Gauhati High Court
Page No.# 1/26 vs The State Of Assam And Anr on 15 March, 2022
Author: Suman Shyam
Bench: Suman Shyam, Robin Phukan
Page No.# 1/26
GAHC010018702015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./199/2015
SRI BABUL SAIKIA and 4 ORS
S/O LATE DEHIRAM SAIKIA
2: JAYANTA SAIKIA
S/O SRI BABUL SAIKIA
3: SMTI INDUMOTI SAIKIA
W/O SRI BABUL SAIKIA
4: SMTI DIPALI SAIKIA
5: SMTI MAMONI SAIKIA
BOTH ARE DAUGHTER OF SRI BABUL SAIKIA
ALL ARE R/O VILL. NANOI KACHUPIT GAON
P.S. NAGAON SADAR NANOI OUT POST
DIST. NAGAON
ASSAM
VERSUS
THE STATE OF ASSAM and ANR
REPRESENTED BY THE LEARNED PUBLIC PROSECUTOR, GAUHATI HIGH
COURT, GUWAHATI.
2:INDRA KANTA BORAH
S/O LATE SONARAM BORAH
R/O NONOI MIKIRPAR
URIA GAON
P.S. NAGAON SADAR
DIST. NAGAON
ASSAM
Advocate for the Petitioner : MR.P P BORTHAKUR
Advocate for the Respondent :
Page No.# 2/26 BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE ROBIN PHUKAN JUDGMENT & ORDER (CAV) Date : 15-03-2022 (Suman Shyam, J) Heard Mr. A. Chamuah, learned counsel for the appellants. We have also heard Ms. S. Jahan, learned Addl. P.P. Assam appearing for the State. None has appeared for the informant/ respondent in this case.
2. The five appellants, have approached this Court by presenting the instant appeal against the common judgment dated 13-07-2015 passed by the learned Sessions Judge, Nagaon in Sessions Case No. 104(N)/ 2009 convicting them under Section 302 read with Section 34 of IPC and sentencing each of them to undergo rigorous imprisonment for life and also to pay fine of Rs. 10,000/- each with default stipulation.
3. The prosecution case, as unfolded from the materials available on record, is to the effect that the victim Tuni Bora had eloped with the appellant No. 2 Jayanta Saikia and got married with him about 1 year 4/5 months prior to the date of the incident. On 26-04- 2009, Tuni Bora committed suicide in the premises of the house of the appellants by hanging herself with a rope from a (Jamun) blackberry tree. According to the prosecution, the victim was compelled to commit suicide being unable to withstand the torture meted out to her by the accused persons.
4. On 27-04-2009, Sri Indra Bora, i.e. the father of the victim had lodged an ejahar Page No.# 3/26 with the Officer-in-Charge of Nonoi Police Outpost informing him that his daughter, having been unable to face harassment as well as mental and physical torture meted out by her husband Jayanta Saikia, had committed suicide on 26-04-2009 by hanging herself from a "rose apple tree" behind their house. Upon receipt of the FIR, the Police from the Nonoi Outpost made G.D. entry No. 376, dated 27-04-2009 and forwarded the FIR to the Officer-in-Charge (O/C) of Nagaon Police Station for registering a case. Accordingly, Nagaon P.S. Case No. 534/2009 was registered under Section 498(A)/306 IPC against all the accused persons, who are the members of the same family and the matter was taken up for investigation. On completion of investigation, charge-sheet was laid against the five appellants/accused persons viz. Babul Chandra Saikia @ Bohola, Jayanta Kumar Saikia, Indumati Saikia, Dipali Saikia and Mamoni Saikia under Section 498(A)/302 IPC. Be it mentioned herein that Jayanta Saikia is the husband of the deceased, Babul Ch. Saikia and Indumati Saikia are his father and mother respectively and Dipali Saikia and Mamoni Saikia are his sisters. It appears from the record that on the basis of the charge-sheet submitted by the Investigating Officer (I/O), the learned Sessions Judge, Nagaon, by the order dated 12-08-2009, had framed formal charge against the accused persons under Section 306/ 498(A) read with Section 34 IPC. It further appears that subsequently, by another order dated 03-01-2015, the learned Sessions Judge had re-framed the charge under Section 302/34 of the IPC against all the accused persons.
5. Prosecution had examined 11 (eleven) witnesses so as to bring home the charge brought against the accused persons. Out of the eleven witnesses, PW-6 and PW-7 were recalled and examined twice. After recording of evidence of the prosecution side, the Page No.# 4/26 statement of the accused persons were examined and their statements recorded under Section 313 of the Cr.P.C., whereby they had denied all the incriminating circumstances put to them. On conclusion of trial, the learned Addl. Sessions Judge, Nagaon had held that since the accused persons were admittedly staying in the same house with the deceased on the day of the incident and the body of the deceased was found hanging from the tree in their back yard with one of her legs touching the ground and considering the fact that there is no proper explanation from the accused persons as to the circumstances under which the victim had died, the case of the prosecution stood fully established on the basis of circumstantial evidence. The learned trial court has also taken note of the evidence of the doctor (PW-8) who had opined that the death was on account of asphyxia due to strangulation and held that since the legs of the victim were touching the ground it could not be a case of suicidal hanging.
