Gauhati High Court
Amir Hamja vs The State Of Assam And Anr on 4 March, 2020
Equivalent citations: AIRONLINE 2020 GAU 454
Bench: Suman Shyam, Hitesh Kumar Sarma
Page No.# 1/22
GAHC010044342018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A. 109/2018
1:AMIR HAMJA
S/O LATE HAJI ASHRAB ALI, PERMANENT R/O VILL. JAMUNA
MOUDANGA, KRISHIPAM NIGAM, P.S. MURAJHAR, MOUZA NAMATI, PIN
782445, DIST. NAGAON, ASSAM.
VERSUS
1:THE STATE OF ASSAM AND ANR
REPRESENTED BY PP. ASSAM.
2:MD. TAYAB ALI
S/O LATE HAJI ASHRAB ALI
R/O VILL. JAMUNA MOUDANGA
KRISHIPAM NIGAM
P.S. MURAJHAR
MOUZA NAMATI
PIN 782445
DIST. NAGAON
ASSAM
Advocate for the Petitioner :
Advocate for the Respondent : PP, ASSAM
BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE HITESH KUMAR SARMA Page No.# 2/22 JUDGMENT AND ORDER (CAV) Date : 04-03-2020 (Suman Shyam.J) This Criminal Appeal filed under Section 374(2) of the Code of Criminal Procedure is directed against the judgment and order dated 290.12.2017 passed by the learned Additional District & Sessions Judge, Hojai, Sankardev Nagar in connection with Sessions Case No.448/2013. By the impugned judgment and order dated 20.12.2017, the sole appellant has been convicted under section 302 of the Indian Penal Code (IPC) for committing the murder of his wife Asiya Begum and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs.10,000/-, and in default thereof, to undergo rigorous imprisonment for another six months.
2. The prosecution case, as unfolded during trial, is that the accused/appellant is the husband of the victim Asiya Begum. On 03.07.2013, a quarrel took place between the accused and his wife Asiya whereafter, the accused had killed his wife by hacking her with a "dao". The victim had died immediately. The accused was then seen loitering and shouting at the bank of a pond with a "dao" in his hand.
3. Upon receipt of telephonic information from Md. Fakar Uddin (PW-2) G.D. Entry No.39 dated 03.07.2013 was made by the Officer-in-Charge of Debasthan Police Outpost coming under Murajhar Police Station. Thereafter, the matter was informed to the Officer-in-Charge, Murajhar Police Station. On 03.07.2013, Md. Tayab Ali, i.e. the elder brother of the accused had lodged an ejahar with the Officer-in-
Page No.# 3/22 Charge, Murajhar Police Station informing him that due to a quarrel that took place between his younger brother Amir Hamja and his sister-in-law Mustt. Asiya Begum, his brother had killed his wife inside his own house by a sharp weapon. On receipt of the ejahar, Murajhar P.S. Case No.133/2013 was registered under section 302 of the IPC and the matter was taken up for investigation. Upon completion of investigation, police had laid charge-sheet against the accused under Section 302 of the IPC. The accused had pleaded innocence. As such, the matter went up for trial.
4. In order to bring home the charge, the prosecution side had examined as many as 12 (twelve) witnesses. After recording the evidence of the prosecution side, the statement of the accused was recorded under Section 313 of the Cr.P.C. The accused had denied all the incriminating circumstances put to him and had also declined to adduce evidence in his defense.
5. At the very outset, it would be significant to note here-in that the statements of Mustt. Afiya Begum (PW-7) i.e. the sister of the accused, Mustt. Afiya Khatun (PW-8) i.e. the wife of the informant and Muksidul Islam (PW 9) i.e. the son of the deceased had been recorded under Section 164 of the Cr.P.C. wherein, all of them had stated that they had seen the accused person hack his wife to death with a dao. However, during their deposition before the court, the PWs- 7, 8 and 9 had not stated the said fact as a result of which, PWs-7 and 8 were declared as hostile witnesses. Likewise, PW-1 also did not depose before the Court the fact stated in the F.I.R. to the effect that the accused had killed his wife Asiya Begum inside his own house by a sharp weapon as a result of which, he was also declared as a hostile witness.
