High Court · 2012

5. The prosecution examined as many as eleven witnesses, including the inve stigating officer. The accused-appellants took the stand of denial in their sta tements under Section 313 CrPC. On conclusion of hearing, the learned Addl. Sess ions Judge, (FTC), Barpeta convicted the accused-appellants Bapdhan Ali and Rosh an Ali only, under Section 302 & 34 IPC and awarded the sentence as aforesaid, g iving rise to this appeal from jail. However, the other co-accused persons, name ly Ramena, Tamena and Rukia were acquitted of the charges aforesaid by the learn ed trial court.

6. PW1, Md Sahjahan Ali stated in his deposition that his niece Nuria Begum(deceased) had married the accused Raushan Ali in the year 1998, and since then they were living together as husband and wife. According to PW1, on 31.5.20 10, there was a marriage ceremony at the house of Sanbar Ali, where both the acc used Roshan Ali and the victim were present. All of a sudden, a quarrel broke ou t between the couple. The accused Roshan slapped Nuria Begum and thereafter took her home at around 7.30 PM. On hearing a commotion coming from the side of the house of Nuria’s matrimonial home, PW1 rushed to the house of the accused and, o n being asked him victim Nuria told that she was set on fire by Bapdhan. Althou gh Nuria tried to come out with flames on her body, but the accused had not allo wed. PW1 could not go inside the house. PW1 requested Naren Basumatary to enquir e about Nuria. A little while later, the accused called the Gaoburah, to whom vi ctim , Nuria told that she had been set on fire by her in-laws. However, accord ingly to PW1, at first, Nuria could not say who had set her on fire. Immediately thereafter, the victim was taken to Nalbari Civil Hospital in a pushcart, where she succumbed to her burn injuries. According to this witness, after the death of Nuria, he lodged the ejahar(ext. 1).

7. During cross-examination by the defence counsel, it was specifi cally put to PW1 that he did not state before the investigating officer that the deceased had told him that Bapdhan had set her on fire, which PW1 denied. Howev er, PW10, the investigating officer clarified in his cross-examination by the de fence that PW1 did not state before him, during investigation that the deceased Nuria had told PW1 that the accused Bapdhan had set her on fire. In the circums tances, the above being a major omission, in the statement of P.W.1 regarding th e oral dying declaration made by Nuria before PW1, naming Bapdhan as the perso n to have set her on fire, cannot be believed to be true and trustworthy. Furthe rmore, P.W.2, Gaonbura, did not corroborate P.W.1 that victim Nuria had implica ted accused Bapdhan

7. PW2, Sri Priya Nath Kalita, is the Gaonbura(village headman). According to this witness, at around 8.30 PM on the day of occurrence, he was called in by Neola Ali, the father-in-law of the victim to say that the victim had set herse lf afire. Immediately thereafter, PW2 rushed to accused persons’ house and found the victim struggling in the courtyard with burn injury on her whole body and o n being asked, she said (cid:28)I have been killed (cid:29). On being asked the second time, sh e could not speak anything more. The witness further deposed that the victim was taken to Nalbari Civil Hospital in a pushcart for treatment, where she succumbe d to her burnt injuries. PW2 had categorically stated that the victim did not na me any one for killing her, before him at that time.

8. PW3, Sri Naren Basumatary, deposed that when he was on the way to Sambar Ali’s house on account of the latter’s marriage ceremony, he had heard a commot ion at Nuria’s house and on being requested by the complainant, he accompanied P W1 to the residence of Nuria at around 7.30/8 O’clock in the evening and saw the fire engulfing her body. P.W.3 laid Nuria on some banana leaves and offered a g lass of water and then left the place. According to this witness, thereafter, h e heard that Nuria had been admitted in a hospital, where she succumbed to her burn injuries. In his cross examination, PW3 stated that on his asking Nuria did not say anything to him. According to PW3, Nuria was only shouting for help to save her.

9. PW4, Md Abul Hussain is one of the relatives of the victim. The victim w as his sister-in-law. According to this witness, 31st May, 2011 was the day of t he marriage of his son Santar Ali, where, among others, Raushan Ali and his wife Nuria were also invited and they had also attended the ceremony and took refres hment. The witness further deposed that in the evening hours of the marriage cer emony, suddenly, Raushan slapped his wife Nuria on her face , as a result of wh ich her mouth was bleeding. After that, the accused Raushan tried to drag away N uria. Nuria asked PW4, (cid:28)Jetha, should I go? PW4 assured her to go and told her t hat the issue would be settled and nothing adverse would happen (cid:29). After that the accused Raushan took away Nuria from the marriage ceremony. According to PW4, at around 7.30/8 PM, on hearing the screaming of Nuria 10. , he rushed to Nuria’s house and on being asked about her plight, he was told by Nuria (cid:28)I have been burnt to death’. PW4 sent PW3 to enquire into the matter. Af ter PW3 had left, PW4 also rushed to Nuria’ house and found her on fire. Neola, one of the accused in the trial court was brandishing dao and cudgel and shoutin g (cid:28)come, who can save her (cid:29). The witness further deposed that Nuria’s entire body together with her wearing apparels was burnt. She was taken in a pushcart to Na lbari civil hospital and there she succumbed to her injuries.

