show that the appellant had
himself doused the fire.
iv. There is no material to show the use of kerosene to set the
victim on fire.
v. There was no seizure done of any container for the
kerosene and the PM Report also does not indicate that there was
any use of kerosene.
vi. No inquest was done on the body of the deceased so as to
indicate the veracity of the accusation made.
17. In support of the submissions, the learned Senior Counsel has relied
upon the following cases-
i. Raja Ram Vs. State of Rajasthan [2005 SCC (CRI)
1050]
ii. Reena Hazarika Vs. State of Assam [AIR 2018 SC
Page No.# 8/19
5361]
18. The case of Raja Ram (supra) has been cited to bring home the
contention that the prosecution is bound by its own witness. For ready
reference, the observations made by the Hon'ble Supreme Court are
extracted hereinbelow-
"9. But the testimony of PW-8- Dr. Sukhdev Singh, who is another
neighbour, cannot easily be surmounted by the prosecution. He has
testified in very clear terms that he saw PW-5 making the deceased
believe that unless she puts the blame on the Appellant and his
parent she would have to face the consequences like prosecution
proceedings. It did not occur to the public prosecutor in the trial
court to seek permission of the court to hear PW-8 as a hostile
witness for reasons only known to him. Now, as it is, the evidence
of PW-8 is binding on the prosecution. Absolutely no reason, much
less any good reason, has been stated by the Division Bench of the
High Court as to how PW-8's testimony can be side-lined."
19. The case of Reena Hazarika (supra) has been cited wherein the
Hon'ble Supreme Court has explained the application of Section 106 of the
Indian Evidence Act [corresponding to Section 106 of the BSA] and also has
dealt with the examination of an accused and its importance under Section
313 of the CrPC. For ready reference, the relevant observations are
extracted hereinbelow-
"8. The essentials of circumstantial evidence stand well-established
by precedents and we do not consider it necessary to reiterate the
same and burden the order unnecessarily. Suffice it to observe that
Page No.# 9/19
in a case of circumstantial evidence the prosecution is required to
establish the continuity in the links of the chain of circumstances, so
as to lead to the only and inescapable conclusion of the accused
being the assailant, inconsistent or incompatible with the possibility
of any other hypothesis compatible with the innocence of the
accused. Mere invocation of the last seen theory, sans the facts and
evidence in a case, will not suffice to shift the onus upon the
accused under Section 106 of the Evidence Act, 1872 unless the
prosecution first establishes a prima facie case. If the links in the
chain of circumstances itself are not complete, and the prosecution
is unable to establish a prima facie case, leaving open the possibility
that the occurrence may have taken place in some other manner,
the onus will not shift to the accused, and the benefit of doubt will
have to be given.
..
16. Section 313, Cr.P.C. cannot be seen simply as a part of audi alteram partem. It confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right as a constitutional right to a fair trial under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath under Section 313(2), Cr.P.C. The importance of this right has been considered time and again by this court, but it yet remains to be applied in practice as we shall see presently in the discussion to follow. If the accused takes a defence after the prosecution evidence is closed, under Section 313(1)(b) Cr.P.C. the Court is duty bound under Section 313(4) Page No.# 10/19 Cr.P.C. to consider the same. The mere use of the word 'may' cannot be held to 12 confer a discretionary power on the court to consider or not to consider such defence, since it constitutes a valuable right of an accused for access to justice, and the likelihood of the prejudice that may be caused thereby. Whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available is an entirely different matter. If there has been no consideration at all of the defence taken under Section 313 Cr.P.C., in the given facts of a case, the conviction may well stand vitiated. To our mind, a solemn duty is cast on the court in dispensation of justice to adequately consider the defence of the accused taken under Section 313 Cr.P.C. and to either accept or reject the same for reasons specified in writing.
17. Unfortunately neither Trial Court nor the High Court considered it necessary to take notice of, much less discuss or observe with regard to the aforesaid defence by the appellant under Section 313 Cr.P.C. to either accept or reject it. The defence taken cannot be said to be irrelevant, illogical or fanciful in the entirety of the facts and the nature of other evidence available as discussed hereinbefore. The complete non-consideration thereof has clearly caused prejudice to the appellant. Unlike the prosecution, the accused is not required to establish the defence beyond all reasonable doubt. The accused has only to raise doubts on a preponderance of probability as observed in Hate Singh Bhagat Singh vs. State of Madhya Bharat, AIR 1953 SC 468 observing as Page No.# 11/19 follows :"
26. We have examined the evidence at length in this case, not because it is our desire to depart from our usual practice of declining to re-assess the evidence in an appeal here, but because there has been in this case a departure from the rule that when an accused person puts forward a reasonable defence which is likely to be true, and in addition is supported by two prosecution witnesses, then the burden on the other side becomes all the heavier because a reasonable and probable story likely to be true and pitted against a weak and vacillating case is bound to raise reasonable doubts of which the accused must get the benefit...."