6. Mr. Chamuah, learned counsel for the appellants has assailed the impugned judgment on several grounds. According to Mr. Chamuah there is no evidence to show that there was acrimony between the victim and the appellants and the motive behind the alleged crime could not be established by the prosecution. Considering the fact that the house in which the appellants were residing did not have any concrete boundary wall, the premises were easily accessible to a third person. Therefore, the possibility of the victim either committing suicide or being murdered by any unknown person including brother of the deceased, as honour killing cannot be ruled out in this case. By referring to the decision of the Supreme Court rendered in the case of Bodhraj @ Bodha & Ors. Vs. State of J&K, reported in (2002) 8 SCC 45 and Dev Kanya Tiwari Vs. State of UP , Page No.# 5/26 reported in (2018) 5 SCC 734, Mr. Chamuah has argued that the prosecution has failed to establish the charge brought against the accused persons beyond reasonable doubt by adducing circumstantial evidence.
7. Referring to the medical evidence brought on record, it is the submission of Mr. Chamuah that the Postmortem Report (Ext-2) is inconclusive and the same is also full of contradictions. The learned counsel for the appellants has relied on the decision of the Supreme Court in Maula Bux & Ors. Vs. State of Rajasthan, reported in (1983) 1 SCC 379, Para- 4 to argue that some of the scratches/ injuries on the dead body might have been caused during the Postmortem Examination. However, since the doctor has failed to indicate as to how the injuries in the dead body had occurred, the same would not have any bearing in establishing the charge brought against the appellants. According to Mr. Chamuah the observations and findings of the Doctor in the Postmortem Report (Exhibit-2) do not conclusively establish that it is a case of homicidal death caused due to strangulation.
8. Contending that there is no admission of guilt from the accused persons in their statement recorded under Section 313 Cr.P.C., Mr. Chamuah has argued that the learned court below has committed an error in arriving at such a finding. The learned counsel submits that even assuming that the accused persons had admitted their guilt, even then, no conviction can be awarded merely on the basis of admission made by the accused under Section 313 Cr.P.C. In support of his above argument, Mr. Chamuah has relied upon the law laid down in the case of Reena Hazarika Vs. State of Assam, reported in (2019) 13 SCC 289.
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9. By relying upon the decision in the case of Natasha Singh Vs. CBI (State), reported in (2013) 5 SCC 741. The learned counsel has further argued that the provision of Section 311 Cr.P.C. cannot be misused by the trial court to recall witnesses so as to fill up the lacuna in the prosecution case. The learned counsel for the appellant further submits that there is no finding on meeting of minds of the accused persons showing common intent on their part to commit the alleged offence and hence, conviction of the accused with the aid of Section 34 of IPC is also bad in law.
10. Ms. S. Jahan, learned Addl. P.P. Assam, on the other hand, has argued that the opinion of the Doctor(PW-8) clearly goes to show that it is a case of homicidal death due to strangulation. The inquest report (Exhibit-4) supports the conclusion of the doctor. It is the submission of Ms Jahan from the Postmortem Report (Exhibit- 2) as well as the inquest report (Exhibit-4) it would be established beyond doubt that it is a case of homicidal death due to strangulation and it was none other than the appellants who had killed her. She submits that there is no finding in the Postmortem Report to the effect that hyoid bone was fractured which is usually found in case of hanging. Contending that the Supreme Court in the case of Ponnusamy Vs. The State of Tamil Nadu, reported in (2008) 5 SCC 587 has dealt with the above issue in the light of the observation made in the text book of Modi on Medical Jurisprudence and Toxicology, the learned Addl. P.P. has argued that only in a small fraction of cases, hyoid bone is found fractured in case of strangulation. The learned Addl. P.P. has also argued that evidence brought on record has conclusively established that occurrence took place in the midnight when the neighboring people were fast asleep and at that time, the deceased was admittedly staying in her Page No.# 7/26 matrimonial home along with the appellants. Next morning the deceased was found hanging within the compound of their house and the conduct of the appellants after the incident, more particularly that of the appellant No. 2, who had failed to inform the Gaon Burah and the Police, lends further supports to the prosecution story. She submits that the loop of the rope was tied with two branches of the tree which would not have been possible for the victim to do on her own, if it was a case of suicide. Although the appellants/ accused persons were living in the same house on the night of the incident, yet, they have failed to offer any reasonable explanation as to the circumstances under which the victim had died. In view of the above, submits Ms. Jahan, the learned trial court has rightly convicted the accused persons for committing the murder of the victim and sentenced them to undergo rigorous imprisonment for life.
11. We have taken note of the arguments advanced by the learned counsel for both the sides and have carefully gone through the materials on record. Since the basic argument of the appellants counsel is to the effect that the prosecution has failed to establish the charge brought against his clients beyond reasonable doubt we deemed it appropriate to briefly discuss the evidence brought on record by the prosecution.