Page No.# 4/22
6. Taking note of the evidence brought on record which included the testimony of the doctor (PW-4), who had conducted the post-mortem examination and the evidence of PW-11 Ms. Mili Hussain, Judicial Magistrate First Class (JMFC), who had recorded the statements of PWs-7, 8 and 9 under Section 164 of the Cr.P.C. the learned trial court had held that the murder charge brought against the accused was established beyond all reasonable doubt. The learned trial court was also of the view that since the occurrence took place inside the house, there was a duty upon the accused under section 106 of the Evidence Act, 1872 to explain the circumstances under which his wife had suffered fatal injuries but the accused had failed to offer any explanation. Taking note of the law laid down by the Supreme Court in the case of Trimukh Maroti Kirkan vs. State of Maharashtra reported in (2006) 10 SCC 681 the learned court below has held that the failure on the part of the accused to offer any explanation as regards the circumstances leading to the death of the deceased would operate as an important link to connect the accused to the homicidal death of his wife.
7. Assailing the impugned judgment and order dated 20.12.2017 Mr. P. K. Munir, learned counsel appearing for the appellant has argued that the learned court below has committed manifest error in placing reliance upon the statements of PWs-7 and 8 recorded under section 164 Cr.P.C. and treating them as eye-witnesses to the occurrence although such statement recorded under section 164 CrPC could not have been treated as substantive evidence. Mr. Munir submits that the statements recorded under Section 164 Cr.P.C. can be relied upon either for the purpose of corroborating the statements made by the witness or to contradict the same but Page No.# 5/22 such statements cannot be the basis of conviction. In support of his aforesaid argument Mr. Munir has relied upon and referred to a decision of the Supreme Court rendered in the case of R. Shaji Vs. State of Kerala reported in (2013) 14 SCC 266 and a decision rendered by the Division Bench of this Court in the case of Bisweswar Baori @ Khetrapal Vs. State of Assam reported in 2002 (2) GLT 395.
8. Urging that the prosecution has failed to prove the chain of circumstances in this case so as to establish the guilt of the accused, Mr. Munir has argued that the I.O. (PW-12) did not send the "dao" seized from the accused for FSL test and therefore, there is no proof of the fact that the "dao" seized by the police was actually used to inflict cut injuries upon the deceased. According to Mr. Munir, the failure on the part of the I.O. to send the "dao" for FSL test is a serious lapse which signifies a break in the chain of circumstances so as to prove the charge brought against the accused beyond reasonable doubts.
9. Referring to the observations made by the learned trial court regarding failure on the part of the accused to discharge his burden under Section 106 of the Evidence Act, Mr. Munir has relied upon a decision of this Court rendered in the case of Tunu Urang Vs. State of Assam [2019 SCC Online Gau 5528] to argue that in a criminal trial, the burden to establish the charge and prove the guilt of the accused beyond all reasonable doubt is always upon the prosecution and section 106 of the Evidence Act would not relieve the prosecution of its burden.
10. Responding to the above arguments, Mr. R. Baruah, learned Addl. Public Prosecutor, Assam, has argued that although the witnesses PWs-7, 8 and 9 did not Page No.# 6/22 depose before the court in terms of their statement recorded by the Magistrate under Section 164 of the Cr.P.C., yet, their statements in the form of Exts-4, 5 and 6 have not only been brought on record but those have also been proved by the PW-
11. Mr. Baruah submits that the statements made by the aforesaid witnesses having been brought on record and those having been proved by the Magistrate who had recorded the same, the same can be treated as evidence and therefore, it was legally permissible for the learned court below to take cognizance of such evidence.
