MD. ANOWAR HUSSAIN v. STATE OF ASSAM

From the Judgment and Order dated 19.08.2016 of the High Court of Gauhati at Gauhati in Criminal Appeal (J) No. 100 of 2013. S. Mahendran, Adv. for the Appellant. Shuvodeep Roy, Ishaan Borthakyr, Advs. for the Respondent. The Judgment of the Court was delivered by DINESH MAHESHWARI, J. Table of Contents* Preliminary and brief outline ................................................ 2 Relevant factual and background aspects ........................... 6 Prosecution Evidence ............................................................. 8 Stand of the appellant .......................................................... 14 Trial Court found the appellant guilty and awarded life imprisonment .................................................................. 15 High Court dismissed the appeal filed by the appellant .. 21 Rival Submissions ................................................................. 23 The scope and width of these appeals ................................ 30 *Ed. Note : Pagination in the Table of contents is as per the original Judgment A B C D E F G H 724 SUPREME COURT REPORTS [2022] 18 S.C.R. A The principles applicable to this case ................................ 31 Concurrent findings do not call for interference in this case ........................................................................................ 43 Preliminary and brief outline

This appeal is directed against the judgment and order dated 19.08.2016 in Criminal Appeal No. 100 (J) of 2013, whereby the Gauhati High Court dismissed the appeal against the judgment and order dated 18.07.2013/25.07.2013, as passed by the Court of Sessions, Goalpara in Sessions Case No. 96 of 2012, whereby the appellant was held guilty of the offence under Section 302 of the Indian Penal Code, 18601 and was awarded the punishment of imprisonment for life and fine of Rs.5,000/- with default stipulations.

Before dealing with the matter in necessary details, we may draw a brief outline to indicate the contours of the forthcoming discussion.

2.1. The prosecution case, based on circumstantial evidence, has been that the victim, being the 20-year-old wife of appellant, died on 22.10.2010 while residing with the appellant; and that her dead body was brought to the police station by her grandfather PW-1 Md. Akbar Ali, who made an ejahar (Ex. 1) that ever since marriage the deceased was subjected to physical and mental torture by the appellant, who caused her death by inflicting grievous injuries and his family members were involved in the conspiracy. As per the report (Ex. 2), in the inquest carried out at the police station in the presence of informant and other witnesses, injuries were noticed around the eyes, cheeks and neck of the deceased. The First Information Report2 was registered for offences pertaining to Sections 498-A, 302 and 120-B IPC on the ejahar so made by PW-1 and the dead body was sent for post-mortem examination. As per the post- mortem report (Ex. 4), the dead body carried several injuries and the cause of death had been asphyxia due to throttling.

2.2. It has been the case of prosecution that the appellant was absconding after the incident and was arrested two days later, at a distant place. After investigation, the charge-sheet was filed against the appellant for the offence punishable under Section 302 IPC whereas the other accused persons were let off for want of positive evidence. One of the B C D E F G 1 ‘IPC’, for short. 2 ‘FIR’, for short. H MD. ANOWAR HUSSAIN v. STATE OF ASSAM [DINESH MAHESHWARI, J.] 725 peculiar features of the case had been that the private witnesses, PW-1 to PW-6, did not support the prosecution and they essentially suggested that the victim was suffering from illness and died in hospital, where she was taken for treatment. The appellant himself, in his statement under Section 313 of the Code of Criminal Procedure, 19733, endorsed the statements so made by PW-1 to PW-6 and maintained that his wife died in the hospital. He also stated that he had gone to bring medicines for himself due to illness and was arrested by the police at Borabara.

2.

The Trial Court disbelieved the story put forward by the private witnesses and by the appellant about demise of the victim in hospital, particularly with reference to the inquest report drawn at the police station, duly signed by PW-1 to PW-4 and also with reference to the other circumstances, as established in the testimony of the Investigating Officer4 PW-7 Anowar Hussain as also PW-8 Dr. Madhab Kr. Rahang. The Trial Court also found that the accused-appellant came out with a false plea of having gone to the other place to get medicines though no such medicines were found in his pocket; and he failed to explain the cause of homicidal death of his wife, who was living with him prior to her death. Thus, the appellant was held guilty of the offence under Section 302 IPC on the basis of the chain of circumstances proving his guilt and was awarded the punishment as noted above. The High Court also proceeded with the considerations that weighed with the Trial Court while further observing that when the appellant failed to offer proper explanation to the incriminating circumstances or the explanation offered by him was found to be untrue, it became an additional link to complete the chain of circumstances.

2.