20. The learned Senior Counsel for the appellant has submitted that the appellant is in custody since the date of the judgment and has already suffered a lot and the instant appeal is liable to be allowed.
21. Per contra, Ms. Begum, the learned Additional Public Prosecutor has submitted that though the case is based on circumstantial evidence, the circumstances are complete and linked which lead to only one conclusion which is towards the guilt of the appellant and no other hypothesis is possible. By drawing the attention of this Court to the depositions, more particularly that of PW4, the learned Additional Public Prosecutor has submitted that the PW4 had specifically stated that the deceased had told her that she did not set herself to fire and it was done by other person. The IO who was examined as PW 9 in his cross-examination had clarified that PW 4 had deposed before him that the appellant had set fire to the Page No.# 12/19 deceased.
22. The learned Additional Public Prosecutor has emphatically submitted that in the facts and circumstances of the given case, there would be application of Section 106 of the Evidence Act and explanation by the appellant is lacking. She has also drawn the attention of this Court to the discussion in the impugned judgment regarding Section 106 of the Evidence Act which finds place in paragraph 67. It is submitted that the learned Trial Judge has rightly applied the aforesaid provision of law and accordingly the conclusion arrived at is based on the materials of record which does not require any interference.
23. On the aspect of Section 106 of the Indian Evidence Act, the learned APP has relied upon the case of Trimukh Maroti Kirkan Vs. State of Maharashtra reported in (2006) 10 SCC 681. The following observations made by the Hon'ble Supreme Court are pressed into service:
"14. The question of burden of proof where some facts are within the personal knowledge of the accused was examined in State of West Bengal v. Mir Mohammad Omar & Ors. (2000) 8 SCC 382. In this case the assailants forcibly dragged the deceased Mahesh from the house where he was taking shelter on account of the fear of the accused and took him away at about 2.30 in the night. Next day in the morning his mangled body was found lying in the hospital. The trial Court convicted the accused under Section 364 read with Section 34 IPC and sentenced them to 10 years RI. The accused preferred an appeal against their conviction before the High Court and the State also filed an appeal challenging the acquittal of the accused for murder charge. The accused had not given any Page No.# 13/19 explanation as to what happened to Mahesh after he was abducted by them. The learned Sessions Judge after referring to the law on circumstantial evidence had observed that there was a missing link in the chain of evidence after the deceased was last seen together with the accused persons and the discovery of the dead body in the hospital and had concluded that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt. This Court took note of the provisions of Section 106 of the Evidence Act and laid down the following principle in paras 31 to 34 of the reports :
"31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.
32. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this.
33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the Page No.# 14/19 truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.
34. When it is proved to the satisfaction of the court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the court what else happened to Mahesh at least until he was in their custody."
Applying the aforesaid principle, this Court while maintaining the conviction under Section 364 read with Section 34 IPC reversed the order of acquittal under Section 302 read with Section 34 IPC and convicted the accused under the said provision and sentenced them to imprisonment for life.
Page No.# 15/19
15. In Ram Gulam Chaudhary & Ors. v. Sate of Bihar (2001) 8 SCC 311, the accused after brutally assaulting a boy carried him away and thereafter the boy was not seen alive nor his body was found. The accused, however, offered no explanation as to what they did after they took away the boy. It was held that for the absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they have murdered the boy. It was further observed that even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The accused by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference."
24. The learned APP accordingly submits that the present appeal is liable to be dismissed.
25. The rival submissions have been duly considered and the materials, including the TCRs placed before this Court have been carefully examined.
26. Admittedly, the present case hinges upon circumstantial evidence as there is no direct evidence in the form of eyewitness. To examine the present case, it would be necessary to sift the depositions and the materials on record. The FIR was lodged by PW1 on the basis of certain information. The deposition of PW1, was as per certain information received by her. In the cross-examination, however, she has deposed that it is the appellant Page No.# 16/19 and other relatives who had taken the deceased to the hospital. PW2, who is the father of the victim, has surprisingly not made any implication or accusation against the appellant and rather his deposition is in the line of innocence of the appellant. He had stated that he did not know why the case was lodged against the appellant and had also married his other daughter Fatima to the appellant after expiry of his elder daughter. He had also deposed that there were two sons of the parties and that, from the villagers, he came to learn that the appellant was innocent and that the deceased was a short-tempered lady who used to beat herself. He had made a categorical statement that he did not find any fault with the appellant.
