High Court
Case Details
Crl.A. 172/2008 PRESENT HON’BLE MRS JUSTICE ANIMA HAZARIKA HON’BLE MR JUSTICE A. C. UPADHYAY A.C. Upadhyay,J. This appeal is directed against the judgment-and-order dated 27th of Aug ust, 2003 passed by the learned Sessions Judge at Hailakandi, Assam in Sessions case no. 14 of 2006, whereby and where under the appellant was convicted under S ection 302 of the IPC and sentenced to undergo life imprisonment and to pay a fi ne of Rs 5,000/- and in default to undergo rigorous imprisonment for two months more. 2. The fact leading to the filing of the appeal is as follows: Marriage of the informant’s daughter Nirjani Rabidas and the accused Ramcharan Rabidas was s olemnized in the year 1987. In the year 2003, she was driven out of her matrimon ial house by the accused. Finding no alternative, she took shelter in her patern al home. She returned to her matrimonial home on 16.8.2003, after some represent atives with the neighbours sent by the accused had approached her. 3. On 26.8.2013, around 11 AM, the accused requested the informant over phone to come to his house as his daughter, that is, his wife was seriously ill. With out waiting further time, the informant rushed to the accused’ house to see the dead body of his daughter with injury marks on her body and, on being asked, cam e to know that on previous night that is on 25.8.2003 at around 9 PM the accused and his family members had severely assaulted his daughter and his daughter die d as a result. However, the accused stated that his wife committed suicide. 4. On the basis of the above information, an investigation was launched by Officer-in-charge of Algapur police station and on completion thereof, submitted the charge sheet under section 302 of the IPC against the accused. 5. The case being exclusively triable by the Court of Sessions, the same wa s committed for trial by the learned Chief Judicial Magistrate at Hailakandi to the learned Sessions Judge. The learned Sessions Judge, Hailakandi, finding prim a facie materials against the accused above named, framed a formal charge under section 302 of the IPC. When the charge was read over and explained to the accus ed, he pleaded innocent and demanded a trial. 6. In course of trial, the prosecution examined as many as 7 witnesses: the y were cross-examined by the defence. On conclusion of prosecution evidence, the statement of the accused under section 313 of the CrPC, was recorded. The accus ed took the stand of total denial, and declined to adduce any evidence in his de fence. The learned Sessions Judge, on conclusion of hearing, convicted and sente nced the accused as afore-noted, giving rise to this appeal. 7.
Legal Reasoning
27 . The accused in his statement under section 313 CrPC has categorically stated that he had not tortured his wife, not to speak of killing her. On careful perusal of materials on record we find that the prosecution, exc ept creating a ring of suspicion, could not establish the charge against the acc used ’beyond all reasonable doubt’. There was also no eyewitness of the occurren ce. The prosecution tried to establish the charge on basis of circumstantial evi dence, but miserably failed to do so. Suspicion, howsoever strong, cannot replac e the proof. Evidence adduced by the prosecution, in our view, is found to be deficient to co nvict the accused for commission of the offence under section 302 of the IPC. In view of above discussion, we hereby set aside the conviction and sent 28. ence passed by the learned Sessions Judge, Hailakandi in Sessions Case No. 14 of 2006 . Consequently, the accused above named is acquitted and set at libe rty forthwith, if he is not required in connection with any other case. Send back LCR.
Arguments
Mr SC Biswas, learned counsel for the accused, vehemently submitted that the prosecution case is based only on circumstantial evidence, but in the trial prosecution has miserably failed to prove the charge against the accused ’beyon d all reasonable doubt’. 8. Learned counsel for the appellant submitted that the victim committed su icide after spending 17 years of happy conjugal life. In all, six children were born to them during the seventeen years of married life, so any intent of killin g the wife could never be in the mind of the husband and as such the needle of s uspicion pointing towards the accused for murdering his wife is totally a basele ss and imaginary accusation made by the witnesses. The accused had no inkling th at his wife would commit suicide by hanging herself from a tree. 9. Learned counsel pointed out that suicide by hanging was exaggerated to c onclude that the death was caused due to strangulation. The ligature mark on the neck of the deceased was neither photographed nor was properly explained by the doctor, who conducted post mortem of the dead body. Learned counsel for the app ellant submitted that according to the doctor, there is no abrasion; no violence mark on the dead body, therefore it would not be proper to conclude that the de ceased was killed by the accused. 10. Mr KA Mazumdar, learned Additional Public Prosecutor, submitted that sin ce the prosecution has been able to establish the charge against the accused ’be yond all reasonable doubt’, no interference in the judgment-and-order of the lea rned trial court is called for. The accused was in the company of the deceased a t the time of her death, he owes an explanation to the cause of death of the vic tim, it was further submitted. 11. In order to appreciate the arguments advanced by learned counsel for the parties, we would like to state herein below the core of prosecution evidence. In order to decide whether the deceased was murdered or not, we need to scan the medical evidence. 12. PW5 (Dr KZ Choudhury), who conducted the post mortem on the dead body of the deceased, deposed as follows: One ligature mark of length 42.3 cm is seen running transversely and con tinuously round the lower part of the neck. The breadth of the ligature mark is 6mm. One knot mark of size 2.6cm in diameter is seen on the middle of the front of the neck. Another knot mark 3.1cm in diameter is seen adjacent and to the lef t to the previous knot mark. Multiple abrasions are seen on the upper lower part s of the ligature marks on the front, right and left side of the neck. Two abras ions are also seen on dorsum of the distal phalanx of the right index finger one abrasion each is seen on the dorsum of the sitphalangs of the left index and le ft middle finger respectively. 