In challenge to the conviction, it has been essentially contended on behalf of the appellant that the consistent assertions of witnesses PW-1 to PW-6 that the deceased died in hospital due to illness cannot be ignored, given that they have not been declared hostile or cross-examined by the prosecution; that the inquest report was unreliable because it was not proved as to from where the dead body was brought to the police station; that the date of arrest of the appellant is questionable with reference to the overwriting in arrest memo; that the place of incident has not been proved because the site plan (Ex. 3) was not enclosed with the charge-sheet; that the medical evidence alone is not decisive of the 3 ‘CrPC’, for short. 4 ‘IO’, for short. A B C D E F G H 726 SUPREME COURT REPORTS [2022] 18 S.C.R. A B C D E F G matter; that non-explanation or falsity of explanation as required under Section 106 of the Indian Evidence Act, 18725, cannot be a ground for conviction; and that the prosecution has failed to prove motive. On the other hand, it is contended on behalf of the respondent-State that when the deceased was the wife of the appellant and they were living together, burden was heavy upon the appellant to explain the cause of unnatural death of his wife, which he had failed to discharge. It has also been contended that the appellant was absconding after the incident and was arrested two days later; and the plea of alibi with reference to his going to other place for purchasing medicines has not been proved. It has further been contended that the depositions of PW-1 to PW-6 as regards the alleged illness and hospitalisation of the deceased need to be rejected because of want of corroborative evidence and then, being falsified by the inquest report drawn at the police station. Thus, according to the respondent-State, the concurrent findings recorded in this case against the appellant call for no interference. Relevant factual and background aspects

3. With reference to the outline as above and looking to the questions arising for determination in this appeal, the relevant factual and background aspects could be noticed, in brief, as follows:

3.1. As per the prosecution case, the deceased Samina Begum was married to the appellant about 3 years prior to the date of the incident and was living with the appellant in village Kursapakhari Part II (Kumarkhali), falling within the jurisdiction of Police Station, Lakhipur, District Goalpara, Assam. It has been alleged that on 22.10.2010 at about 4:00 p.m., PW-1 Md. Akbar Ali brought the dead body of Samina Begum to the said Police Station, Lakhipur and lodged an ejahar (Ex. 1) stating that the deceased was the daughter of his nephew and was married to the appellant but, ever since the marriage, the appellant had been inflicting physical and mental torture on her; and that day (i.e., on 22.10.2010) at around 12:00 noon, the appellant assaulted the deceased with lathi and bare hands, as a result of which she died. It was further stated by the informant that the incident was an outcome of the conspiracy hatched by the appellant along with other accused persons, namely Sanowar Hussain (brother of the appellant), Rabia Khatun (mother of the appellant), Zabeda Khatun (sister-in-law of the appellant), and Md. Rajab Ali (relative of the appellant). On the basis of the ejahar so made by PW-1 Md. H 5 Hereinafter referred to as ‘the Evidence Act’. MD. ANOWAR HUSSAIN v. STATE OF ASSAM [DINESH MAHESHWARI, J.] 727 Akbar Ali, FIR No. 398 of 2010 was registered at the said Police Station, Lakhipur for offences under Sections 498-A, 302, 120-B IPC. A

3.2. As per the assertion of the Investigating Officer, PW-7 Anowar Hussain, after registration of FIR, he held the inquest at the police station where he noticed injuries on the eyes and cheeks as also on the neck of the deceased; and drew up the inquest report (Ex. 2) in the presence of four persons. Thereafter, the dead body of the victim was sent for post-mortem examination to Civil Hospital, Goalpara. On 23.10.2010, PW-8 Dr. Madhab Kr. Rahang conducted the post-mortem examination and, in his report Ex. 4, opined that the cause of death had been asphyxia due to throttling, which was homicidal in nature.

3.3. The Investigating Officer, PW-7 Anowar Hussain, asserted that he visited the place of occurrence and drew the site plan (Ex. 3) but he did not find the accused-appellant there; and later arrested him on 24.10.2010 at Nidanpur market, away from the place of occurrence.

3.4. After completion of investigation, on 29.06.2011, the charge- sheet was filed only against the appellant for the offence under Section 302 IPC while the other persons were let off for want of positive evidence against them. On 16.03.2012, the case was committed to the Court of Sessions. The learned Sessions Judge, Goalpara framed the charge under Section 302 IPC against the accused-appellant who pleaded not guilty and claimed trial.

3.