11. It is also the submission of Mr. Baruah that over and above the statements of the three witnesses recorded under section 164 of the Cr.P.C. the prosecution side had adduced sufficient evidence so as to establish the chain of circumstances which would unequivocally go to show that it was none other than the accused/ appellant who had killed his wife by hacking her with a dao. As such, submits Mr. Baruah, the appellant has been rightly convicted by the trial court and as such, there is so scope for this court to interfere with the conviction of the appellant in this case.
12. We have carefully gone through the materials available on record and have also bestowed our anxious consideration upon the submissions made at the bar.
13. As noticed above, the appellant in this case has been accused of having murdered his wife inside the house by hacking her with a dao. The Informant (PW-1) has stated that the accused is his younger brother and deceased Asiya is his sister-in- law. PW-1 has deposed before the court that on the day of occurrence, when he was in the market, he had heard that the accused had murdered his wife. PW-1 has also stated that he saw blood and injury on her person. This witness has also stated Page No.# 7/22 that he had lodged an ejahar before the police and the police had interrogated him. PW-1, however, did not state in his deposition that his brother (accused) had killed his wife Asiya Begum inside his house. The witness was declared hostile. During his cross-examination, he had denied of having written in the ejahar that his brother Amir had murdered Asiya or that he had told the police about the same.
14. PW-2, Md. Fakaruddin has deposed that on the day of occurrence, Sukur had informed him over telephone that Amir Hamja i.e. the accused, after hacking his wife, was shouting. He then called the In-charge of Debasthan Police Outpost and went to the residence of the accused. Police arrived there after him and seized a "dao" from the hands of the accused. PW-2 has also stated that the Circle Officer of Doboka came and held inquest on the dead body of the victim in his presence. PW-2 has proved the seizure-list Ext-1 as well as the inquest report Ext-2 and has also confirmed that Material Ext-1 was the "dao" seized by the police. The witness has also deposed that he had heard from Amir Hamja that his wife had an illicit relationship with someone and for that reason, accused had murdered his wife. The aforesaid testimony of PW-2 was not specifically assailed by the defence counsel during the cross-examination of this witness.
15. PW-3, Md. Hafijuddin Khan is a neighbour of the accused and he has deposed before the Court that on the day on which the incident took place, he had heard hue and cry and went to the house of Hamja where he saw that the accused was cutting tree with a dao and was shouting that he had finished his wife because his wife had an illicit relationship with someone. PW-3 has also stated that he found Page No.# 8/22 Hamja's wife lying in the kitchen and her body was smeared with blood. During his cross-examination, PW-3 has denied the suggestion that Hamja's wife had committed suicide. The testimony of this witness could not also be shaken during his cross- examination.
16. PW-4, Dr. Pulin Bhattacharjee was the doctor on duty who had conducted the post-mortem examination on the dead body of the deceased. PW-4 had proved the post-mortem report Ext-3. PW-4 has opined that death of the deceased was due to shock and hemorrhage caused by the injuries sustained. As per the testimony of PW- 4, the following wounds were found in the body of the deceased :-
"On examination I found with multiple injury on the person of Asiya Beugm. Injury were sharp cut injury of rt. Hand on medial side of 2" x 1" size and involves muscles and bones (4 th and 5th metacarpal). Communited fracture of 4th and 5th meta carpel bones at the side of above injury. Incised wound between ring and middle finger of 1 ½" X ½" x skin deep size. Incised wound terminal falenges (sic) of rt. Middle finger of ½" X ½" X bone deep size. Transverse fracture of terminal phalanx of rt. Middle finger multiple stabbing, stab wounds in front of chest and abdomen (3 over chest and 4 over abdomen) and stab wound are identical in size and shape, i.e. ½" x ¼" x muscle deep.
Incised wound back in mid line below neck of 1" x ½" x muscle deep size.
Incised wound back on rt. side at the level of 10 thoracic vertebra of 1" x ½" x skin deep size.
