Gauhati High Court
Nandalal Garh vs The State Of Assam on 30 January, 2020
Equivalent citations: AIRONLINE 2020 GAU 293
Author: Manish Choudhury
Bench: Manish Choudhury
Page No. 1/15
GAHC010144392017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J) 85/2017
1:NANDALAL GARH
VERSUS
1:THE STATE OF ASSAM
Advocate for the Petitioner : MR. ANJAN KALITA, AMICUS CURIAE
Advocate for the Respondent : MR. B. J. BUTTA, ADDL. P. P., ASSAM
BEFORE
HONOURABLE MR. JUSTICE MIR ALFAZ ALI
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT
(CAV) Date : 30-01-2020 (Manish Choudhury, J) Heard Mr. A. Kalita, learned Amicus Curiae for the accused-appellant and Mr. B. J. Dutta, learned Addl. Public Prosecutor for the State.
2. This appeal from Jail is directed against the Judgment and Order dated 09.06.2017 passed by the learned Sessions Judge, Lakhimpur at North Lakhimpur in Sessions Case No. 148(NL)/2016. The accused-appellant was accused and charged of uxoricide and by the Judgment and Order dated 09.06.2017, the accused-appellant has been convicted under Section 302, Indian Penal Code ("IPC", in short) and he has been sentenced to undergo Page No. 2/15 imprisonment for life and to pay a fine of Rs. 5,000/- (Rupees five thousand) only, in default, to suffer further rigorous imprisonment for 6 (six) months.
3. The prosecution was set in motion by an Ejahar dated 17.05.2016 lodged by one Sri Prahlad Garh (P.W.-2), the elder brother of the deceased, before the Officer In-Charge, Boginadi Police Station alleging, inter-alia, that on 10.05.2016, his brother-in-law i.e. the accused-appellant taking advantage of absence of any other person at home, closed the door of his house, tied the hands of his wife, Anita Garh i.e. the deceased, put clothes over her and set fire to her after pouring kerosene oil on her. In the meantime, the informant's niece, aged about 7 (seven) years, returned from school and upon hearing hue and cry from inside their house, she started shouting and crying. Then, the neighbours came there and when they broke open the door, they found Anita Garh in a burnt state and the accused-appellant intact whereupon the neighbours rescued both of them. Later, 108 Ambulance service was called and Anita Garh was taken to Saboti Civil Hospital where she underwent treatment. But the deceased breathed her last on 12.05.2016. The informant had further alleged that the accused-appellant had assaulted his younger sister on earlier occasions also. Before setting fire to his wife, the accused-appellant did not allow his wife to have meals for 4 (four) days and tortured her physically. The informant also named Sri Harilal Garh, Sri Gambhit Garh, Sri Bhaiti Garh and Sri Babu Garh in the Eiahar as persons who would substantiate the fact of murder.
4. On receipt of the aforesaid Ejahar, the Officer In-Charge, Boginadi Police Station registered a case being Boginadi Police Station Case No. 73/2016 under Section 302, I.P.C. on 17.05.2016. A corresponding G.R. Case being G.R. Case No. 1145/2016, was also registered. The investigation of the case was entrusted to P.W.-6, Mr. Brojen Kalita, Sub-Inspector of Police, Boginadi Police Station.
5. It has emerged that on 13.05.2016, an information was received at Boginadi Police Station from the Officer In-Charge, North Lakhimpur Police Station about the death of the deceased and on the basis of the said information, a general diary entry being G.D. Entry No. 209 dated 13.05.2016 was entered into at the Boginadi Police Station and the matter was Page No. 3/15 entrusted to one Mr. Jiten Bora, Assistant Sub-Inspector of Police who conducted the inquest on the dead body of Anita Garh at the morgue house of North Lakhimpur Civil Hospital on 13.05.2016. To ascertain the cause of death, the dead body was, thereafter, forwarded to North Lakhimpur Civil Hospital for post-mortem examination. The post-mortem examination on the dead body of the deceased was conducted on 13.05.2016 at North Lakhimpur Civil Hospital. It was only after lodgment of the Ejahar on 17.05.2016 and registration of Boginadi Police Station Case No. 73/2016, investigation was entrusted to P.W.-6, Sri Brojen Kalita.