12. PW-1 Sri. Jogen Sarma is a neighbor of the accused persons. He has deposed that the occurrence took place about 1½ years back. He was sleeping in his home at night when he heard cries coming from the house of his neighbour. Then he went out of the house and saw that the family members of Jayanta were crying. He asked them as to what had happened and they replied that their daughter-in-law 'Tuni' has died and she has committed suicide by hanging. Then he asked the father of Jayanta to inform the Page No.# 8/26 Gaon Burah but he did not know whether the Gaon Burah was informed. During his cross- examination PW-1 had stated that Jayanta had married Tuni out of love affair and the house of Jayanta was situated at a distance of 100 meters from his house.
13. Sri Indra Bora, who is the father of the victim, was examined as PW-2. He has deposed to the effect that his daughter Tuni had eloped and married Jayanta and she started living in his house. On the day of the occurrence, in the morning, he was informed by some persons that his daughter has committed suicide by hanging herself. He then went to the house of Jayanta and saw his daughter hanging from a rope. He lodged an FIR before the police and Exhibit-1 was the said FIR which contains his signature Exhibit- 1(1). PW-2 has stated that he suspected that his daughter had been killed by the accused persons. During cross-examination, PW-2 has stated that his daughter (Tuni) had eloped with Jayanta and he is not in visiting terms with Jayanta. He did not have any information if his daughter was tortured by the accused. This witness had denied having stated before the Police that his daughter had committed suicide as she was not given the status of wife by the accused. PW-2 had also stated that he did not visit the house of Jayanta because his daughter had eloped with him without their consent.
14. Sri Sarbeswar Nath, another neighbor of the accused, was examined as PW-3. This witness has deposed that he knew the accused persons as well as the deceased. The deceased got married out of love affair. He was sleeping at night when he heard hulla coming from the house of Jayanta Saikia. He got up from bed and asked Jayanta's father as to what had happened. He replied that Tuni had committed suicide by hanging herself. He then came back home. During his cross-examination PW-3 had stated that he had no Page No.# 9/26 knowledge if there was any quarrel between Jayanta and Tuni. Rather he has deposed that he did not see any quarrel taking place between the two.
15. PW-4 Sri Rajen Nath is another neighbor of the accused persons. He has deposed before the court that he knew Tuni and she was the wife of Jayanta Saikia. On the date of the occurrence, at about 04:00 a.m. he was at his home when Babul (appellant No.1) had called him from the road. Then he asked as to what had happened and he (Babul) informed that his daughter-in-law had committed suicide by hanging herself. He then asked him (Babul) to inform the Police. In the morning, he came to the house of Jayanta and saw the dead body of Tuni hanging from the tree. This witness has stated that he did not have any information regarding any torture on Tuni. PW-4 has, however, confirmed that Tuni had a love affair with Jayanta and she had eloped with him.
16. Sri Surjya Kumar Baruah (PW-5) is another neighbor of the accused persons who has deposed that he knew Tuni Saikia and she had committed suicide by hanging herself. PW- 5 has further deposed that Tuni Saikia and Jayanta were living together as husband and wife and Tuni was given the status of wife by the family of the accused.
17. Smti. Annmai Bora (PW-6) is the mother of the victim and she has deposed to the effect that the accused Jayanta is her son-in-law and he was married to her daughter about 1½ years back. After the marriage, there was virtually no relationship between her family and the son-in-law. They were not in visiting terms. One morning, some neighbors of the accused persons informed them that their daughter Tuni Bora has been found hanging in her husband's house. She became unconscious after hearing the news. Some neighbors came to their house. Then her other daughters went to the house of the Page No.# 10/26 accused. After returning from there, they informed her that Tuni Bora was found hanging in the backside of the house of the accused persons. PW-6 has further deposed that she went to the Police Station and visited the house of the accused. During her cross- examination this witness had stated that her daughter had a love affair with the accused Jayanta Saikia and eloped with him but no formal marriage was performed. Tuni used to live in the house of Jayanta Saikia as his wife. They were annoyed with her for going with the accused and as such, did not visit the accused persons after their daughter had eloped with Jayanta. Tuni also did not visit their house. This witness has further deposed that when Tuni had eloped with the accused, her brother, out of anger, had burnt her cloths.
18. PW-7 Lakhimai Kakati is the aunt of the victim and she has deposed that Tuni had eloped with Jayanta and was staying in his house. After about 1½ years Tuni was found hanging on the backside of the house of the accused. On being informed by the neighbors of the accused persons that Tuni had hung herself, she went there to see the dead body and found Tuni hanging. PW-7 has stated that Tuni had died under suspicious circumstances and she thought it was a case of murder. During her cross-examination PW-7 has stated that house of the accused person was at a distance of 1 k.m. from their house and that no marriage ceremony between Tuni and Jayanta had been performed.
