High Court · 2012

Heard Ms.M.Bujarbaruah, learned counsel for the appellant and Mr

2. The sentence serving appellant takes on the judgment and order dated 18.1.2006 passed by the learned Sessions Judge, Jorhat in Sessions case N o.20(J)/03 whereby he has been convicted under Section 302 IPC and sentenced t o undergo life imprisonment together with fine of Rs.5000/-, in default of payme nt of fine, to undergo rigorous imprisonment for one year consecutively with the life imprisonment.

3. As per prosecution version the appellant was living with his wif e in a rented house. They had spent conjugal life for 10 years. Issueless they are, no other person lived with them. On 3.10.2002 at about 7 AM, some neighbou rs having noticed smoke in the couple’s rented house, rushed to enquire what ha d happened. When some neighbours knocked at the door, the appellant opened it t o be found standing unconcerned near his wife who was already engulfed and being burnt by fire. The visiting neighbours by pouring water doused the fire and s hifted the appellant’s injured wife to hospital for treatment. As ill luck would have it, she succumbed to her 90% burn injuries on the same day. The brother of the deceased filed written FIR against the appellant alleging commission of mu rder on his sister. On the basis of the FIR, the police registered Jorhat P.S.Ca se No. 353/02 under Section 302 IPC. The I.O. during investigation visited the p lace of occurrence, interrogated/ examined several persons, recorded statements under Sections 161 Cr.P.C., visited the injured in the hospital, recorded her dy ing declaration in presence of doctors and staff nurse of the hospital concerne d. After collection of post mortem examination report, the I.O. submitted charg e-sheet against the appellant under Section 302 IPC. On receipt of the case reco rds on committal, the learned Sessions Judge, Jorhat framed charge under Section 302 IPC against the appellant who, on being read over and explained of the same , pleaded not guilty and claimed to stand trial. 4. The prosecution, in order to bring home the charge, examined 1 1 witnesses in all, including the I.O., M.O and Inquesting Magistrate. The appe llant examined none in his defence. The learned Sessions Judge on appreciation o f oral and documentary evidence available on record, convicted and sentenced the appellant as mentioned above. There is no eye witness to the alleged incident o f murder. The learned trial court convicted and sentenced the appellant on the b asis of circumstantial evidence revealed from the deposition of some prosecutio n witnesses .Review on all the evidence of prosecution witnesses is an absolut e necessity for arriving at a correct decision. 5. The written ejahar was filed by P.W.3, Sri Nripen Ch.Sarkar, eld er brother of the deceased Smti Shanta Dey. He deposed that her sister died on 3 .10.02 and at that time he was at Tufanganj in West Bengal. On being informed by his other sister that Shanta received burn injury, he came to Jorhat on 4.10.02 and visited his sister Shanta at Damani Nursing Home, Dibrugarh, where she ha s already expired. Cremation took place on 5.10.02. When he came to Chinamora h e came to know from some nighbours of the appellant that it was the appellant h imself who set fire on Shatna. He then filed the Ejahar scribed by one Sri Dino Bora. He proved the FIR and his signature put thereon. According to him, during investigation, police recovered some articles and he put his signature on the s eizure list. The seized articles include plastic bottles, lamp, piece of burnt cloth and match box. In his defence, this witness stated that he could learn fro m her deceased sister that occasionally she had minor quarrel with her husband w hich never turned serious and she had thus spent 10 years conjugal life with the appellant. In cross-examination he stated that he does not remember the nam es of neighbours of the accused. He denied the suggestion of the defence counsel that he was never told by anybody that the accused set fire on Shanta. He also denied the suggestion that kerosene spilled over her body while she was fuelli ng the lamp and fire caught on her accidentally while she was igniting the gas stove. P.W.1, Sri Akhil Chand deposed that he used to live in an adjac 6. ent house. In the morning hours of the date of occurrence he was in the bathroom . On hearing hue and cry he came out and saw Arjun’s wife being burnt by fire. H e saw neighbours trying to douse the fire. They all doused the fire by pouring w ater. On being enquired the appellant’s injured wife told them that while clean ing the lamp kerosene spilled over her wearing Sari and fire caught on it whil e she lighted the gas. This witness stated that there was a good relationship be tween the accused-husband and the deceased-wife inasmuch as no quarrel took pla ce between them. P.W.2, Smti Tarawati Sunwani is the wife of P.W.1. At the time of alleged occurrence, she went out to drop her son in school bus. She also sta ted that on enquiry the appellant’s wife told her that fire caught her accidenta lly. The defence declined to cross examine these two witnesses. A medical office r, doctor Smti Jarik Ahmed was examined as P.W-4 who testified that deceased was admitted in her hospital by the accused Arjun Dey for treatment of burn injuri es. According to him, the injured was not in a position to speak at the time of her admission in the Nursing Home. She was reported by the escorts that the (cid:28)pat ient caught fire because of the L.P.G.Gas which caused fire on her saree and the re was also a kerosene gallon near the L.P.G.Gas. According to Medical Officer (cid:29) she had 95% burn injuries on her body. These burn injuries are sufficient t o cause death. The patient was admitted at 4 PM and she died after 3 hours 45 mi nutes i.e. on the same day. (cid:29)