6. On being so entrusted, the Investigating Officer (I.O.), P.W.-6 got the statements of few of the witnesses recorded under Section 161, Code of Criminal Procedure, 1973 ("the CrPC", in short) at the Police Station. Thereafter, the I.O. visited the place of occurrence and drew a sketch map of the place of occurrence. The I.O. also recorded the statements of some other witnesses at the place of occurrence. In the course of investigation, the I.O. arrested the accused on 18.05.2016. On completion of investigation, a charge sheet being Charge Sheet No. 52/2016 dated 30.06.2016 (Ext.-5) under Section 173, Cr.P.C. was submitted by the I.O. finding a prima-facie case under Section 302, I.P.C. against the accused-appellant. At the time of filing of the charge sheet, the accused-appellant was in jail custody.
7. After securing the appearance of the accused-appellant before the Additional Chief Judicial Magistrate, Lakhimpur at North Lakhimpur by causing his production from jail custody, the copies under Section 207, Cr.P.C. were furnished to the accused-appellant. Thereafter, the case record of G.R. Case No. 1145/2016 was committed to the Court of learned Sessions Judge, Lakhimpur by the Court of learned Additional Chief Judicial Magistrate, Lakhimpur under Section 209, Cr.P.C. by an order of commitment dated 14.09.2016 as the offence alleged under Section 302, I.P.C. is exclusively triable by the Court of Sessions.
8. On such transfer pursuant to commitment, the Court of learned Sessions Judge, Lakhimpur received the case record of G.R. Case No. 1145/2016. On receipt of the case record, G.R. Case No. 1145/2016 was renumbered as Sessions Case No. 148(NL)/2016. Thereafter, the learned Sessions Judge, Lakhimpur upon hearing the learned Public Page No. 4/15 Prosecutor, the State defence counsel and perusal of the case records, framed a charge under Section 302, I.P.C. against the accused-appellant on 27.06.2016. The charge on being read over, interpreted and explained to the accused-appellant, he pleaded not guilty and claimed to be tried.
9. During the course of trial, 6 (six) witnesses including the I.O. and the doctor who conducted the autopsy, were examined by the prosecution. The prosecution witnesses are viz. (1) P.W.-1 :- Dr. Bipul Roy; (2) P.W.-2 :- Sri Prahlad Garh, the informant; (3) Sri Sankar Tekma; (4) P.W.-4 :- Smti. Janti Garh; (5) P.W.-5 :- Sri Sanjoy Garh; and (6) P.W.-6 :- Sri Brojen Kalita, S.I. of Police and the I.O. The accused-appellant was examined under Section 313, Cr.P.C. and in the said examination, the accused-appellant denied of assaulting the deceased. The defence adduced no defence witness. Having found the charge framed under Section 302, I.P.C. proved against the accused-appellant, the learned trial court convicted him accordingly and passed the sentence mentioned hereinabove. Aggrieved by the aforesaid Judgment and Order, the accused-appellant preferred the instant appeal.
10. Learned Amicus Curiae, Mr. Kalita has submitted that there is no direct evidence to the effect that the victim had died a homicidal death and it was the accused-appellant who had committed the crime. He has further submitted that the prosecution witnesses on whose testimonies the learned trial Court had relied upon to arrive at its finding of guilt, cannot be considered to be reliable in view of the doubtful nature of their testimonies about the occurrence of the events. There was abject failure on the part of the prosecution to explain the delay of 7 (seven) days in lodging the Ejahar. He submits that the case cannot be considered to be one where the last seen theory can be brought in to support the conviction of the accused-appellant and in view of the failure on a part of the prosecution to prove the case beyond reasonable doubts by joining together all the links in the chain of circumstances, it cannot be said that the onus had been shifted to the accused-appellant to provide explanation that he was not the perpetrator of the crime, if the cause of death was found to be homicidal in nature. To buttress his submissions, reliance is placed in the decision in Kanhaiya Lal vs. State of Rajasthan, reported in (2014) 4 SCC 715.