19. PW-8 Sri P.K. Sarma was the SDM and HO on duty at the B.P. Civil Hospital, Nagaon on 28-04-2009 when the dead body of the victim was brought there for conducting Postmortem Examination. PW-8 had conducted the Postmortem Examination on the dead body. As per the Postmortem Report (Exhibit-2) there were abrasions at the Page No.# 11/26 lower end of the right leg. Ligature marks were seen horizontally, complete at the level of thyroid cartilages. There were ecchymosis, fracture of thyroid cartilage and fracture of lower end of febula bone. PW-8 has proved the Postmortem Report (Exhibit-2) and has deposed that it is not a case of hanging but a case of asphyxia due to strangulation. During his cross-examination, PW-8 has deposed that in a case of hanging, fracture on the neck is not found. All injuries were ante mortem in nature. He has further deposed that in case of hanging, ligature mark is high upon the neck, obliquely upward and deficient (posteriorly) which means ligatures mark would not be found on the posterior side. Doctor has further opined that in hanging there could not be fracture of thyroid cartilage. In hanging there would be parchmentisation. However, PW-8 has clarified that both in strangulation and hanging, there would be asphyxia. The Doctor (PW-8) has, however, denied the suggestion that it was a case of hanging and not strangulation.
20. The investigation in connection with Nagaon P.S. Case No. 534/2009 was carried out by Sri Karuna Kanta Das who was examined as PW-9. The PW-9 has deposed that on 27-04-2009, while he was functioning as the O/C of the Nonoi Police Outpost, one Narayan Kalita had submitted a petition informing that on 26-04-2009, one woman by the name Tuni Bora was found hanging in the backyard from a 'Jamuk' tree and he could see the dead body of the deceased on 27-04-2009 in the morning. Accordingly, U.D. Case No. 20/2009 was registered. Thereafter, he took up the matter for investigation. PW-9 has stated that he had proceeded to the place of occurrence, drew sketch map (Exhibit-3) and also gave requisition for conducting inquest on the dead body of the deceased by one Executive Magistrate. PW-9 has also stated that Executive Magistrate Sri Bibhas Modi had Page No.# 12/26 conducted inquest over the dead body and Exhibit- 4 is the inquest report. In his attempt to prove the Inquest Report (Exhibit-4), PW-9 had identified the signature of the Executive Magistrate in the Inquest Report as Exhibit-4(1). The I/O has further deposed that the dead body of the deceased was sent for Postmortem Examination to the Nagaon Civil Hospital. Thereafter, he had interrogated the family members of the deceased as well as the accused persons. Upon recording the statement of the witnesses and on receipt of the Postmortem Report, he had submitted charge-sheet against the accused persons under Section 498(A)/302 IPC. PW-9 has proved the charge-sheet (Exhibit-5) by identifying his signature thereon as Exhibit-5(1). During the cross-examination, PW-9 has maintained that the FIR in this case had been lodged by one Narayan Kalita. The family members of the deceased were called to the Police Station and their statements were recorded. He had gone to the place of occurrence on the basis of the FIR lodged by Narayan Kalita but he had investigated the case based on the FIR lodged by Indra Bora, i.e. PW-2. The I/O has stated that he has recorded the statement of Narayan Kalita.
21. It appears that Lakhimai Kakati, who was earlier examined as prosecution witness No. 7 and her statement recorded on 10-01-2011, was recalled and re-examined again on 09-12-2013 as PW-10. On this occasion PW-10 has stated that on receipt of information that Tuni Bora had died in the house of her husband she immediately rushed to that place with many other people and saw that Tuni was hanging from a branch of a 'Jamuk' tree, which is behind the house of the accused and the legs of the deceased were touching the floor. She believed that this was not a case of suicide. During her cross-examination, PW- 10 has stated that she had heard from the people that Tuni had committed suicide but Page No.# 13/26 she was actually hanged after her death. She had stated that it is not a case of suicide. PW-10 has also denied the suggestion put to her that Tuni Bora had committed suicide.
22. PW-11 Annmai Bora i.e. the mother of the victim, who was earlier examined as PW-6 and her evidence recorded on 10-01-2011 was re-called and re-examined on 09-12- 2013. PW-11 has stated that there was strained relationship between the family of accused and their family. At the relevant time in the year 2009, they had received information that her daughter Tuni Bora has been killed by the family members of the accused Jayanta and they suspected them of killing their daughter. PW-11 has stated that her daughter was kept hanging at a 'Jamuk' (berry) tree behind their house. The witness has further deposed that after seeing the dead body of her daughter, she became nervous and senseless. She could not say what had happened thereafter in the house of the accused. However, later on, they had accompanied the villagers to the Police Station and her husband Indra Bora had lodged an FIR based on which, a case was registered.
23. In the statement of the accused persons recorded under Section 313 Cr.P.C. they have maintained that the deceased had committed suicide by hanging herself. Accused Babul Saikia had stated that he had informed PW-4 since he was the Gaon Burah(village Headman) and that they were in no way involved with the case. While they were sleeping in their house they did not find the deceased and after searching for her, found her hanging in a rope in the back side of the house. Similar is the version of the other accused persons.