In evidence, the prosecution examined eight witnesses and also produced documentary evidence. After the prosecution evidence, the accused-appellant was examined under Section 313 CrPC on 14.05.2013. The accused-appellant did not lead any evidence. Ultimately, after having heard the parties, the Trial Court, by its judgment dated 18.07.2013, convicted the appellant of the offence under Section 302 IPC and then, after having heard the parties on the question of sentence, by its order dated 25.07.2013, awarded the punishment to the appellant of life imprisonment and a fine of Rs. 5,000/- with default stipulations.

4. For the purpose of appreciating the findings recorded in this case, worthwhile it would be to take note of the salient features of the prosecution evidence emanating from the relevant depositions and documents as also the salient features emanating from the stand taken by the appellant in his examination under Section 313 CrPC. B C D E F G H 728 SUPREME COURT REPORTS [2022] 18 S.C.R. A Prosecution Evidence

5. As noticed, the prosecution has examined eight witnesses in this case. PW-1 to PW-6 were the private witnesses whereas the IO was examined as PW-7 and the doctor conducting post-mortem was examined as PW-8.

5.1. As per the prosecution case, PW-1 Md. Akbar Ali, grandfather of the deceased, had taken her dead body to the police station and made the ejahar (Ex. 1), on the basis whereof FIR in question came to be registered. He had also signed the report (Ex. 2) said to have been made after inquest over the dead body at the police station. He, however, came out with a different narrative in his deposition while suggesting illness and ‘hospitalisation of the deceased. For its relevance, we deem it appropriate to reproduce the entire of his deposition as follows: -

Ext. 1 is the Ejahar and Ext. 1(1) is my signature. I know accused Anowar Hussain, who is present in the dock. Deceased Samina Khatun was my granddaughter. She was the daughter of Taher Ali and the wife of the accused. The incident took place about 2(two) years ago. Samina got married to the accused about 2(two) years prior to the incident. She had been leading her conjugal life with her husband in another village. Samina had been suffering from illness since 10/15 days prior to the incident. One day, all of a sudden, I heard that Samina had been taken to hospital. Later I heard that Samina had died. I only know that she was sick and I know nothing else. Their relationship as husband and wife was cordial. Going to Lakhipur Hospital I saw Samina’s dead body. The Ejahar was written by another person. At that time, I was not mentally stable. As I was asked to put my signature, I put my signature therein accordingly. Later police came and prepared the inquest report on the dead body. I put my signature on it. Ext. 2 is the inquest report and Ext. 2(1) is my signature. I know these much only. XXXXXXXXXXX I don’t know who had written the ejahar and what was written in it. The houses of Kitab, Sahar, Anser etc. are there near the accused person’s house.

B C D E F G H MD. ANOWAR HUSSAIN v. STATE OF ASSAM [DINESH MAHESHWARI, J.] 729

5.1.1. The relevant contents of the ejahar (Ex. 1), admittedly lodged by this witness PW-1 Md. Akbar Ali, on the basis whereof FIR in question came to be registered, could also be usefully reproduced as under: -

Humble submission is that Must. Samina Begum, daughter of my nephew Sayed Ali of Kantapur, was married off to Anowar Hussain of Kursapakhari Part- II (Kumarkhali) village about 3 (three) years ago. Since after the marriage accused No. 1 had been inflicting physical and mental tortures on her. Today, i.e. on 22/10/10, Anowar Hussain confronted Samina Begum inside his own house and grievously injured her in various parts of the body by assaulting her with lathi and bare hands, as a result of which she died. The said incident was the outcome of the conspiracy hatched by the below named accused persons. Be it mentioned herein that the said incident took place at around 12 noon today. I, therefore, pray to you to take necessary action after investigating into the matter.

5.2. PW-2 Sofiur Rahman stated that the deceased Samina was granddaughter of his cousin; that on the relevant day at around 12:00 noon, he heard in the market that Samina had died; and that he went to the hospital and saw her dead body there.

5.3. PW-3 Barek Ali also stated that the deceased Samina was his granddaughter. Though he asserted that he heard about Samina having died after consuming poison and he went to hospital but, did not deny one part of the prosecution case that the inquest report (Ex. 2) was bearing his signature and that after the inquest, the police sent the dead body for post-mortem examination. Owing to its relevance, the entire of his deposition could also be reproduced as follows: -

I know the complainant Akbar Ali. I know the accused person present in the dock. Deceased Samina Khatun was the wife of the accused. The incident took place about 1½ years ago. I heard that as Samina had fallen sick, she had been taken to hospital. She died there. I went to the hospital. I heard that Samina had died as she had consumed poison. By the time I reached the hospital, Samina had died. I know this much only. Later the complainant, the grandfather of the deceased lodged an ejahar, whereupon police came. I too went there. Ext. A B C D E F G H 730 SUPREME COURT REPORTS [2022] 18 S.C.R. 2 is the inquest report. Ext. 2(2) is my signature. Thereafter, Police sent the dead body to the hospital for post-mortem examination. XXXXXXXXXXX Deceased Samina was my granddaughter. The house of the accused is about 1½ k.m. away from that of mine. It is in another village. Near the accused person’s house there are houses of Zafar, Afzal, Sahar and Kader etc. Kader’s house is close by while those of the rest are a little distance away.