Page No. 5/1511. Ms. Jahan, learned Addl. Public Prosecutor has supported the findings arrived at by the learned trial Court. She has fairly submitted that though the learned trial Court made a reference of a dying declaration made before P.W.-2, but the same found no corroboration from the other witnesses. She submits that sans such dying declaration, the evidence of P.W.- 2, P.W.-3 and P.W.-5 are consistent in material particulars and their testimonies, in the absence of failure on the part of the accused-appellant to explain the cause of death, cannot be discarded and, accordingly, the same had been rightly relied upon by the learned trial Court. The learned trial Court is absolutely justified in its approach on an analysis of the evidence on record, to reach the finding of guilt of the accused-appellant and as such, there is no good and sufficient reason to interfere with the conviction and sentence of the accused- appellant.
12. We have considered the submissions of the learned counsel for the parties and also perused the impugned Judgment and Order of the trial Court as well as the materials available in the records of Sessions Case No. 148(NL)/2016, in original.
13. On perusal of the impugned Judgment and Order of the learned trial Court, it transpires that the learned trial Court had arrived at the finding of guilt primarily relying on the testimonies of P.W.-2, P.W.-3 and P.W.-5, whose evidence the learned trial Court had found reliable and consistent. The learned trial Court had also made a reference of a dying declaration, stated to have been made before P.W.-2 by the deceased. It had observed that at the time of occurrence, the deceased sustained extensive burn injury inside the house where the accused-appellant and the deceased used to reside. At the time of occurrence, the accused-appellant was present in the house but he failed to explain how his wife received extensive burn injury. All those factors, the learned trial Court observed, had gone to establish that it was the accused-appellant alone, who was the perpetrator of the crime.
14. In view of the above submissions of the learned counsel for the parties and the findings of the learned trial Court, it is apt to find out what the prosecution has brought on record by way of evidence.
Page No. 6/1515. According to P.W.-2, the informant and the elder brother of the deceased, the incident took place at about 4-00 p.m. and at that time, he was working in a field near the house of the accused-appellant. He came to the place of occurrence on hearing hue and cry and found that the door of the house was closed and smoke was coming out from its inside. Later, when they broke the door and entered the house, they saw the deceased, in flames, on a bed and the accused-appellant waiting near the bed. They poured water on her and thereafter, took her to Lakhimpur Civil Hospital. He stated that on being asked, his sister told that the accused-appellant had set fire on her after pouring kerosene oil on her. The deceased died in the hospital on the next day and thereafter, he lodged the Ejahar (Ext.-2) in the Police Station. In cross-examination, this witness stated that he neither told the Police nor mentioned in the Ejahar that at the time of incident, he was working near the house of the accused-appellant. Admitting that the Ejahar was written as per his version, he further told that he neither told the Police nor mentioned in the Ejahar that after breaking open the door when he entered the house, he found his younger sister, in flames, on a bed and the accused-appellant standing near the bed.
16. P.W.-3, Sankar Tekma is a nephew of the deceased she being the sister of his father and lives adjacent to the house of the accused-appellant. According to him, the incident took place at about 3-00 p.m. and at that time, he was thrashing rice at his house using cattle. At that time, he saw the daughter of the accused-appellant crying in front of her house after her return from school. Having seen smoke coming out from inside the house, he went running there and saw the door closed from inside and he could not open it despite his try. He raised hue and cry and as a result, some other persons gathered and entered inside by breaking open the door of the house. He too then saw the accused-appellant coming out of the house. He saw his aunt burning on the bed inside and smelled kerosene. The people doused the fire by pouring water on the deceased and thereafter, she was taken to the hospital. Later, he heard that the deceased had expired. He denied a suggestion that the accused-appellant was one amongst the persons who had broken the door. According to him, about 25 persons came hearing his hue and cry.