7. One Swadhin Madak was examined as P.W.5. He is an employee of C ISF and he was residing in a rented house at Chinamara. His evidence is that at about 7.30 AM of 3.10.02 he heard a cry (cid:28)Bachaw! Bachaw (cid:29) and his wife looked ou tside by raising the window curtains and saw smoke coming out from the house o f accused Arjun Dey. They alarmed about breaking out of fire in the house of a ccused. He along with his wife rushed and tried to open the door of Arjun Dey’s house. On opening the door he saw Arjun standing near the door of bedroom where his wife was found being burnt in the kitchen. This witness being at a loss kep t standing outside. The accused Arjun also was not doing anything. There was no other person in the house as the couple was issueless. He poured water on Shant a to douse the fire. He then went out to arrange for a vehicle. His office colle ague Sri Akhil Chand called for a vehicle from CISF office. The injured was shif ted to and treated in Malpani Nursing Home.

8. P.W.6, Smti Sima Madak is the wife of P.W.5. She corroborated th e evidence of P.w.5. In cross-examination she stated that she did not go inside the house of accused Arjun. Her husband, P.W.5 also remained outside the house. She also stated that due to fire it was not possible to go inside the house. It was full of black smoke and due to such smoke it was not possible to tell who we re inside the house. Her husband,P.W.5 poured a bucket of water. The accused Arj un did not try to extinguish the fire and he remained standing. At that time Akh il Chand also arrived at the place of occurrence. She denied the suggestion that Shanta did not tell the police that she would not survive. She also denied the suggestion that on being asked Shanta told the police that the kerosene spilled on her Sari and caught fire when she ignited the gas.

9. P.W.7, Sri Tapan Chakraborty, was working as S.I. of police and In-Charge of Garamur Out Post. As per his evidence he received a message from Ch inamora police out post to the effect that Shanta, wife of accused Arjun was ad mitted in Malpani Nursing Home with burn injuries. He visited the said Nursing H ome and recorded the dying declaration of Shanta Dey. He opened a supplementary case diary and submitted the same to the I.O. One Debeswar Gogoi was the I.O. of the case. As P.W.8 he stated that he made a GD entry while he was at Chinamora outpost. He made a GD entry on 6.10.02 and requested the Jorhat Police Station to register a case. He visited the place of occurrence, seized some articles inc luding a plustic bottle containing kerosene, one old lamp, some half burn clothe s, a piece of silk cloth, match box with sticks, gas lighter and burner and prep ared a seizure list (Ext.3). He produced Sima Madak and Swadin Madak before the court for recording their statements under Section 164 Cr.P.C. He also prepared a sketch map, arrested the appellant and submitted charge-sheet. In cross-examin ation, he stated that he did not submit a copy of the dying declaration along wi th the charge-sheet.