27. PW3, who is a neighbour, was however declared as hostile. Nonetheless, the statements made by a hostile witness which are relevant can still be taken into consideration. PW3 had narrated that the deceased had herself poured kerosene and set her into fire. In the cross-examination, she had stated that at the time of the incident, the appellant was sitting with her on the road and on witnessing the incident, he had tried to douse the fire and the deceased had told her that she had set fire to herself.
28. PW4, who is the cousin of the deceased and also a neighbour, had narrated about hearing hue and cry and that the deceased had told that she did not set herself into fire and it was done by other person. It is however pertinent to note that the accused appellant as such, was not named.
29. PW5 is also a neighbour of the appellant who had deposed that the appellant was seen pouring water on the deceased when she was found to be on fire. As regards to statements towards the accusation that the Page No.# 17/19 appellant had fled when the neighbours had come and further that a dying declaration was made, it is found that in the cross-examination, he had stated that he did not remember telling the Police about the aforesaid two accusations. In this context, it would be necessary to examine the deposition of PW9 who is the IO who had made a categorical statement that PW5 did not make any such statement before him. It clearly appears that the aforesaid two accusations are mere improvements and are found to be contradictions which are proved by the fact that the PW5 did not deny the suggestion and had rather said that he did not remember telling the Police about the aforesaid two accusations.
30. PW6 who is also a neighbour has been declared hostile and his deposition would not be towards the guilt of the appellant. In fact, he had made a categorical statement in the cross-examination that he did not see how the fire was caught. Similarly, PW7 who is also a neighbour was declared hostile and in the cross-examination, she had narrated of hearing from the children that the deceased had set herself into fire. As noted above, the deposition of PW9 - the IO brings into light the contradictions in the deposition by the other witnesses, more particularly PW5.
31. The learned Senior Counsel for the appellant has strenuously urged regarding the requirement of motive in a case of circumstantial evidence. Though normally motive is required to be proved in a case which is based on circumstantial evidence, mere absence of any motive will not be fatal in all cases. In this connection, one may refer to the case of Surinder Singh Vs. The Union Territory of Chandigarh reported in (2021) 14 SCALE 223 wherein the following observations were made by the Hon'ble Supreme Court-
Page No.# 18/19 "24. We are thus of the considered opinion that whilst motive is infallibly a crucial factor, and is a substantial aid for evincing the commission of an offence but the absence thereof is, however, not such a quintessential component which can be construed as fatal to the case of the prosecution, especially when all other factors point towards the guilt of the accused and testaments of eyewitnesses to the occurrence of a malfeasance are on record."
32. Be that as it may, the facts and circumstances of each case have to be examined to come to a decision as to whether the conviction and sentence has been rightly arrived at. In the present case which is based on circumstantial evidence, we do not find that from the inception till the completion, there is an unbroken chain of circumstance which has been able to be proved by the prosecution. The aspect of the appellant himself trying to douse the fire which has been proved by the witnesses would also be a relevant factor. We also find force in the contention advanced by the learned Senior Counsel for the appellant that the use of kerosene to set ablaze the deceased which caused her death has not been proved at all by any scientific or medical evidence. The PM Report does not even mention any use of kerosene. The aspect of inquest being done has also not been clearly reflected. Though the records which have been perused has a carbon copy of an inquest report with PW1 written, there is no exhibit mark and the document does not appear to have been proved. At this moment, it can be seen that there is some reference about an inquest report by PW2 which was also stated to be proved as Exhibit 1. However, perusal of the records would show that exhibit 1 is the Post Mortem Report.
33. With regard to the application of Section 106 of the Evidence Act, Page No.# 19/19 there is no doubt that in particular cases, the said provision of law would be applicable. However, as laid down by the Hon'ble Supreme Court in the case of Reena Hazarika (supra), the said application of Section 106 would come only when the prosecution can successfully discharge its burden to prove the case beyond all reasonable doubt.
34. In view of the aforesaid facts and circumstances, we are of the considered opinion that the materials in this case would not be sufficient to come to a conclusion of guilt and that the same has been proved beyond all reasonable doubt. We are of the opinion that the benefit of doubt is to be given to the appellant. Accordingly, we set aside the impugned judgment impugned judgment dated 02.03.2020 and sentence dated 07.03.2020 passed by the learned Additional Sessions Judge (FTC), Darrang, Mangaldoi in Sessions Case No. 193(DM)/2017 under Section 302 of the IPC [corresponding to Section 103 BNS]. The appellant is accordingly directed to be released forthwith unless he is wanted in any other case.
35. The appeal accordingly stands allowed.
36. Send back the TCRs.
JUDGE JUDGE Comparing Assistant