24. From a scrutiny of the materials available on record, it transpires that the case initially projected by the prosecution was one of suicide committed by the victim by Page No.# 14/26 hanging herself being unable to bear the torture meted out to her by her in-laws. Subsequently, charge was re-framed under Section 302/34 IPC and trial against the appellants/ accused persons proceeded on the basis of the aforesaid charge. On a careful reading of the evidence available on record, we find that the prosecution witnesses Nos. 1 to 7 had deposed before the court in one voice stating that according to their knowledge and information, the victim had committed suicide. Their testimony to the above effect finds due corroboration from the materials available on record. However, the prosecution case took a turn after the evidence of the Doctor (PW-8) was recorded on 29-09-2012. The I/O (PW-9) was examined on 05-06-2013. Thereafter, the two witnesses PW- 6 and PW-7 were recalled and re-examined as PW-10 and PW-11.
25. The I/O has deposed that the FIR in this case was lodged by one Narayan Kalita in the morning of 27-04-2009, based on which G.D. case was registered and he took up the matter for investigation. However, Narayan Kalita was not examined as a witness nor was the complaint filed by him on 27-04-2009 exhibited. Therefore, the contents of the complaint lodged by Narayan Kalita is not known. It appears from the evidence of PW-9 the complaint lodged by Narayan Kalita, in all probability, is the actual FIR in this case.
26. As per the Inquest Report Exhibit-4, some black ashes like substance was found in both the hands of the deceased. Marks of tying with rope was also seen in the lower part of the neck, blood stains were seen in the upper side of the right heel and blood clotting were seen in both the legs. Saliva in the mouth was found to have dried. However, we find that author of the Inquest Report, viz. Executive Magistrate Sri. Bibhas Modi has not been called as witness. Rather the Inquest Report (Exhibit-4) has been exhibited by the Page No.# 15/26 I/O (PW-9). The I/O may be able to exhibit the Inquest Report but in our view he was not competent to prove the contents of Exhibit- 4.
27. Having held as above, we find that save and except the sole testimony of Doctor (PW-8), there is no evidence on record to even remotely indicate that the deceased had died a homicidal death. Rather, the bulk of evidence available on record points towards one direction suggesting that it is a case of suicide by hanging. However, since the learned counsel for both the sides have addressed elaborate arguments on the correctness of the Doctor's opinion based on the Postmortem Report, we deem it appropriate to deal with some of the arguments in the manner indicated here-in-below:-
28. According to Mr. Chamuah the Postmortem Report (Exhibit-2) indicates that the thyroid cartilage was fractured but the laryngeal prominence was intact. By referring to the Postmortem Report, Mr. Chamuah has further argued that although the PW-8 had mentioned that there were ecchymosis and fracture of thyroid cartilage but he did not mention the status of the hyoid bone which, according to him, was of vital importance in determining as to whether it was a case of suicide or strangulation. Mr. Chamuah submits that if the thyroid cartilage was in fact fractured then it is not possible that larynx and trachea would remain healthy and intact as shown in the Postmortem Report. Insofar as the entry made in the inquest report to the effect that one of the legs was found touching the ground, Mr. Chamuah submits that in case of partial hanging, the legs could be found touching the ground. In order to substantiate his above arguments Mr. Chamuah has relied upon and referred to the opinions expressed in the book " Forensic Medicine And Toxicology" by J.B.Mukherjee (4th Edition).
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29. In Chapter 8 of the Mukherjee's Volume under the heading " Violent Asphyxial Deaths: Hanging", it has been mentioned that positions such as Kneeling, reclining etc. with feet, knee or heels touching the ground because of low suspension, in case of partial hanging are the most diagnostic findings of suicidal hanging. The above opinion of the Expert, as apparent from J.B. Mukherjee's volume, appears to support the submission of Mr. Chamuah that in case of partial hanging, feet touching the ground could be a common phenomenon.
30. Drawing a distinction between ligature marks in case of suicidal hanging and strangulation, the following observations have been made in J.B. Mukherjee's Volume, which are quoted herein below:
"Suicidal Hanging: Oblique, non-continuous, high up in the neck usually; may be transverse, nearly circular in case of low suspension at or below the level of thyroid cartilage, as in partial hanging. Base of the mark is pale, hard and parchmentised, sub-cutaneous tissue underneath is hard, white and glistening. Strangulation: Transverse, Circular, Complete, Continuous. Low down in the neck; it may simulate suicidal hanging, if homicidally hanged, on being hanged up from behind or hanged immediately after death, killing having been done by means other than hanging. The base of the mark is soft and reddish while the subcutaneous tissue under the mark may be ecchymosed."
31. It has further been mentioned in Mukherjee's volume that in case of suicidal hanging, fracture of hyoid, even though less common, may be noticed at times but fracture of thyroid, cricoids, larynx and trachea are unusual, whereas in case of strangulation, fracture of hyoid is uncommon. It has further been opined that in case of "suicidal strangulation" injury to deeper structures of the neck will be insignificant if not none. Apart from absence of signs of struggle and resistance, there will be overt evidence of self destruction though not very common, yet, it is quite possible to strangle oneself by Page No.# 17/26 a ligature.