10. P.W.9, Mrs. Swapna Dutta Deka, EAC (Executive Magistrate) posted at Dibrugarh, testified that on police requisition she held inquest on the dead body of Smti Shanta Dey, wife of accused Arjun Dey. The dead body was ident ified by the accused in presence of witnesses. The inquest report is marked as E xt.8 bearing her signature, Ext.8(1). After inquest she ordered for holding post mortem examination.

11. P.W.10, Sri Dinanath Bora deposed that he scribed the FIR as t old by the informant which was read over and explained to and on being satisfied , was signed by the informant.

12. P.W.11, Dr. B.C.Roymedhi, was serving as Professor and Head of t he Department of Forensic Medicine at Assam Medical College and Hospital, Dibrug arh. He testified that he held the autopsy on the dead body of Shanta Dey on 4. 10.02 and prepared the post mortem examination report. He described the wounds and position as under : (cid:28)Mostly superficial and partly dermoepidermal burn injuries present on the front , back sides of chest, front and sides and back of abdomen (mid-lower back part and parts of buttocks escaped from burn), both upper limbs , both lower limbs ( except soles of feet), neck, face and forehead. The burn injuries are pale, som e dry and some raw with raised hyperdermic margin (cid:29). And giving more detailed de scription of injuries the medical officer stated that the burn injuries are vary ing from 1st to 3rd degree and are occupying about 90% of the total body serfac e areas. He opined that the cause of death (cid:28) is shock as a result of antei mort em flame burn injuries sustained on the body as described. Approximate time sinc e death is 12 to 20 hours (cid:29)

13. There is no denial of the fact that the conviction in the event of want of ocular evidence, is rested on circumstantial evidence. The learned trial court relied on certain circumstances which are found to be against the a ppellant and considered them sufficient to award conviction. The main such cir cumstance are as follows: The accused was seen just standing in his bedroom nearby his burning wife who was lying in the kitchen and crying for help and yet he d (i) id nothing to extinguish the fire. (ii) The appellant did not call anybody for help while his w ife was crying for help to safe her life.

14. The learned trial court drew an inference of guilt against the a ppellant on the basis of evidence of P.W. 1,2,5 and 6. P.Ws 5 and 6 are husband and wife who after hearing the cry for help rushed to the rented house of the ap pellant. We have already noted earlier what P.W. 1,2,5 and 6 had deposed. From t heir deposition it is established that the appellant opened the door when the sa id witnesses knocked at the door. The presence of appellant in the house at the time of alleged incident has been proved. The said witnesses observed unusual co nduct of the appellant inasmuch as he did not do anything to extinguish the fire and he did not cry for help. But the learned trial court failed to take note o f the fact that on arrival of the said witnesses the appellant had to open the d oor. They are not supposed to know or see what the appellant was doing before th eir arrival to save his wife. The court cannot presume abruptly that the appella nt did nothing to save his wife. It is on record, particularly from the stateme nt of the appellant under Section 313 Cr.P.C., that he returned home after night duty in the early morning at about 5 AM and was sleeping. His wife asked him to sleep assuring him that she would wake him up after preparation of breakfast. While he was sleeping he had to wake up on hearing his wife’s cry for help and he wrapped her by a blanket to douse the fire. At that moment the aforesaid P.W s arrived at his house and he opened the door. The evidence of these four witne sses relates to the moment when the appellant opened the door but it does not re late to moments before opening the door in response to their knock at the door . They have seen the appellant standing at the moment he opened the door for the m to come in the house. So far, they, and for that matter, the learned trial co urt may be right in saying that the appellant was not seen doing anything. But t hose 4 witnesses had no occasion to see what the appellant was doing before open ing the door. The fact situation does not allow the court to draw an adverse in ference against the appellant that he did nothing to save his wife before arriva l of the neighbour witnesses inasmuch as there is no evidence to support this c laim. The said witnesses as well as the court were just influenced by the moment ary scene seen by them at the time of opening the door by the appellant. The lea rned trial court found fault in the conduct of the appellant as he did not sh out or cry for help when his wife was being engulfed by fire. The appellant’s co nduct was held to be unusual. We are not prepared to accept this view of the lea rned trial court that the conduct of the appellant was abnormal/ unusual. The e vidence on record is that his wife was already shouting /crying for help and it was quite natural that as husband of the victim, instead of just joining her in shouting/crying for help, he thought it proper to make attempt to extinguis h the fire. No doubt there is no evidence on it as none was present in the room at the relevant point of time. What we find most probable is that the appellant must have done something to save his wife by quietly making attempt to extingui sh the fire. We take this view because of the evidence of the aforesaid four wi tnesses that the relationship between the accused-husband and the deceased wife was good so much so there was no quarrel between them. These neighbour witnesse s had stated nothing about existence of any motive behind the alleged act of se tting fire by the accused on the deceased. It is beyond anybody’s imagination th at a couple having spent more than 10 years as husband and wife maintaining goo d relationship , would try to kill the spouse without any motive.