13. In his cross examination, PW5 stated that the symptom he found i n the neck of the deceased cannot be caused by hanging with rope and that the de ath would have been caused by wrapping rope around the neck and by pressing the rope. 14. It is apparent that the doctor was groping in the dark in finding out t he cause of death of the deceased. It would be appropriate to revert back to the evidence of other witnesses to find out whether the involvement of the accused in the murder has been established or not.. 15. PW1(Jamuna Rabidas), the informant of the case, deposed that the accused married his daughter in the year 1987 and after marriage both of them lived tog ether peacefully and six children were born from the wedlock. However, 3-4 years back the accused tortured her daughter and later drove her out of his house and finding herself in the lurch she took shelter in his house. 16. Thereafter, the accused with the help of some elderly persons of his vi llage could manage to take back his wife. After 8-9 days, the accused informed P W1 via telephonic message that his daughter was seriously ill due to high blood pressure. On getting that information, PW1 and one Monilal and Kalicharan went t o the house to know from Dhanraj Rabidas and Lalji Rabidas that his daughter was subjected to torture by the accused on the previous night and she died as a res ult. In his cross examination, PW1 clearly stated that on being asked he was 17. told by the accused that his daughter had committed suicide by hanging. 18. However, prosecution witnesses Dhanraj Rabidas(PW4) and Lalji Rabida s(PW7) did not corroborate the fact of causing injury to the deceased by the acc used as stated above by PW1. The evidence of PW4 reveals that the accused went to his house to inf 19. orm that his wife committed suicide and accordingly the PW4 advised the accused to report the mater to the police. PW4, President of the local gaon panchayat, s tated that he informed the police about the incident. 20. PW6, Officer-in-charge of Algapur police station, who, on completion of the investigation, submitted charge sheet under section 302 of the IPC agaisnt t he accused. Though this witness in his deposition stated that the accused had co nfessed the guilt before him, but it appears from the record that the accused ha d declined to confess before the Judicial Magistrate. 21. PW7, the ’star witness’ of the prosecution, was declared hostile. I t may be stated here that the statement of PW7 was recorded in terms of provisio ns of section 164 of the CrPC. PW7 has categorically stated that around four yea rs ago at night hours when he was on way back home from duty, his younger sister informed him that she had seen the wife of the accused hanging from a tree. He aring that news, PW7 rushed to the spot to see with a torch light. PW7 found the victim hanging from a tree standing on the backside of his house. Immediately t hereafter, PW7 raised hue and cry and called out the accused. According to PW7, the accused, along with some of his family members, rushed to the spot and broug ht down the dead body from the tree. 22. From the evidence of PW7 it clearly appears that the accused in a berserk frenzy brought down the dead body from the tree in presence of PW7. Ap parently, there is no evidence that the accused was seen assaulting or killing t he victim. 23. It is now well-settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incrim inating circumstances by reliable and clinching evidence and the circumstances s o proved must form such a chain of events as would permit no conclusion other th an one of guilt of the accused. The circumstances cannot be on any other hypothe sis. It is also well-settled that suspicion, however, grave may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. [See Anil Kuma r Singh v. State of Bihar : (2003) 9 SCC 67 and Reddy Sampath Kumar-v- State of A.P. 2005 Cri.LJ 4131. It appears in the instant case, no motive whatsoever could be deci 24 . phered for the commission of the offence alleged to raise accusing finger toward s the accused. Furthermore, the death of the deceased was caused in suspicious c ircumstances. The post mortem report of the deceased reveals that the deceased d ied due to strangulation. Virtually there was no injury mark on the body of the deceased except the strangulation mark. Such a mark of injury may also be caused in a suicidal hanging. 25. Having heard the learned counsel, appearing for both the parties and carefully perusing the evidence, on record, we find that both the appellant and the deceased used to live in the same house. Such presence of the appellant normally, leads to the presumption about the involvement of the appellant. Bu t the presumption, how so ever high cannot be substitute for legal and substanti ve evidence. Criminal jurisprudence requires the prosecution to prove the allega tions, brought against the accused person (s), beyond all reasonable doubt by ad ducing cogent, reliable and substantive evidence. To apply the last seen theory as submitted by Mr. Mazumdar, learned Addl P.P., it must be established that the deceased was seen in the company of the accused, immediately before death. Henc e, the time gap between the period, when the deceased was seen alive in the comp any of the accused and the time when the dead body was found or the deceased die d is important factor. In the present case, there is nothing on record to show that none except the appellant was in t he company of the deceased till the latter’s death. Therefore, the finding o f the dead body of the deceased in their house cannot be treated as legal and su bstantive evidence to base the conviction. In fact there is no evidence to show that the accused and the deceased were last seen together. 26. In the instant case, though the accused and the deceased wer e living in the same house, but the occurrence took place in the dead of night. There were other inmates in the house. There is no evidence that the accused w as alone with the deceased just before her death. The deceased committing suici de, in the dead of night cannot be ruled out. No inmate of the house was examine d to establish that the accused and the deceased were together immediately befor e the dead body of the deceased was found.