17. P.W.-5 is a neighbour of the accused-appellant. In his testimony, he stated that the Page No. 7/15 incident took place at noon and at that time, he was at home. He saw the younger daughter of the accused-appellant crying outside the house and smoke was coming out from inside the house. Then he tried to enter the house of the accused-appellant but he found the door locked from inside. Then, P.W.-3 and he broke open the door and entered the house. Inside, he found the accused-appellant and his wife, in flames, on the ground. At that time, the villagers arrived there and finding her clothes on fire, they doused the fire by pouring water. When asked in cross-examination, he stated that the public arrived there after he had reached the place of occurrence.
18. P.W.-4, Smti. Janti Garh stated that at the time of the incident, she was not at her house and she stated to have returned to her house after the incident.
19. P.W.-1, Dr. Bipul Roy was, on 13.05.2016, serving as Medical & Health Officer at North Lakhimpur Civil Hospital. On that day, he performed the post-mortem examination on the dead body of Anita Garh. On such examination, he found the body in a decomposed condition. Approximately 65% mixed flame burn was found which, according to him, was suicidal in nature except the lower limbs. No external injury was found in the other parts of the body. Scalp was found burnt but the skull and vertebra were intact. The death occurred within 48 hours, according to him. He opined that the deceased died due to dehydration and shock (septicemic) as a result of burn injury which was suicidal in nature. He exhibited the Post-Mortem Examination Report as Ext.-1 and the cross-examination of this witness was declined by the defence.
20. The consistent plea of the accused-appellant during his examination under Section 313, Cr.P.C. was that he was not present in the house at the time of the incident and false evidence had been adduced. He further stated that his wife used to consume liquor and he did not know how his wife had died. One of the questions which has arisen for consideration is whether the testimonies of P.W.-2, P.W.-3 and P.W.-5 are reliable and consistent enough to base the conviction of the accused-appellant for the charge of murder of his wife in the face of the medical evidence to the effect that the death, according to the autopsy doctor, was suicidal in nature.
Page No. 8/1521. As has been mentioned hereinabove, it has emerged that the incident had occurred on 10.05.2016 in the house where the accused-appellant and his wife i.e. the deceased used to reside along with their children. As per P.W.-6, the I.O., Boginadi Police Station received information from North Lakhimpur Police Station only on 13.05.2016 about the death of the deceased. On the basis of the said information, Boginadi Police Station registered a general diary entry being G.D. Entry No. 209 on 13.05.2016 and thereafter, one Assistant Sub- Inspector of Police, Mr. Jiten Borah from Boginadi Police Station was assigned to investigate into the matter. The said G.D. Entry No. 209 was not brought on record by the prosecution. It has, thus, emerged that during the period from 10.05.2016 to 13.05.2016, no one had accused the accused-appellant of committing the murder of his wife. Though P.W.-6 has mentioned about conduct of inquest on the dead body of Anita Garh, he did not exhibit the Inquest Report, which is, however, available in the records. As per the Inquest Report, the inquest was done at the morgue house of North Lakhimpur Civil Hospital on 13.05.2016 by Mr. Jiten Borah, A.S.I. From the Post-Mortem Examination Report (Ext.-1), it has emerged that the dead body of the deceased was identified before P.W.-1 by the accused-appellant himself. The said fact of presence of the accused-appellant at North Lakhimpur Civil Hospital goes to show that the accused-appellant had attended the post-mortem examination of his wife. Thereafter also for the period till 17.05.2016, no Ejahar was lodged. It was only on 17.05.2016, P.W.-2 had lodged the Ejahar alleging the accused-appellant of setting fire to his wife on 10.05.2016, for which she died. The contents of the Ejahar have already been stated hereinabove. But the informant in the Ejahar made no whisper about the reason which made him wait till 17.05.2016 to lodge the Ejahar against the accused-appellant. Neither in the Ejahar nor in his evidence, P.W.-2 cited any reason for the delay in lodging the Ejahar. It was only after lodgment of the Ejahar, the accused-appellant was arrested.