15. The learned trial court discarded and disbelieved all the statem ents of the appellant made under Section 313 Cr.P.C. In so far as it relates to the attempt claimed to have been made by the appellant that he tried to extingu ish the fire by wrapping his wife with a piece of blanket, the learned trial cou rt disbelieved it because the four neighbour witnesses have not stated about the use of blanket or any other thick cloth for putting off the fire that was bur ning Shanta and no such blanket/rug or any other piece of cloth was found by th e I.O. to be seized from the place of occurrence. Secondly the court below disb elieved the statement of the appellant because no injury was found on his hands nor were his wearing clothes found burnt as a mark of his attempt to douse and rescue his wife from fire. Thirdly, the learned trial court also disbelieved the statements of the appellant made under Section 313 Cr.P.C. with an observation that (cid:28)his wife ignited the gas stove for heating some milk but no milk or the pot used for burning milk or even any quantity of milk was found on or near the gas stove inside the kitchen of the accused (cid:29). In this regard, we are not prepare d to accept the view that while trying to put off the fire one must sustain burn injury or any other injury on his hand or his wearing clothes must be burnt. Re garding existence of blanket/rug at the place of occurrence to support the claim of the appellant that he used the kambal/rug to douse the fire, we would like t o refer the evidence of I.O(P.W.8). According to his evidence, he seized severa l items from the place of occurrence. He has not stated anything about blanket b ecause during investigation the fact of making attempt by the appellant to put o ff the fire by wrapping his wife with a blanket was not in his mind or he ever t hought of looking for any cloth like blanket that might have been used for extin guishing fire in a conventional manner. To say further, none inclusion of blanke t/rug in the seizure list would not mean that there was no blanket in the room and the appellant made no attempt to extinguish the fire and in the process, th e blanket if any found at the place of occurrence, should be found burnt. It mig ht be that when the appellant was trying to douse the fire, the neighbour witnes ses knocked at the door and he had to suspend his attempt to extinguish the fir e for some moments as he had to open the door to let the neighbours come insi de the house.