5.4. PW-4 Sukum Ali also stated in tandem with other witnesses that Samina died in the hospital but testified to the fact that inquest report (Ex. 2) was prepared by the police bearing his signature and then, the dead body was sent by the police to the hospital for post-mortem examination. His deposition could also be usefully reproduced as under:-

I know complainant Akbar Ali. I know accused Anowar who is present in the dock. The deceased was the wife of the accused. The occurrence took place about 2(two) years ago. Samina died in the hospital. Villagers said that Samina had been taken to hospital. I went to the hospital and found her dead. The complainant filed a case in this regard. Police came and prepared inquest report on the dead body. I put my signature in the inquest report. Later police sent the dead body to hospital for post mortem examination. Ext. 2 is the inquest report and Ext. 2(3) is my signature therein. XXXXXXXXXXX Declined.

5.5. PW-5 Dilbar Hussain and PW-6 Musstt. Moimma Bewa stated in their depositions that they heard about Samina having been taken to hospital and having died in the hospital.

5.

As noticed, the aforesaid witnesses PW-1 to PW-6 deviated from the prosecution case and asserted that the victim lady fell ill, was taken to the hospital, and she died in the hospital. However, giving ejahar (Ex. 1) by PW-1 and holding of inquest at the police station with signatures of witnesses on the inquest report (Ex. 2) are the facts duly established A B C D E F G H MD. ANOWAR HUSSAIN v. STATE OF ASSAM [DINESH MAHESHWARI, J.] 731 from the relevant statements. We shall examine these and cognate aspects at the relevant stage later. A

5.

At this stage, it would be appropriate to take note of the entire of the testimony of the Investigating Officer PW-7 Anowar Hussain, who stated as under: - “On 22/10/2010, I was on duty in Lakhipur Police Station. On that day, upon receipt of an ejahar from one Akbar Ali, the then Officer- in-charge of Lakhipur Police Station registered a case and entrusted me with the charge of its investigation. Ext. 1(2) is the signature of the then O/C of Lakhipur Police Station Kamal Chandra Seal, which I am familiar with. The dead body of Samina Khatun was also brought (to P.S.) at the time of lodging the Ejahar. The deceased was the wife of accused Anowar. I held inquest on the dead body. Ext. 2 is the inquest report and Ext. 2(4) is my signature. I sent the dead body to Goalpara Civil Hospital for post mortem examination. I visited the place of occurrence and examined the witnesses. I drew a sketch map of the place of occurrence.

5.

PW-8 Dr. Madhab Kr. Rahang had conducted the post mortem and opined that the cause of death was asphyxia as a result of throttling, which was homicidal in nature. He testified to the post-mortem report (Ex. 4) wherein he had reported on the condition of the dead body, inter alia, as under: - i) Bleeding from both ears. ii) Tongue was protruded. iii) Multiple petechial haemorrhages in eyes and face. MD. ANOWAR HUSSAIN v. STATE OF ASSAM [DINESH MAHESHWARI, J.] iv) Crescentic abrasions on both sides of neck. v) Bruising and ecchymosis in front of both sides of neck (finger marks). vi) Tear of larynx and muscles in front and side of the neck. vii) Laceration of larynx. viii) Both lungs were engorged and congested. 733 A B ix) Right heart was distended with blood while left was empty. x) Petechial haemorrhages in liver, spleen and kidneys.

5.8.1. This witness PW-8 Dr. Madhab Kr. Rahang stated in his C cross-examination as under: -

I have not mentioned the number of marks of finger in my post mortem report. Gristly mark signifies nail mark. Trachea is a separate part and larynx is a separate part. Trichoid bone has separate component. I had not dissected cardiac artery. I had observed cardiac arteries; but there was no finding record of any abnormality. If trachea is blocked, then the person may die. Death may occur in the event of blockade of Vegas nerve. It is not a fact that without dissection of carotid nerve, it cannot be ascertained if there was any pressure of the Vegas. I have not dissected any part of the neck to give the finding. Colour of ecchymosis was not mentioned. It is not a fact that such kind of death may occur by external force of handle of a tube-well or through falling object on the neck. It is not a fact that death was not due to strangulation. It is not a fact that that I have not given proper finding.