32. Insofar as the presence of saliva is concerned, the observations made in the J.B. Mukherjee's Volume are as follows:
"Saliva: Saliva will be found to trickle down from the lower angle of the mouth, down the chin on the chest in straight lines, opposite to the side of the knot in the ligature.The secretion of saliva is a vital act indicative of suspension during life, for the secretion ceases after the cessation of circulation."
33. The difference between hanging and strangulation has been pointed out in Chapter 20- "Death from Asphyxia" in the Textbook of Medical Jurisprudence and Toxicology by Modi, which is reproduced herein below:
Hanging Strangulation
1. Mostly suicidal 1. Mostly homicidal
2. Face- Usually pale and petechiae rare 2. Face- Congested, livid and marked with
petechiae
3. Saliva- Dribbling out of the mouth down 3. Saliva- No such dribbling.
on the chin and chest.
4. Neck- Stretched and elongated in fresh 4. Neck- Not so
bodies
5. External signs of asphyxia, usually not 5. External signs of asphyxia, very well
well marked marked (minimal in death due to vasovagal and
carotid sinus effect).
6. Ligature mark- Oblique, non-continuous 6. Ligature mark- Horizontal or transverse
placed high up in the neck between the chin continuous, round the neck, low down in the
and the larynx, the base of the groove or neck below the thyroid, the base of the groove
furrow being hard, yellow and parchment-like. or furrow being soft and reddish.
7. Abrasions and acchymoses round about 7. Abrasions and ecchymoses round about
the edges of the ligature mark, rare. the edges of the ligature mark, common.
8. Subcutaneous tissues under the mark- 8. Subcutaneous tissues under the mark-
White, hard and glistering. Ecchymosed.
9. Injury to the muscles of the neck- Rare 9. Injury to the muscles of the neck-
Common.
10. Carotid arteries, internal coats ruptured in 10. Carotid arteries, internal coats ordinarily violent cases of a long drop. ruptured.
11. Fracture of the larynx and trachea- Very 11. Fracture of the larynx trachea and hyoid rare and may be found that too in judicial bone.
hanging.
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12. Fracture-dislocation of the cervical 12. Fracture-dislocation of the cervical vertebrae- Common in judicial hanging. vertebrae- Rare.
13. Scratches, abrasions and bruises on the 13. Scratches, abrasions fingernail marks and face, neck and other parts of the body- Usually bruises on the face, neck and other parts of the not present. body- Usually present.
14. No evidence of sexual assault. 14. Sometimes evidence of sexual assault.
15. Emphysematous bullae on the surface on 15. Emphysematous bullae on the surface of the lungs- May be present. the lungs- Not present.
34. From a careful reading of the opinion expressed in the textbooks of J.B. Mukherjee and Modi, we find that the possibilities of existence of ligature marks both in case of suicidal hanging and strangulation cannot be entirely ruled out. Moreover, although saliva is uncommon in case of hanging, yet, dried saliva at times is found even in case of death due to suicidal hanging. We also find that in case of partial hanging it is possible that the feet of the victim is found touching the ground and therefore, merely because the legs of the victim was found to be touching the ground, the same cannot be a conclusive proof of the fact that this was a case of hanging after death.
35. In the case of Ponnusamy (Supra), the Apex Court, while referring to the opinion in "Modi's Medical Jurisprudence and Toxicology" has observed that the opinion of the learned author by itself did not lead to the conclusion that fracture of hyoid bone is a must in all cases of hanging. However, in this case the postmortem report does not clearly mention about the status of the hyoid bone. Therefore, there is no scope for this court to make any assessment on the basis of condition of the hyoid bone. The PW-8 has also not indicated the nature of fracture in the febula bone. The ecchymosis seen in the dead body could be due to strangulation or it could be for any other reason including use of rope for suicidal hanging. The features noticed in the dead body during post mortem examination, Page No.# 19/26 viewed in the light of the opinions expressed in the Volumes of J.B. Mukherjee and Modi no doubt indicate that it could be a case of strangulation but such features, in our opinion, fails to conclusively establish that death of the deceased was by way of strangulation and not suicidal hanging.
36. The PW-8 has also opined that in both strangulation and hanging there would be asphyxia. From the medical evidence available on record only one aspect has been properly established and that is the fact that death of the victim was due to asphyxia.
37. Coming to the facts of the present case, as noticed above, we have already held that save and except the testimonies of PW-10 and PW-11, none of the witnesses apart from the Doctor (PW-8) has supported the theory that this was a case of homicidal death caused by the accused persons. On their re-examination, the PW-10 and PW-11 had deposed differently laying emphasis on the fact that it was the accused persons who had killed the deceased and therefore, it was not a case of suicide. However, the evidence adduced by these two witnesses, i.e. PW-10 and PW-11 are not based on their statement recorded by the Police under Section 161 Cr.P.C. Rather, we find that there is a significant variance in their version.