22. In is in the above backdrop, the evidence of the informant (P.W.-2) who stated his occupation as a day labour, P.W.-3 and P.W.-5 are required to be looked into. P.W.-2 did not say that he is from the same village as that of the accused-appellant though he had stated that on the date of the incident, he was working in a field near the house of the accused- appellant. Evidently, he belonged to a different village. On hearing hue and cry, he stated to Page No. 9/15 have reached the place of occurrence and found the door of the house closed and smoke coming out from inside the house. He did not say about the other persons who were present there at that moment. But he stated that later, they broke open the door and entering the house, found the deceased in flames on a bed. But in his cross-examination, P.W.-2 had admitted that he, neither before the Police nor in the Ejahar, had stated that at the time of incident, he was working near the house of the accused-appellant. He further admitted that he neither told the Police nor mentioned in the Ejahar that after breaking the door when he entered the house, he found his younger sister, in flames, on a bed and the accused- appellant standing near the bed. His such admission goes to show that he had tried to present a story which he had not seen. His presence at the place of occurrence cannot be held to be natural in the absence of a plausible explanation of working in a field near the house of the accused-appellant. He did not speak about the presence of P.W.-3 and P.W.-5 at the place of occurrence specifically. His conduct of not lodging the Ejahar for a period of 7 (seven) after he himself having purportedly seen the accused-appellant and his sister inside the house with the door locked from inside and his sister in a burnt condition, puts a serious doubt on the veracity of the testimony of this witness. His further claim that the deceased had told him that the accused-appellant had set fire to her at the place of occurrence itself, has put a further dent to the veracity of his version. Neither P.W.-3 nor P.W.-5 who also claimed to be the persons who broke open the door and found the deceased inside the house, had mentioned about any such declaration made before the informant. In fact, neither P.W.-3 nor P.W.-5 had acknowledged the presence of P.W.-2 at the place of occurrence in any manner. As per version projected by P.W.-2 in the Ejahar, the hands of the deceased were tied by the accused-appellant but none of the other witnesses had made any corroboration of the same. In the Ejahar, P.W.-2 stated that before setting the deceased ablaze, the accused- appellant did not let his sister to have meals for 4 (four) days. To examine the veracity of such claim, we have gone through the Post-Mortem Examination Report (Ext.-1). As per Ext.- 1, semi digested food particles were present in the small intestine and faecal matters were present in the large intestine. Thus, it cannot be said that the deceased did not have meals for 4 (four) days prior to 10.05.2016, meaning thereby, the informant had made embellishments from his own in the story projected in the Ejahar, which was admittedly written as per his version. Having given due consideration on the above aspects, we are of Page No. 10/15 the unhesitant opinion that no credence can be given to the testimony of P.W.-2 as he is found to be unreliable.
23. According to P.W.-3, the incident had occurred at about 3-00 p.m. and at that time, he was at his house. On the other hand, according to P.W.-5, the incident occurred at noon and at that time, he was also in his house. Both P.W.-3 and P.W.-5 have stated themselves to be neighbours of the accused-appellant and both were at their respective houses at the relevant time. But such time gap of about 3 (three) hours about the time of the alleged incident, in their versions, cannot lightly be overlooked. P.W.-3 claimed that he was the first person to reach the place of occurrence after hearing the cry of the younger daughter who came after the school and having seen smoke coming out from inside the house. On the other hand, P.W.-5 also claimed to be the first person to have tried to enter the house. According to him, he from his house saw the younger daughter of the accused-appellant crying outside the house and smoke coming out from inside the house and he tried to enter the house but found the door of the house locked from inside. Then, P.W.-3 and he broke the door and entered the house. Though P.W.-3 had stated that he made a try to open the door but found that door of the house was closed from inside. Then he raised hue and cry and other persons gathered there. P.W.-3 did not say that he entered inside the house. The other persons who gathered there had broken open the door of the house and entered inside the house. He then stated to have seen the accused-appellant coming from inside the house and his aunt burning inside. P.W.