Stand of the appellant

6. In his examination under Section 313 CrPC, the circumstances appearing from the evidence led by the prosecution were put to the appellant. While he denied as false the allegations about his having caused the death of his wife Samina and also denied the assertions made by PW-7, the IO and PW-8, the doctor but then, he specifically stated that Samina died in hospital and for that matter, stated his agreement with the assertions made by PW-1 to PW-6. The appellant also stated that he was arrested at Borabara where he had gone to bring medicines for D E F G H 734 SUPREME COURT REPORTS [2022] 18 S.C.R. A B C D E F G H himself, as he was ill at that time. The relevant question and answers in the examination of the accused-appellant under Section 313 CrPC read as under: -

*** *** *** Q2 PW1 Akbor Ali is the grandfather of the deceased and according to him Samina your wife was suffering from illness. On a fine morning he heard that Samina your wife was taken to hospital Subsequently he came to know that Samina had died in the Hospital. What do you have to say in this regard? Ans: Yes, Samina died at hospital. Q3 PW2 is Sofior Rahman and in his evidence states that on the eventful day he went to a weekly market. At noon hour he came back home and heard Samina your wife had died. He went to the hospital and had seen the dead-body there. What do you have to say in this regard? Ans: Yes. Q4 PW 3 is Barek Ali and according to him Samina your wife was taken to hospital as she fell ill. Subsequently he came to know that Samina your wife died at hospital. He went to the said hospital and had seen the dead-body. What do you have to say in this regard? Ans. Yes. Q5 Q6 Q7 *** *** *** *** *** *** *** *** *** Q66 PW7 the IO states that while he visited your house i/c with this case you were not found there. No body could tell your whereabouts. Subsequently he came to knows that you were roaming at Nijampur the IO went there and arrested you from the road of Nijampur. What do you have to say in this regard? 6 This question, though number 8 in continuity, has been mentioned as ‘Q6’ in the original. MD. ANOWAR HUSSAIN v. STATE OF ASSAM [DINESH MAHESHWARI, J.] 735 Ans. I was arrested by police not at Nijampur but at Borabara a little distance away from there; I was there to bring medicines for myself as I was ill at that time. *** *** ***

6.1. The accused-appellant declined to lead any evidence and hence, the matter proceeded for hearing and ultimately, led to the impugned judgment and order dated 18.07.2013/25.07.2013. Trial Court found the appellant guilty and awarded life imprisonment

7. Having taken note of the major features of the evidence on record and the stand of the prosecution witnesses as also of the accused- appellant, we may summarise the relevant aspects of the decision of the Trial Court and its process of reasoning.

7.1. In the first place, the Trial Court noticed the point calling for determination in the matter, i.e., as to “whether the accused committed murder by intentionally causing the death of his wife Samina Khatun, on the eventful day i.e. 22.10.2010, at about 12:00 noon, at village Kurshapakhri Part II (Kumarkhali) in his house?”

7.2. After taking into consideration the testimony of PW-8 who had conducted post-mortem examination, the Trial Court observed that it was clearly established that the cause of death was asphyxia due to throttling, which was ante-mortem and homicidal in nature; and though the defence had cross-examined PW-8 on certain points, but had failed to derange these findings. The Trial Court observed and held as under: -

…The defence cross examined this doctor on some point; but it has failed to disrupt any finding of the doctor on the matter that the deceased died due to asphyxia as a result of throttling. I have drawn a serious attention to this piece of evidence and am not inclined to take a contrary view as regards the cause of death of the deceased. It was done by throttling. Now, the question is who the author of this crime. To seek answer of this query, we have to revert back to the evidence on record.

7.3. Coming to the question as to who was the author of this crime, the Trial Court, while dealing with the testimony of PW-1, noticed that though he alleged in the FIR that the appellant committed the murder of his granddaughter but, took a somersault while deposing in the Court A B C D E F G H 736 SUPREME COURT REPORTS [2022] 18 S.C.R. A B C D E F G H and stated that being mentally unstable, he acted to the dictates of others and affixed his signature on this piece of paper. The Trial Court also observed that this witness attempted to give a different direction to the prosecution story by taking the stand about illness and hospitalisation of the victim before her death. The Trial Court deduced that this witness was apparently won over, particularly when his narrative was running counter to the evidence of the doctor conducting post-mortem examination, who had categorically stated that the victim died due to throttling. The Trial Court also noticed that the other (private) witnesses had deposed more or less on the same lines, may be in slightly different directions; and found no reason to accept their suggestion about demise of the victim in hospital due to illness, for obvious inconsistency with the initial version in the FIR as also for want of clarification of basic questions as to who, if at all, brought the victim to hospital and when.