38. From the LCR, it appears that PW-10 and PW-11 were recalled as witnesses on the basis of an application filed by the prosecution under Section 311 Cr.P.C. Although Mr. Chamuah has practically assailed the decision of the trial court to recall these witnesses by invoking jurisdiction under Section 311 Cr.P.C., yet, the said aspect of the matter, in our considered opinion, cannot be gone into at this point of time, since the appellants did not challenge the order, by means of which, the learned trial court had recalled these Page No.# 20/26 witnesses at the relevant point of time. Be that as it may, notwithstanding the above, it would still be open for the court to examine the probative value of the testimony of PW- 10 and PW-11 in the light of the materials available on record.
39. On a careful examination of the testimonies of PW-10 and PW-11, we find that these witnesses did not say before the Police that they had information or knowledge that the victim had been murdered by the accused persons and it was not a case of suicide. PW-7 did not say that she had seen the victim hanging on a branch of "Jamu" (berry) tree with her legs touching the floor but she said so while deposing as PW-10. PW-6 had earlier said that she fainted after getting information that her daughter had hanged herself but the same witness, when examined as PW-11, has deposed that she had fainted after seeing the dead body of her daughter. In other words, the subsequent testimonies of PW-10 and PW-11 are not only in marked departure from their original deposition recorded as PW-6 and PW-7 respectively but their statements are also full of contradictions.
40. In the case of Sunil Kr. Sambhudayal Gupta (Dr.) & Ors. Vs. State of Maharastra, reported in (2010) 13 SCC 657, the Supreme Court has held that the witnesses who did not disclose certain facts in their statement under Section 161 Cr.P.C. but meets the prosecution case for the first time before the Court, their version lacked credence and was liable to be discarded. Moreover, the evidence adduced by the PWs 10 and 11 appears to be more of an opinion rather than testimony on facts. This court cannot be oblivious of the fact that the relationship between the family of the deceased and her husband's family had turned sour after she had eloped with accused Jayanta Page No.# 21/26 Saikia and therefore, the PWs-10 and 11 taking a motivated stand in the matter cannot be ruled out. In view of the above, we are of the opinion that the evidence adduced by PW-10 and PW-11 would not be of any probative value in establishing the charge brought against the accused persons.
41. Coming to the next argument of Mr. Chamuah that there is no basis for the learned trial court to convict the accused persons with the aid of Section 34 IPC, we deem it appropriate to reproduce the findings of the learned Sessions Judge on the above issues, which is evident in paragraph 11 of the impugned judgment. The relevant part of the conclusion recorded by the learned court below is quoted here-in-below for ready reference:
"11. Thus, the only question remains before me as to whether in view of the evidence tendered by the prosecution witnesses, the present accused persons can be attributed with any common intention to cause the death of Tuni Saikia as a result of the strangulation by any one among the accused themselves, there being no such evidence to see whom of the accused persons subjected her to strangulation resulting her death. The evidence reveals that the deceased women was staying in her husband's house on the fateful night of occurrence and the accused persons also admitted in their statement U/S 313 Cr.P.C. that all of them were present with the deceased women in the same house on that night. Hence, an inference can be drawn from the facts and circumstances of the case as discussed above that the all accused persons shared with common intention while dealing with the deceased Tuni Saikia whom they killed by strangulation on the very night of occurrence."
42. The question is, merely because the accused persons were staying in the same house as the deceased on the night of the incident, could they have been convicted on the basis of their statement recorded under section 313 Cr.P.C by drawing an inference on their involvement. The law on the above issue has been summarized by the Supreme Page No.# 22/26 Court in the case of Raj Kr. Singh @ Raju @ Batya Vs. State of Rajasthan reported in (2013) 5 SCC 722, wherein the Apex Court has made the following observations in paragraph 36 which is quoted here-in-below:-
"36. In view of the above, the law on the issue can be summarised to the effect that statement under Section 313 Cr.P.C. is recorded to meet the requirement of the principles of natural justice as it requires that an accused may be given an opportunity to furnish explanation of the incriminating material which had come against him in the trial. However, his statement cannot be made a basis for his conviction. His answers to the questions put to him under Section 313 Cr.P.C. cannot be used to fill up the gaps left by the prosecution witnesses in their depositions. Thus, the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution. In case the prosecution's evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under Section 313 Cr.P.C. is not recorded after administering oath to the accused. Therefore, it cannot be treated as an evidence within the meaning of Section 3 of the Evidence Act, though the accused has a right if he chooses to be a witness, and once he makes that option, he can be administered oath and examined as a witness in defence as required under Section 315 Cr.P.C. An adverse inference can be taken against the accused only and only if the incriminating material stood fully established and the accused is not able to furnish any explanation for the same. However, the accused has a right to remain silent as he cannot be forced to become witness against himself."
43. In the present case, we find that there is no admission of guilt by the accused persons. However, from the statement of the accused persons recorded under Section 313 Cr.P.C it is evident that they were staying with the accused in the same house on the night of the incident. As has been noted here-in before, the accused persons have also stated that while they were sleeping at night the deceased could not be found and later she was found hanging from the tree. As such, it would not be correct to hold that there was no plausible explanation from the accused persons as to the circumstances under the incident had occurred. What is, however, significant to note here-in is that the learned Page No.# 23/26 trial court has not at all dealt with such explanation of the accused persons while deciding the question of culpability of the accused persons.