-3 did not say that he was amongst the person who had broken the door of the house and went inside. He appears to be only one of the onlookers who had not taken any part in breaking open the locked door of the house. Thus, P.W.-3's version as regards breaking open the locked door runs contrary to the version of P.W.-5. He did not take part in the act of pouring water to douse the fire of his aunt who was not dead at that point of time, but still he smelled kerosene. He only heard, later on, that his aunt had died. No other witness had said that they smelled of kerosene. The conduct of P.W.-3 who is the nephew of the deceased being the son of her elder brother, during the period from the date of incident to the date of lodgment of the Ejahar and his testimony do not inspire such confidence so as to accept the same without the blink of the eyes. In view of the same, the claim of P.W.-5 that he and P.W.-3 only had entered inside the house at first after breaking open the door is Page No. 11/15 not acceptable when as per P.W.-3, he did not take any part in breaking open the door. P.W.-3 is the nephew of the deceased and in such view of the matter, he appears to be an interested witness. As a result, his testimony has called for a careful scrutiny and on appreciation of the same, it does not ex-facie appears to be trustworthy. P.W.-5 denied the suggestion that he did not break open the door but other persons had broken the same. P.W.-5 had stated that he was not aware as to how the fire was caught. While as per P.W.-3, he had seen his aunt burning on the bed, albeit from outside, P.W.-5 had stated to have seen the deceased lying burn on the floor of the house. When all these situations are considered together, it also gives rise to a reasonable doubt as to whether P.W.-5 was present at the place of incident at the relevant time and such testimony of P.W.-5 clearly needs corroboration from other evidence led by the prosecution which has been found lacking.
24. Both P.W.-3 and P.W.-5 had stated that they reached the place of occurrence after hearing hue and cry of the younger daughter of the accused-appellant and the deceased. But the prosecution has conspicuously not examined the said minor girl, who was stated to be about 7 (seven) years of age on the date of the incident. The informant had named 4 (four) persons in the Ejahar who would substantiate the occurrence of the incident of murder but the prosecution, noticeably, has not also examined any of those persons. There appears to be no seizure of the burnt clothes. As it has emerged from the records that after the incident had occurred on 10.05.2016, Anita Garh was taken to and admitted in North Lakhimpur Civil Hospital where she expired on 12.05.2016. The prosecution has not brought any evidence on record as regards her treatment in the said hospital during the said period from 10.05.2016 to 12.05.2016 and as to whether during the said period, she was in a position to speak. From the above, it has emerged that the prosecution has not brought the entire events that had occurred during the period from 10.05.2016 to 17.05.2016 i.e. the date of lodging of the Ejahar by P.W.-2 in its entirety, but only partially, and thus, certain gaps have emerged in the case of the prosecution which remain unfilled. The prosecution case has further got weakened due to non-explanation of the delay of not lodging the FIR with promptitude either from the date of the alleged incident (10.05.2016) or, at least, from the date of death of Anita Garh (12.05.2016).
Page No. 12/1525. The autopsy doctor, P.W.-1 had clearly opined that the deceased died due to dehydration and shock (septicemic) as a result of burn injury which was suicidal in nature. Ext.-1, Post-Mortem Examination Report had recorded that there was approximately 65% mixed flame burn except lower limbs, suicidal in nature. There was, however, no external injury to any other parts of the body. Larynx, trachea and both the lunges were found congested with smoke particles present. The said medical opinion of suicidal death has not been contested by the prosecution in any manner. Absence of any injury marks in any other parts of the body is suggestive of the fact that there was no struggle prior to the deceased got immolated. Had it been a case of forceful burning, there would have been some signs of struggle resulting at least in some superficial injuries. Notwithstanding the discrepancies in the testimonies of P.W.-3 and P.W.-5 about the place of finding the victim inside the house, the victim was found to be seen burning on a lying condition. In a case of forceful burning, the flames are likely to spread to all parts of the body if the victim after being set ablaze, was made to lie on a flat surface. The presence of burn injury which stood confined only to upper limbs of the body is also suggestive of an act of self-immolation. All these aspects coupled with the opinion of the autopsy doctor clearly throws a doubt about the cause of death of the deceased as to whether the same was a suicidal one or it was homicidal in nature.