Incised wound rt. fore arm on posterior aspects of 2 ½" x 1 ½" x skin deep size.
Page No.# 9/22 Cranial and spine canal --
Sharp cut injury over fore head of 2" x ½" x muscle deep size. Skull and vertebrae healthy. Membrane of brain intact. Brain and spinal canal healthy. In thorax sharp cutting injury of chest posteriorly on right side of 2 ½" x 1" x outer 1/3 of thoracic cavity deep size. 9th, 10th and 11th ribs cut through at the corresponding size above injury. Stab wound as described.
Incise at the corresponding injury pleural cavity is full of blood.
Larynx and trachea healthy. Rt. lung incised through lower lobes is collapsed. Left lung healthy. Hearth is empty. Vessels are collapsed.
In abdomen stab wound as described early. Paritonium intact. Mouth, pharynx esophagus healthy. Stomach is pale. Intestine, large intestine pale. Liver, kidney, spleen, bladder are healthy.
In my opinion person died for shock and haemorrhage caused by the injuries sustained."
17. Md. Nizamuddin Khan i.e. PW-5 is another witness who lived in the neighbourhood of the accused. PW-5 has deposed that on the day on which the incident took place, he was at the market when Abul had telephoned Farooq and Farooq had informed Nayak of the VDP that accused Amir had killed his wife. PW-5 has stated that Farooq had also informed him about it and then he went to Amir's house and saw him with a dao in his hand. According to PW-5, everybody was afraid to go inside the house but when police came then he went inside the house and saw the dead body of Amir's wife lying in the kitchen. The police had seized the dao from Amir vide seizure-list Ext-1. This witness had proved Ext-1 seizure-list. During his cross- examination, the testimony of this witness also could not be shaken.
18. PW-6, Bilaluddin appears to have accompanied PW-5 to the house of Amir.
Page No.# 10/22 The version of this witness is practically a reiteration of the evidence adduced by PW-
5. However, besides corroborating the version given by PW-5, PW-6 has also stated that when he went to the house of Amir he saw him moving around with a dao in his hand and was striking a tree.
19. PW-7 Afiya Begum, is the sister of the informant as well as the accused. The said witness had turned hostile and had denied the fact that the accused had dealt dao blows on the whole body of his wife. PW-7 had also denied the suggestion that she was trying to favour the accused since he was her younger brother. It is to be noted here-in that in her statement recorded by the Magistrate under 164 Cr.P.C, this witness had stated that her brother Amir Hamja had dealt dao blows on the person of his wife Asiya Khatoon because of Mahor Ali. She had also stated that she went to save her but was pushed by the accused. Then she offered water to the victim.
20. Likewise, PW-8, Afiya Khatoon, i.e. the wife of the informant, also did not support her earlier version as recorded under section 164 Cr.P.C. and therefore, she was also declared hostile. During her cross-examination, PW-8 had denied of having adduced evidence before court or that she had stated before the Magistrate that when she had gone to the place of occurrence she had seen Asiya lying with bleeding injuries on her person; that she had become unconscious and that before becoming unconscious, she had seen Amir Hamja waiting nearby with a dao in his hand.
21. PW-9, Muksidul Islam, is the son of the accused and the victim. At the time of the occurrence, PW-9 was a minor aged about 9 years. He has deposed before the Page No.# 11/22 court that his mother was beaten and thus sustained injuries out of which she died. But PW-9 has not deposed in the manner in which his statements was recorded under Section 164 of the Cr.P.C where he had stated that his father had struck his mother with a dao and he had witnessed the incident. The defense side had declined cross-examination of this witness.
22. PW-10, Md. Tomiruddin, has deposed that the accused Amir Hamja is his son- in-law. About 2/3 days before the occurrence, the accused had informed his sister Alekjan that the accused had poured chili water on the person of his daughter i.e. wife of the accused. Coming to know about the same, his sister Alekjan told the accused that she would bring Asiya to their house. Then the accused replied "I will not let her go, I will cut her into pieces." The prosecution has not examined Alekjan as a witness. Therefore, evidence of the PW-10 can at best be treated as hearsay.