16. A doubt has been entertained by the court over the cleansing of kerosene lamp at the morning hour i.e at about 7 AM, igniting of gas stove for h eating milk as no milk or pot used for boiling milk or even any quantity of milk , was found at or near the gas stove in the kitchen. A doubt was also entertain ed by the court inasmuch as (cid:28) A lamp is not cleansed and is not replenished as t o its oil in a standing position but these things are ordinarily done by any per son in his /her sitting state. Kerosene oil could not therefore spill on the wea ring cloth of the victim above the waist if she was cleansing the chimney and re filling the lamp with kerosene. In doing so, kerosene oil would certainly have f allen or come in contact with the wearing sari to the extent below her waist (cid:29). T he court below also observed that (cid:28) A gas stove is placed ordinarily at the leve l of the waist and at the time of igniting the same the flame cannot touch the w earing cloth of the igniting person below the waist. So, the flame of the burnin g stove was not at all supposed to touch the wearing cloth of the victim below h er waist to catch fire for being imbibed with kerosene oil being an inflammable substance (cid:29). In this regard, we are not prepared to subscribe to the view taken by the learned trial court and come to a conclusion based on presumption. It is not always necessary that a lamp should or could be cleansed only at the sitting position by a woman at a particular time or it should or could not be done in t he early morning. One can also re-fill or replenish a lamp with kerosene at the standing position and the kerosene may spill while refilling the lamp below or above the waist depending upon the position at which the lamp was refilled. On e cannot say that fire may catch if the kerosene is spilled at certain places below or above the waist. There is no ocular evidence that the victim refilled t he lamp at her standing or sitting position. In an ordinary situation kerosene b eing an inflammatory object, if it is spilled on the sari or wearing apparel, i t is possible to be caught by fire as both the gas and the kerosene are inflamma tory objects; it does not matter whether the kerosene spilled below or above the waist or at any part of the sari/wearing apparels. The above circumstances, in our view, are not sufficient for tak 17. ing a view that the appellant set fire on the person of the victim causing death to her. The correctness or otherwise of the learned court below in arriving at the conclusion on the basis of circumstances enumerated, is liable to be tested within the four corners of 5 principles, popularly known as (cid:28)Panchasheel’ as l aid down by the Apex court in the matter of proving a case on circumstantial evi dence as evolved in Sharad Birdhichand Sarda -vs- State of Maharashtra; AIR 1984 SC 1622, wherein it has been held that the following conditions must be fulfill ed before a case against an accused based on circumstantial evidence could be s aid to be fully established: (cid:28) (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ’must or should’ and not ’may be’ established. (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved , and (5) there must be a chain of evidence so complete as not to leave any reason able ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accus ed. (cid:29) 18. Looking at the facts and circumstances of the present case, it i s considered appropriate to dwell on the principles No. 2,3 and 4 above. In the principle No.2, if we review the evidence on record, it would be found that the hypothesis projected by the prosecution is not consistent with the hypothesis o f guilt of the accused. We have already discussed earlier that the accused did something to save his wife from the fire. The prosecution has not been able to p rove that there is no other evidence of any witness that the accused in fact, d id nothing to extinguish the fire and save her wife. Merely because, at the tim e of opening the door he was found standing, it would not otherwise stand prov ed that he did nothing to douse the fire and he is guilty of committing murder or death of his wife. We do not find the circumstances placed or relied upon b y the prosecution conclusive in nature with tendency as insisted upon under pri nciple No.3. So also, we do not find the hypothesis pressed into service by the prosecution so sound that enables exclusion of every possible hypothesis excep t the one sought to be proved by the prosecution. In our above discussion, we ha ve undertaken an exercise to show that non seizure of blanket from the place of occurrence as a proof of attempt to extinguish the fire by the appellant, is n ot conclusive. Cleansing of lamp, refilling of lamp by kerosene at the sitting p osition only, possibility of spilling of kerosene on the sari or wearing appare l below waist only, possibility of catching fire above the waist and not below the waist at the time of igniting the gas stove are not at all circumstances whi ch may exclude every possible hypothesis except the one sought to be proved by t he prosecution. We are not satisfied that the prosecution has been able to prov e the case by circumstantial evidence strictly following the universally accepte d and followed principles called ’Panchaseel’.