7.4. Thereafter, the Trial Court analysed the testimony of PW-7 Anowar Hussain, the Investigating Officer who asserted that on 22.10.2010, the FIR and dead body were received at the police station simultaneously; that he carried out inquest, prepared the inquest report (Ex. 2), and dispatched the body for post-mortem examination; and that subsequently, he visited the site of incident, examined material witnesses, and drew up sketch map of the site (Ex. 3). The Trial Court also rejected the objection of defence against acceptance of the site plan (Ex. 3) in evidence while observing that the defence had failed to satisfy as to why the said material piece of evidence, be not brought on record. The Trial Court further noticed from the testimony of PW-7 that when he visited the place of occurrence, he did not find the appellant; and upon receiving the information that the appellant was roaming at Nidanpur, he reached there and took the appellant into custody.

7.5. The Trial Court also took note of the fact that in his statement under Section 313 CrPC, the appellant took the plea that he was ill at that time and had gone to Nidanpur to get some medicines but no medicine was found by PW-7 in his pocket. The Trial Court observed that the plea taken by the appellant was nothing but a lame excuse; and that the appellant had also failed to specify as to who took his wife to hospital, if at all she had fallen ill.

7.6. Thus, after taking into account the overall evidence on record and after appreciating all the surrounding factors, the Trial Court concluded that the prosecution had been able to establish the guilt of MD. ANOWAR HUSSAIN v. STATE OF ASSAM [DINESH MAHESHWARI, J.] 737 appellant for commission of offence in question beyond any doubt. The relevant observations and findings of the Trial Court read as under: - A “16. Now, we come to the most material part of the evidence. Here, the I.O. has stated, in no uncertain terms that when he visited the place of occurrence, he did not find the accused thereon. From the evidence of other witness, it somehow comes to light that the victim was shifted to hospital in the morning hour. Now, the question is who had shifted her. All the witnesses deposed in different directions; but the justice cannot be left to be defeated, even if all attempts are made by the witnesses to derail the course of justice. Now, reverting back to the evidence of PW-7, it comes to light that he made enquiries as regards disappearance of this accused from his house; but none could furnish any satisfactory information as to why he was missing from his house. Subsequently, the I.O. came to know that the accused was roaming at Nidanpur. He immediately left for that place and on reaching there, he found the accused roaming aimlessly at that place and he, immediately, brought the accused under his custody. In the instant case, none had seen the actual occurrence. From the medical evidence it stands amply established that the deceased/ wife of the accused suffered homicidal death. Her neck was throttled and she was done to death.

From Ext.2, the inquest report, it appears that the I.O. has noted that there appeared spot around the neck of the deceased ad the body was stiff. The doctor while performing post mortem examination, has found that there was rigor mortis present there on the whole body. There was also bleeding from both ears. He also noted protruded tongue. Multiple petechial haemorrhge were seen in eyes and face. Some bruising and eccymosis were also found on both sides of the neck. The fact that the death was caused by act of throttling stands abundantly established in the instant case. The accused, during the whole trail, kept his mouth shut. There are cogent and convincing evidence on record to hold that both the accused person and the victim were residing in the same house together. Death occurred to the wife of the victim. The parents and other members of the house were all present there. None deemed it fit to inform the accused as regards her falling seriously ill if ever there was any tinge truth in it. Even the B C D E F G H 738 SUPREME COURT REPORTS [2022] 18 S.C.R. accused did not elaborate on the matter as to who took the victim to hospital after ever she had fallen ill. The whole matter has been stage-managed. The involvement of the accused in this offence is beyond doubt and is writ large on the face of record. He was roaming here and there somewhere else. He took the plea in his examination u/s 313 Cr.P.C. that he was ill at that time. So, he went to Nidanpur to get some medicines; but the I.O. had not found any medicine in his pocket. Even this plea remains a lame excuse. Just to save the skin from this heinous offence, the accused has taken such plea. The death of his wife occurred in an unnatural condition. He remained unmoved. He even did not throw light as to what had happened prior to her death. It did no good to the accused to remain taciturn on the entire matter. Death occurred due to throttling. The accused must explain what happened at that time. His keeping mum, during the entire trail, points to his guilty conscience. Upon overall analysis of the entire evidence on record in its right perspective, this court is constrained to hold that the prosecution has been able to establish the guilt of the accused for commission of offence u/s 302 IPC beyond all shadows of doubt. Hence, the accused is found guilty and he is accordingly convicted.”