23. Ms. Mili Hussain (PW-11) was the Judicial Magistrate First Class (JMFC) posted at Hojai, Sankardev Nagar, who had recorded the statements of the three witnesses, viz., Afiya Begum (PW-7), Afiya Khatoon (PW-8) and Muksidul Islam (PW-9) under section 164 of the Cr.P.C. PW-11 has stated in her deposition that on 05.07.2013, while she was on duty, the I.O. of Murajhar P.S. Case No.133/2013 had made a prayer before her for recording the statements of the aforesaid witnesses. After considering the prayer of the I.O. she allowed the same and accordingly, recorded their statements on being satisfied that the witnesses wanted to make the statements voluntarily.
24. PW-11 has also stated that the statements of the witnesses were recorded on Page No.# 12/22 oath. Since the witness Muksidul Islam was a minor, aged about 9 years, therefore, in order to test his capability and intelligence so as to ascertain whether he can give rational answers, certain questions were put to him and on being satisfied on such count, the statement of the minor was recorded by her.
25. PW-11 has proved Ext-4 i.e. the statement of Afiya Begum (PW-7), Ext-5 which is the statement of Afiya Khatoon (PW-8) and Ext-6 i.e. the statement of Muksidul Islam (PW-9), all recorded under section 164 of the Cr.P.C.
26. PW-12, Sri Bhadra Kt. Gogoi, was the Officer-in-Charge of Debasthan Police Outpost when the incident took place and he has deposed before the Court that on the date of occurrence i.e. 03.07.2013 at around 12.00 p.m. Md. Fakaruddin (PW-2), the Secretary of the Village Defense Party (VDP), Moudanga Krishi Pam Village, had informed him over phone that a man named Md. Amir Hamja had hacked his wife to death with a dao. On receipt of such information, he had prepared a G.D. entry being Entry No.39 dated 03.07.2013 and informed the Officer-in-Charge of Murajhar Police Station over telephone. Thereafter, he had proceeded to the place of occurrence. PW-12 has also stated that on reaching the place of occurrence, he found the accused moving around with a dao on the bank of the pond and arrested him. In the meantime, the Officer-in-Charge of Murajhar Police Station had also arrived at the place of occurrence. PW-12 has further stated that he had seized the dao from the hands of the accused after preparing a seizure list; the wife of the accused Asiya Begum was lying dead inside his house with injuries on her person; the Circle Officer, Doboka, had held inquest. PW-12 has also deposed that he had Page No.# 13/22 interrogated the witnesses, drew up a sketch map of the place of occurrence and sent the dead body for post mortem and the accused to the Police Station. PW-12 has confirmed that PW-1, Tayab Ali, had submitted the written ejahar before the Murajhar Police Station and that he had sent the "dao", which he had seized through the seizure -list, to the court. However, after his transfer, he had handed over the Case Diary to the Officer-in-charge and later on, S.I. Santanu Rai was entrusted with the investigation of the case who had collected the post-mortem report and thereafter, submitted charge-sheet against the accused under section 302 of the IPC.
27. From a perusal of the impugned judgment and order dated 20.12.2017, we find that the learned court below has held that PWs 7 and 8 were the eye witnesses to the occurrence. In so far as the evidence of PWs 7 and 8 is concerned, the learned court below has held that although the statements of these witnesses recorded under section 164 Cr.P.C cannot be treated as substantive evidence, yet, it has come out from the testimony of the Magistrate (PW-11) that both these witnesses were inside the house when the occurrence took place and hence they were eye witnesses to the occurrence. Therefore, it is apparent that besides other evidences available on record, the statement of PWs 7 and 8 recorded under section 164 CrPC as exhibited by the PW-11 was also relied upon by the learned trial court for holding the accused guilty of the offence committed under section 302 of the IPC. The first question that would, therefore, arise for consideration in this case, is as to whether, the statements of the PWs 7 and 8 recoded under section 164 Cr.P.C. exhibited by the PW-11 could at all have been relied upon by the learned court below for convicting the accused.