26. It was the evidence of purported presence of the accused-appellant inside the house at the relevant time of incident, based on the depositions of P.W.-3 and P.W.-5, which appears to have led the learned trial Court to reach the conclusion that he was present inside the house at the time of the incident with the door locked from inside, in the absence of leading any proof by him to reach any other conclusion. The accused-appellant in his examination under Section 313, Cr.P.C. was consistent in his plea that he was not present at the time and place of the incident and false evidence had been adduced against him. He further stated that his wife used to consume liquor and he did not know what had happened on that day. It was suggested that he was not inside the house but was one amongst the persons who had broken the door of the house. It is not in the evidence that the accused-appellant was seen with his wife inside the house just immediately prior to the time of the incident to bring in the theory of last seen together in any unqualified manner. When the accused-appellant denied his presence inside the house, the question of providing an explanation as to how the fire Page No. 13/15 was caught did not arise and in such situation, it cannot be said that the onus of proof had been shifted to the accused-appellant. The evidence of prosecution witnesses do not inspire such confidence to conclusively hold that the accused-appellant was inside the house. In Kanhaiya Lal (supra), the Hon'ble Supreme Court of India has observed that " the circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant."
27. It has not been brought on evidence that there was any kind of animosity between the accused-appellant and his wife prior to the date of the incident so as to lend the prosecution to attribute any motive to the accused-appellant to cause the death of his wife. It has emerged that the accused-appellant was present at the time of inquest held on the dead body of his wife on 13.05.2016 as well as at the time of conducting the post-mortem examination on 13.05.2016. The matter of not lodging any complaint attributing complicity of the accused-appellant in the incident of 10.05.2016 till 17.05.2016 is another aspect which cannot be brushed aside as insignificant.
28. Evidently, there is no direct evidence in the instant case. In a case where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt can be inferred, should have to be fully established and each fact sought to be relied upon by the prosecution must be proved individually. In deciding the sufficiency or otherwise of the evidence of circumstantial nature for the purpose of conviction, the Court has to consider the total effect of all proved facts, each one of which unerringly pointing to the conclusion of guilt and if the total effect of these facts does not give rise to any other hypothesis other than the hypothesis of guilt of the accused with there being no missing links whatsoever, then only the conviction of the accused can be justified. In a case of murder, the burden of proving death as a result of a voluntary act of the accused and motive on his part is on the prosecution. In a case based on circumstantial evidence, the absence of motive puts the Court to scrutinize the circumstances more carefully to ensure that suspicion and conjecture do not take place of Page No. 14/15 legal proof.
29. In the light of the above discussions, it has emerged that the prosecution has not been able to prove conclusively that the death of the deceased was a homicidal one. A delayed Ejahar without any explanation for the delay, has further dented the case of the prosecution. The testimony of the informant, P.W.-2 has not been found reliable to accept the story he had projected as a true one. The testimonies of P.W.-3 and P.W.-5 are also not found acceptable for the reasons mentioned above. There are a number of missing links in the case of the prosecution to reach the one and only conclusion that the accused-appellant was responsible for the death of his wife. In view of the medical evidence that the death was a suicidal one and the burn injuries confined only to the upper limbs of the body, a hypothesis that the cause of death of the deceased was due to self-immolation cannot be ruled out in an outright manner. It is cardinal principles of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts and if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted and the benefit of every reasonable doubt should be given to the accused. Thus, we are of the considered opinion that in the instant case, the prosecution has not been able to bring the case beyond all reasonable doubts against the accused-appellant and the accused-appellant is entitled to the benefit of doubt. In such view of the matter, the impugned judgment and order of conviction and sentence is not sustainable and accordingly, the same is set aside and quashed. Resultantly, the present appeal stands allowed. The accused-appellant be set at liberty, if he is not required in connection with any other case.
30. The direction made by the learned trial Court as regards award of compensation under Section 357A, Cr.P.C. has, however, been left undisturbed.
31. We mention our appreciation for the services rendered by Mr. A. Kalita, learned Amicus Curie and direct that an amount of Rs. 7,500/- be paid to him as remuneration by the State Legal Services Authority.
Page No. 15/15Return the L.C.R. forthwith.
JUDGE Comparing Assistant