44. In the case of Reena Hazarika (Supra) the Supreme Court has held that whether the defense taken under section 313 Cr.P.C. is acceptable or not is a entirely different matter but if there has been no consideration at all of the statement of the accused recorded under section 313 Cr.P.C., then in the given facts of the case, the conviction may well stand vitiated.
45. Coming to the issue of failure of the accused persons to offer reasonable explanation as to the circumstances under which the incident had occurred law is well settled that burden under Section 106 of the Evidence Act does not completely relieve the prosecution to prove the charge by leading evidence but in such cases, the burden will be comparatively lighter. In the case of Trimukh Maroti Kirkan Vs. State of Maharashtra, reported in (2006) 10 SCC 681 it has been held that in view of Section 106 of the Evidence Act, where an offence is committed in the secrecy inside the house, there would be a corresponding burden upon the inmates of the house to give cogent explanation as to how the crime was committed. However, the initial burden to establish the case would be upon the prosecution.
46. Law relating to scope and ambit of Section 34 IPC for fixing joint liability on the accused for criminal act based on common intention has been settled by a long line of judicial precedents and we do not consider it necessary to refer to all those decisions in our judgment. The law can, however, be summarized by stating that in cases where Section 34 IPC is applied, the burden to prove that the accused persons had committed Page No.# 24/26 the criminal act in furtherance of their common intention and that there was meeting of mind on the part of the accused persons to commit the crime would lie entirely upon the prosecution. In this case, there is neither any evidence available on record to draw such an inference so as to implicate the accused persons with the aid of Section 34 IPC nor has the learned trial court recorded any finding on that behalf. There is also no finding recorded by the learned court below as regards individual culpability of the accused persons under Section 302 IPC. In such view of the matter, we are of the opinion that conviction of the accused persons with the assistance of Section 34 IPC, was also not justified in the facts and circumstances of the case.
47. Section 8 of the Evidence Act provides that subsequent conduct of a party to a proceeding would be relevant. From the evidence available on record, we find that immediately after discovering that the deceased was hanging from a tree, the accused persons had informed their neighbours about the incident including the Village Head; the family members of the accused persons were found crying; none of them had left the house. The above conduct of the accused persons would also go to show that there was neither any attempt to suppress the incident nor was there any attempt to flee the law. The above conduct of the accused persons do not give rise to any suspicion that they might have been involved in the commission of a crime.
48. In the instant case, we have already noticed that the deceased was found hanging from a tree outside the house but inside the premises of the accused persons. It has come out from the sketch map (Exhibit-3) that the "kutcha latrine" was situated away from the rooms where the accused persons and the deceased were residing. The incident Page No.# 25/26 took place around mid-night and the accused persons have stated that when they woke up they did not find the deceased inside the house and after looking for her, found the deceased hanging from a tree. None of the neighbours had heard any commotion before the incident. There is also no evidence to acrimonious relationship between the deceased and her husband of the other family members. The motive behind committing the murder of the deceased could not be established by the prosecution. The accused persons have offered some explanation as to the circumstances under which the incident might have occurred and the same cannot be readily held to be totally improbable. The prosecution has failed to conclusively establish the homicidal death of the deceased and have also failed to prove common intention on the part of the accused persons to commit any crime. Therefore, on a cumulative assessment of the fact and circumstances of the case as well as the evidence adduced on record, we find sufficient force in the submission of Mr. Chamuah that the prosecution has failed to prove the charge brought against the accused persons under Section 302/ 34 IPC beyond reasonable doubt. On the contrary, from the material available on record, we are of the view that the deceased committing suicide by hanging herself by going out of the house in the mid night, on the pretext of answering natures call, cannot be ruled out in this case.
49. There can be no doubt about the fact that the incident took place under mysterious circumstances giving rise to a suspicion as regards the involvement of the accused persons or at least the husband of the deceased Jayanta Saikia in committing the murder of his wife. However, it is settled law that suspicion, howsoever strong, cannot take the place of proof. The sole basis of suspicion in this case is the opinion of the doctor PW-8.
Page No.# 26/26 However, it is to be borne on mind that the opinions expressed by the medical and forensic experts in such matters is usually based on a number of factors including the condition of the specimen, data obtained from previous case studies and past experience of the author. Therefore, possibility of slight variations and/or moderations of such opinion from case to case is natural. In such view of the matter, we are of the opinion that, in the absence of any corroborating evidence, it would be highly unsafe to the award conviction for committing murder solely on the basis of medical evidence.
For the reasons stated hereinabove, we are of the opinion that the conviction of the appellants under Section 302/34 IPC is unsustainable in the eye of law. The impugned judgment and order dated 13-07-2015 is therefore, set aside. The appellants are hereby acquitted by giving them the benefit of doubt.
We are informed that the appellant Jayanta Saikia is in jail while the other appellants are out on bail. As such, we direct that the appellant Jayanta Saikia be forthwith released from jail.
The appeal stands allowed.
Registry to send back the LCR.
JUDGE JUDGE GS Comparing Assistant