19. In aid of our above view, we would like to rely on Trimukh Maro ti Kirkan -vs- State of Maharashtra; 2006 10 SCC 681. It was a case of circumst antial evidence and last seen together theory, in which murder took place in sec recy inside a house. The accused being the husband and the deceased being the w ife, were last seen together in the dwelling house, where they resided. That wa s a case under section 304 B IPC, dowry death. There was no eye witness to the i ncident that took place inside the dwelling house. Conviction was recorded in th e said case based on circumstantial evidence. It was held therein that circumsta nces from which an inference of guilt is sought to be drawn, must be cogently an d firmly established, that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused, that the circumstances tak en cumulatively should form a chain of so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation of any hypothesis other tha n that of guilt of the accused and inconsistent with their innocence. The circu mstances relied upon in the present case, in our opinion, do not come to the fo oting set forth by the Apex Court. Here we have loose circumstances capable of forming weak circumstantial evidence incapable of firmly establishing any case a gainst the appellant for conviction. Besides, we do not want to turn blind eye to the fact that the 20. I.O. of the case (P.W.8) committed a serious blunder inasmuch as he failed to s ubmit the dying declaration of the victim with the charge-sheet and prove the s ame in the court at the time of recording the evidence during trial. The dying declaration being not proved and exhibited, in the eye of law, attaches no ev identiary value. Notably the neighbour witnesses, P.W. 1,2,5 and 6, in their e vidence clearly sated that on being enquired by them the victim told them that t he fire caught her accidentally and her husband did not set fire on her. All tho se independent witnesses corroborated the evidence of each other. Can such corro borated evidence of the witnesses be disbelieved and an inference of guilt could be drawn against the appellant merely because some weak kind of circumstances a re found which may suggest guilt of the accused? We have already dealt with the nature and circumstances under which the learned trial court entertained the in ference using them as basis of conviction against the principles laid down in t he aforesaid cases. The dying declaration may not be accepted due to technical defect, yet the corroborated evidence of independent witnesses, PWs 1,2,5 and 6, must be allowed to prevail upon the circumstantial evidence relied upon by t he prosecution and the learned trial court in convicting the appellant.

21. In criminal law as against the inference of guilt, there is pres umption of innocence; that is to say an accused is presumed to be innocent unti l his guilt is proved; that is again, in other way to say that the prosecution h as to prove the guilt beyond all reasonable doubt, which implies that if the pro secution fails to prove the guilt the accused is entitled to be acquitted. Quest ion of inference arises depending on happening of primary fact. For example, if a person is in possession of some articles which he received/ purchased from a k nown thief, recovery of stolen article would be the primary fact open for draw ing inference of guilt against the possessor. As opposed to it, the primary fa ct established in evidence in the instant case is good relationship between the accused and the deceased as husband and wife. On the face of this primary fact, in our considered view, no inference of guilt could be drawn against the appella nt. If the relationship between the husband and wife is good, this being the pr imary fact, the other possible view that could be taken by the court in favour o f the accused, is that the husband never thought of or did anything to kill his wife. Benefit of the established principle of law that if on the same evidence two views are reasonably possible, the one in favour of the accused must be pref erred, is to be given to the accused. In this regard, without referring to host of decisions, it would suffice to cite the case of State of U.P.-Versus-Gambhir Singh;(2005)11 SCC 271. We see no reason for not taking a view of innocence in f avour of the appellant in the present case and not giving the benefit thereunder to him.

22. In view of the above review of evidence on record, discussion held based on established principles of law and also upon hearing the learned co unsel for the parties, we are bound to hold that the learned trial court gave undue importance and weightage on the loose circumstances and the weak circums tantial evidence which are not in conformity with the principles of conviction on circumstantial evidence laid down by the Apex court and thus hold the appel lant not guilty of charge brought against him. We do not subscribe to the findin gs and conclusion arrived at by the learned trial court in convicting the appell ant. We hold that the prosecution miserably failed to prove the charge under sec tion 302 IPC against the appellant beyond all reasonable doubt and the appellant is liable to be acquitted. The appellant accordingly stands acquitted and he be set at liberty forthwith if his further detention is not warranted in connectio n with any other case. Appeal stands allowed. We order payment of Rs.5000/- from the State Legal Services Auth 23. ority as legal fee to Ms M.Bujarbaruah, learned counsel for rendering legal serv ice as Amicus Curiae in this case. Send down the LCRs forthwith.