Page No.# 14/22
28. Law is well settled that statement recorded under section 164 Cr.P.C. cannot be treated as substantive evidence but the same can only be used for the purpose of corroboration. In the case of Utpal Das and another vs State of West Bengal reported in (2010) 6 SCC 493 the Supreme Court has held that the statements recorded under section 164 Cr.P.C can never be used as substantive evidence of truth of facts but may be used for contradiction or corroboration of a witness who made it.
29. Similar observations have been in the case of R. Shaji (supra) relied upon by Mr. Munir wherein it has been held that :-
"26. Evidence given in a court under oath has great sanctity, which is why the same is called substantive evidence. Statements under Section 161 Cr.P.C. can be used only for the purpose of contradiction and statements under Section 164 Cr.P.C. can be used for both corroboration and contradiction. In a case where the magistrate has to perform the duty of recording a statement under Section 164 Cr.P.C., he is under an obligation to elicit all information which the witness wishes to disclose, as a witness who may be an illiterate, rustic villager may not be aware of the purpose for which he has been brought, and what he must disclose in his statements under Section 164 Cr.P.C. Hence, the magistrate should ask the witness explanatory questions and obtain all possible information in relation to the said case.
27. So far as the statement of witnesses recorded under Section 164 is concerned, the object is twofold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement, and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in Court should be discarded, is not Page No.# 15/22 at all warranted. (Vide: Jogendra Nahak & Ors. v. State of Orissa & Ors., AIR 1999 SC 2565; and Assistant Collector of Central Excise, Rajamundry v. Duncan Agro Industries Ltd. & Ors., AIR 2000 SC 2901).
28. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 Cr.P.C., can be relied upon for the purpose of corroborating statements made by witnesses in the Committal Court or even to contradict the same. As the defense had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 Cr.P.C., such statements cannot be treated as substantive evidence."
30. Likewise, a Division Bench of this Court has held in the case of Bisheswar Baori (supra) that while a statement of a witness recorded under Section 161 Cr.P.C. can be used only for the purpose of proving contradictions by the prosecution, statement recorded under section 164 of the Cr.P.C. may be used for contradiction as well as corroboration. We do not wish to burden this judgment by multiplying the authorities in support of this well settled proposition of law. What would however, crystallize from the decisions referred to above is that the statement of any witness recorded under section 164 Cr.P.C cannot be treated as a piece of substantive evidence but such statement can only be used for contradicting or corroborating the witness.
31. In the case in hand, it is no doubt correct that the Magistrate(PW-11) who had recorded the statements of PWs 7, 8 and 9 had exhibited their statements recorded under section 164 Cr.P.C. wherein they have stated to have seen the accused assault his wife. But in their deposition, those witnesses did not say so. The prosecution has also not confronted these witnesses with their previous statements recorded under section 164 Cr.P.C.
Page No.# 16/22
32. It is also to be noted that the PW-11 cannot prove the fact that PWs-7 and 8 were the eye-witnesses to the occurrence. PW-11 could only testify to the effect that she had recorded the statement of these witnesses and could also exhibit these statements. But the contents thereof can only be proved by leading cogent evidence on record which had not been done in this case. Moreover, the defence side also did not have any opportunity to cross examine these witnesses so as to test the veracity of what had been stated by them before the Magistrate. Under the circumstances, regardless of how convincing such statements recorded under section 164 Cr.P.C may appear to the court, the same could not have been treated as substantive evidence. Therefore, while appreciating evidence, the court will have to go as per the version of these witnesses as deposed before the court and not on the basis of what had been recorded by the Magistrate under section 164 CrPC.