7.7. At the time of hearing on the question of sentence, the Trial Court noticed an application on behalf of the accused-appellant for re- examining PW-8, the doctor conducting post-mortem, for correction of certain expressions occurring in his deposition. The Trial Court found such expressions not having any serious effect on the prosecution case as regards the cause of death. It was also argued before the Trial Court that there was no mens rea on the part of the appellant and the offence may be scaled down to Section 304 Part II IPC. However, this submission was found unacceptable by the Trial Court looking to the overall circumstances including the cause of death of the victim and the conduct of the appellant, where he fled from the house and offered no explanation as to the cause of death of his wife. Finally, the Trial Court, by its order dated 25.07.2013, awarded the punishment to the appellant of life imprisonment and a fine of Rs.

5,000/- with default stipulations. The relevant observations and conclusion of the Trial Court read as under: - “22. I have very attentively gone through the case record and have taken into account the submission of the learned counsel on A B C D E F G H MD. ANOWAR HUSSAIN v. STATE OF ASSAM [DINESH MAHESHWARI, J.] 739 the matter that, the accused, if ever be held guilty, he should be sentenced u/s 304(2); but I do not agree on this matter. There are abundant evidence on record to hold that it was an unnatural death. Death was caused to the effect of strangulation and it happened in the house of the accused. But the accused fled away there- from and he had no explanation worth his name how death occurred in the house; he remained silent throughout the entire trial and he had even not taken a plea that it was caused by some other persons. The other witnesses tried to derails the course of justice by trying to confuse the court on different pleas.

Some of them took the plea that the victim died of consumption of poison, other pleaded that she was suffering from diseases; but there is no evidence on record on that point. Rather the evidence so surfaced upon critical analysis of the entire evidence on record is justified to the fact that it was none other than accused who caused death of his wife in his house and after causing this heinous offence he escaped there-from and was loitering in that area i.e. at Nidanpur where he was finally detected by the police and rounded up. The prosecution has succeeded to establish the guilt of the accused for commission of offence u/s 302 IPC. There is no mitigating circumstance to deal leniently in favour of the accused scaling down the offence to any other section. Having found abundant evidence on record, this court finds him guilty for committing the offence u/s 302 IPC and sentence him life imprisonment and a fine of Rs. 5,000/-, i/d to suffer RI for three months.” High Court dismissed the appeal filed by the appellant

8. Aggrieved by the judgment and order aforesaid, the appellant filed a criminal appeal, being Criminal Appeal No. 100 (J) of 2013, before the Gauhati High Court that has been considered and dismissed by the High Court by its impugned judgment and order dated 19.08.2016.

8.1. The High Court noticed the fact that the Trial Court had convicted the appellant mainly relying upon the post-mortem examination report as also the fact that no plausible explanation was given by the appellant regarding the homicidal death of his wife. The High Court again took note of the essential features of the evidence and particularly referred to the fact that the inquest report (Ex. 2) was drawn at the police station itself bearing the signatures, inter alia, of PW-1, PW-2, PW-3 and PW-4. The story as put forward by these and other private A B C D E F G H 740 SUPREME COURT REPORTS [2022] 18 S.C.R. A B C D E F G H witnesses about the death of Samina in hospital due to illness was rejected with reference to the fact that there was no corroborative evidence in that regard and on the contrary, the post-mortem examination report (Ex. 4) falsified the story that she had died due to illness. The High Court specifically observed that if at all Samina had died in the hospital due to illness, there was no occasion for the aforesaid witnesses to carry her dead body to the police station.

8.2. Having said so, the High Court referred to a decision of this Court in Trimukh Maroti Kirkan v. State of Maharashtra: (2006) 10 SCC 681, on the principle that when the incriminating circumstances are put to the accused and the accused either offers no explanation or his explanation is found to be untrue, it becomes an additional link in the chain of circumstances against him. The High Court found that, in the present case, when the appellant and his wife were living together and the appellant-husband failed to offer plausible explanation about the homicidal death of his wife and there was no evidence as regards her alleged illness or demise in hospital, it was a strong circumstance that he alone was responsible for the crime.