33. In the present case, the fact remains that PWs 7 and 8 have not admitted before the court of having seen the accused assault the victim with a dao. As such, these witnesses, in our view, cannot be treated as eye witnesses to the occurrence. Such being the position, the learned court below was not correct in relying upon statements of PWs-7 and 8 recorded under section 164 Cr.P.C so as to come to a conclusion that they were the eye witnesses to the incident.
34. Having held as above, we would now be called upon to examine as to whether, even dehors the statements of PWs 7 and 8, the circumstantial evidence brought on record by the prosecution is sufficient to prove the charge brought against the accused beyond all reasonable doubt.
Page No.# 17/22
35. As noted above, the medical evidence brought on record clearly establishes the fact that the deceased had suffered a homicidal death on account of the multiple cut injuries sustained in her body. It has also come out from the evidence of PW-2, 3, 5 and 6 that the incident took place inside the house of the deceased and accused was present in the house at that time. PWs 3 and 6 have stated that when they reached the house of the accused he was seen moving around with a dao in his hand and was striking at the tree. PW-2 had deposed that the dao was seized from the accused. The said fact finds corroboration from the evidence adduced by the PW-12 who is the I.O. in this case.
36. PW-12 had stated that he had reached the place of occurrence soon after the incident and found the accused moving around with a "dao". He then arrested the accused and had also seized the "dao" from the hands of the accused. PW-12 also had also seen Ashiya Begum lying dead inside the house with injuries in her person.
37. We also find from the records of this case that the PW-3 had deposed before the court that he had heard the accused shouting that he had finished his wife because she had an illicit relationship with someone but there is no cross-examination of this witness on such count. As a matter of fact, PW-3 had denied the suggestion made during his cross -examination that the deceased had committed suicide.
38. From the nature of injuries reflected in the post-mortem report, it is not possible to conclude that the victim had committed suicide. The multiple injury marks seen in the body of the victim were of such nature which could only be inflicted with a sharp Page No.# 18/22 weapon such as "dao". We are therefore, of the opinion that the prosecution has succeeded in leading cogent evidence towards establishing all the circumstances consistent only with the hypothesis of guilt of the accused.
39. Coming to the burden of the accused under section 106 of the Evidence Act, it has been held by the Hon'ble Supreme Court in the case of Trimukh Maroti Kirkan (supra) that when an offence like murder is committed in secrecy inside a house, although the initial burden to establish the case will be on the prosecution but the nature and amount of evidence to be led by the prosecution to establish the charge cannot be of the same degree as in the case of circumstantial evidence. In view of section 106 of the Evidence Act there would be a corresponding burden on the inmates of the house to give proper explanation as to how the crime was committed.
40. Similarly, in the case of State of Rajasthan Vs. Kashi Ram reported in (2006) 12 SCC 254, it was held by the Hon'ble Supreme Court that in case of any fact within the special knowledge of a person, as per section 106 of the Evidence Act, the burden would be upon him to prove that and therefore, in a case resting on circumstantial evidence, if the accused fails to offer reasonable explanation in discharge of the aforesaid burden, then in that event, the same itself would provide an additional linkage in the chain of circumstances proved against the accused.
41. In this case, although the incident had evidently occurred inside the house of the accused and in his presence, yet, we find that the accused has failed to offer any plausible explanation as to how the deceased had suffered such multiple injuries on her body leading to her death. In his statement recorded under section 313 Page No.# 19/22 Cr.P.C. although the accused has stated that the victim has been killed by someone with whom she had an illicit relationship, we do not find the version of the accused to be believable at all. Under ordinary circumstances, it is difficult to imagine a situation where another person having an illicit relationship with his wife could enter the house of the accused and kill his wife in his presence, and the accused would not make any attempt either to save her or to retaliate against the assailant. Under the circumstances, we are of the opinion that the learned trial court has rightly held that the accused had failed to discharge his burden cast under section 106 of the Evidence Act and therefore, his failure on such count would be an additional link in the chain of circumstances proved against the accused.
42. This brings us to the alternative prayer of the appellant's counsel to convert the conviction of the appellant to one under Section 304 Part-II of the IPC on the ground that, even assuming that it is the accused who had killed his wife, even then, the incident had evidently occurred due to the anger generated when the accused had learnt about the illicit relationship maintained by his wife. Contending that the discovery of illicit relationship maintained by the wife would be sufficient provocation for a husband to fatally assault his wife Mr. Munir has submitted that there was no intention to kill. In support of his aforesaid argument, Mr. Munir has relied upon the decision of the Supreme Court in the case of K. M. Nanavati Vs. State of Maharashtra reported in AIR 1962 SC 605.
43. In the case of K.M. Nanavati (supra) the wife of the accused has confessed to the illicit relationship she was having with the victim. Enraged by the conduct of the Page No.# 20/22 victim the accused had entered his house and shot the victim dead. Thereafter, he had surrendered before the police. The accused was charged under section 302 and 304 Part I of the IPC. The Jury found him not guilty. But the Sessions Judge did not agree with the verdict of the Jury and referred the matter to the Bombay High Court along with his opinion. The Division Bench of the High Court had found the accused guilty of an offence under section 302 of the IPC and sentenced him to undergo rigorous imprisonment for life. In the appeal preferred by the accused before the Supreme Court, a plea was taken on the behalf of the accused that he had acted under grave and sudden provocation having lost his power of self control after the confession of illicit relationship maintained by his wife with the victim and therefore, this case would fall under Exception-I of section 300 of the IPC. Rejecting the said contention, the Supreme Court had held that when the wife of the accused had confessed to her illicit intimacy with the victim, the later was not present. From the conduct of the accused, it transpired that he had not lost his self control but was only thinking about the future of his wife and children. Observing that there was more than three hours that had lapsed between the time since his wife had confessed of the adultery and when the accused had shot dead the victim, the Supreme Court has held that there was sufficient time for the accused to regain his self control. On such ground the plea of treating the charge under the Exception-1 of Section 300 of the Indian Penal Code was rejected.
44. In the case in hand, the materials available on record suggests that the accused had killed his wife on the ground that she was having an illicit relationship with another person (Mohor Ali). There is no evidence to indicate as to when the Page No.# 21/22 accused had come to know or as to when he had started suspecting that his wife was having an illicit relationship. PW-10 had stated that he had learnt through his sister Alekjan that about 2/3 days before the occurrence, the accused had threatened to cut the victim into pieces. Save and except the testimony of PW-10 there is nothing on record to even remotely indicate the time gap between the occurrence and the knowledge of the accused about the illicit relationship of his wife. However, the evidence of PW-10 has already been discarded as hearsay evidence. Therefore, there is nothing on record to throw light on the aforesaid aspect of the matter.
45. As noted above, PW-3 had stated that the accused had admitted to have killed his wife for having an illicit relationship. But in his statement recorded under section 313 Cr.P.C., the accused had not supported the said version and had denied his role in the death of his wife. The accused has put the blame on another person for killing his wife. Therefore, there is not an iota of evidence on record to show that the accused had acted under grave and sudden provocation having lost his power of self control. Under the circumstances, the plea raised by Mr. Munir seeking conversion of the conviction to one under section 304 Part- II of the IPC fails and is hereby rejected.
46. For the reasons stated above, we are of the unhesitant opinion that the charge brought against the accused under section 302 of the IPC has been proved by the prosecution beyond all reasonable doubt.
We therefore, hold that the impugned judgment and order dated 20.12.2017 does not suffer from any infirmity warranting interference by this court.
Page No.# 22/22 The appeal is accordingly dismissed.
Send back the LCR.
JUDGE JUDGE Comparing Assistant