8.3. The High Court, therefore, dismissed the appeal while observing, inter alia, as under: - “9. As seen above, Akbar Ali (PW-1) not only carried the dead body of Samina to the Police Station, he also made the ejahar alleging that appellant had tortured her to death. And at the Police Station itself, Investigating Officer Anowar Hussain (PW-7) made inquest report exhibit 2 on the dead body, which even bears the signatures of Akbar Ali (PW-1), Barek Ali (PW-3) and Sukum Ali (PW-4). But during the trial, all these witnesses changed their versions and deposed that Samina died in the hospital due to illness. This, perhaps, they did because of their relations with the appellant. Similar is the evidence of Dilbar Hussain (PW-5) and Mustt. Moimma Beuwa (PW-6). They too have testified that Samina died in the hospital due to illness. But, no record of any hospital was produced in defence by the appellant to even suggest that Samina died in the hospital due to illness. On the contrary, post mortem examination report of Dr. Madhab Kumar Rahang (PW- 8) completely falsifies the defence of appellant that Samina died due to illness. Not only this, Anowar Hussain (PW-7) has categorically testified that inquest report on the dead body of Samina MD. ANOWAR HUSSAIN v. STATE OF ASSAM [DINESH MAHESHWARI, J.] 741 was made at the Police Station, which bears the signatures of Akbar Ali, Barek Ali and Sukum Ali. These witnesses have not denied their signatures in the inquest report. Had Samina died in the hospital due to illness, there was no occasion for Akbar Ali, Barek Ali and Sukum Ali to carry her dead body to the Police Station.

The Supreme Court in the case of Trimukh Maroti Kirkan vs. State of Maharashtra (2006) 10 SCC 681 has again approved the well settled principle that when an incriminating circumstance is put to the accused and that accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. In this case, the Supreme Court has also held that where a husband is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling house where the husband also normally resided and if the husband does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it was a strong circumstance pointing that he alone was responsible for the commission of crime.

The appellant has not disputed that at the time of incident Samina lived with him in the same dwelling house. Samina died due to throttling and her death was homicidal in nature. She also had injuries around her neck, apart from other injuries. No plausible explanation has been given by the appellant regarding her homicidal death. He has also not been able to produce even iota of evidence that she was suffering from any illness or died in the hospital due to illness.

We therefore find no merit in this appeal. The appeal is accordingly dismissed.” Rival Submissions

Assailing the judgment and order aforesaid, learned counsel for the appellant has put forward a variety of submissions to argue that the appellant has been convicted not on legal evidence but only on suspicion. Learned counsel would argue that the case of the prosecution is based on circumstantial evidence but, the only circumstances relied upon by A B C D E F G H 742 SUPREME COURT REPORTS [2022] 18 S.C.R. A B C D E F G H the Courts are of medical opinion and non-explanation or purportedly false explanation by the appellant. These circumstances, according to the learned counsel, do not justify a conclusion on the guilt of the appellant beyond reasonable doubt.

9.1. The learned counsel has strenuously argued that the date of arrest of the appellant remains questionable because, as per the version of PW-7 Investigation Officer, he was arrested on 24.10.2010 but, the arrest memo shows that he was arrested on 22.10.2010 and then, the said date was conveniently altered to 23.10.2010 and the same was endorsed by learned Chief Judicial Magistrate on 24.10.2010.

9.2. The learned counsel has also submitted that the place of incident has not been proved in this case as the prosecution has only relied upon the evidence of PW-7 that he inspected the place of incident and had drawn the site map but, in the case diary, there is no direct mention as to how did he reach there; and then, the Ex. 3 (site plan) was not enclosed with the charge-sheet. Even though an objection was raised before the Sessions Court, it was simply brushed aside by stating that the defence had failed to satisfy as to why this material piece of evidence be not brought on record. The learned counsel has further submitted that PW- 7 did not depose that Ex. 3 was prepared in the presence and as per the information of the appellant.

9.3. Learned counsel for the appellant has further emphatically submitted that all the independent witnesses, PW1 to PW6, have spoken in one voice that the deceased died in hospital due to illness, and thereby did not support the case of prosecution; and the prosecution neither declared them hostile nor cross-examined them to prove that they were speaking falsehood or were won over.

9.4. While assailing the evidence concerning inquest report (Ex. 2), the learned counsel has argued that there is no evidence on record as to from which place the dead body was carried to the police station; neither PW-1 has stated any such fact nor the IO PW-7 has spoken about the place from where the dead body was carried. This missing link, according to learned counsel, operates against the prosecution case.

9.5. Learned counsel for the appellant has further argued, with reference to the principles laid down in Sharad Birdhichand Sarda v. State of Maharashtra: (1984) 4 SCC 116 that the Courts ought not to MD. ANOWAR HUSSAIN v. STATE OF ASSAM [DINESH MAHESHWARI, J.] 743