10. PW5, Md Habel Khan, stated that he had been at Abdul’s house on the day of occurrence and around 7.30 PM, on hearing a commotion from the side of Bapdha n’s house, he rushed there and saw a naked woman standing on the flame of fire a nd immediately he covered her body with a blanket and laid her on banana leaves and applied on her body potato skin’s juice with the help of some villagers. Acc ording to the witness, thereafter, he heard that the woman had been carted in to a hospital, where she succumbed to her burnt injuries.

11. PW6, Smti Minoti Begum is a neighbour. According to the witness, when sh e was cooking rice at her home, she heard a commotion at the house of the accuse d and on hearing a screaming ~ (cid:28)I have been burnt (cid:29) ~ she rushed to the house of Nuria and found her lying on banana leaves and villagers were swarming around he r. According to this witness, the accused took the victim to Nalbari civil hospi tal, where she succumbed to her injuries. Though this witness was later declared hostile by the prosecution and accordingly cross-examined, but the aforesaid de position was not under challenge.

12. PW7, Dr(Ms) S. Bora, who performed a post-mortem on the dead body of the deceased Nuria, found the following injuries: (cid:28)External App: - A female body of fair complex, aged about 19 years pres ented with long hair. Rigor mortis absent. The body presented with following bur n injuries- )1) Both arms presented with superficial burn injuries with blisters . (2) Superficial burn injuries with a circular boarder at the level o f umbilicus, unburn areas are (a) left cough (b) right foot above the ankle join t. Areas are red in colour. (3) Superficial burn injuries with numerous blisters present on epig astrium and half of both hypochondriums. (4) Two burn areas with superficial in nature are seen on right chee k about 1 (cid:29)x1 (cid:29) inches in size. All the burn injuries are involved the skin and fascia. On examination o f ligature on neck dissection etc: No other injuries are seen. On examination of abdomen - walls; skin and fascia are burn as in col.I. Peritorinoum - Healthy. Stomach and its healthy contains semisolid matters. Sma ll and large intestine contains -Healthy contains foacal matters. Other external organs are Healthy. More detailed injuries :- As described in col.i, III & IV. The area of b urn is about 40% (cid:29) In the opinion of the medical officer, the death was due to loss of fluid and sh ock following major burn.

13. PW8, Md Atar Ali, deposed that on the day of occurrence, around 8/8.30 P M, when he was supervising the servers serving foods to the invitees present at the marriage hall, he heard that Nuria had got burnt injuries and died later on.

14. PW9, Smti Bilehi Khatoon, deposed that on the day of occurrence, on hear ing a commotion, she went to Nuria’s house and found her body lying on the cou rtyard.

15. Sri Ratan Bhuyan(PW10), the investigating officer of the case, deposed t hat he visited the place of occurrence; offered a glass of water to Nuria, as sh e wanted to quench her thirst; recorded statements of the complainant and the ga onburah, drew a sketch map; forwarded the accused Raushan Ali and Neola to Barpe ta thana; and recorded statements of the witnesses. According to the witness, in quest and post-mortem examination were performed at Nalbari Civil Hospital. The witness had deposed that in his presence when the gaoburah asked Nuria who pushe d her on the brink of death, Nuria told them that her husband Raushan Ali; the f ather-in-law, Neola; her deor(husband’s brother) Bapdhan Ali; the mother-in-law, Ashia Khatun: and her husband’s sister, Nao Begum did it. In his cross-examinat ion, PW10 deposed that PW1 did not state before him during investigation that th e victim Nuria had told him that the accused Bapdhan had set her on fire.

16. In the evidence of PW1, we find that a specific imputation of direct inv olvement of accused Bapdhan in setting fire on the victim has been made, but the statement of PW1 is not corroborated by any other independent witnesses, who we re present at the place of occurrence. As stated by P.W.1 the oral dying declara tion of the deceased, naming Bapdhan, was not heard by any other witnesses, who were present at the relevant time. However, we hasten to say that the prosecutio n witnesses corroborated to assert and prove that the victim Nuria after sustain ing burn injuries uttered by saying (cid:28)I have been burnt (cid:29), . Though the fact of the accused Bapdhan fleeing away on being chased by PW1 has been stated by PW1, but mere fact of fleeing away on being chased by another person, when such an in cident had taken place at his residence, cannot ipso facto implicate him, unless other incriminating circumstantial evidence is available against him. The fact of fleeing away from one place upon being chased from behind by someone in a rag e cannot be branded as abscondance .

17. This Court in 2008(5) GLR 706 in Tapan Debbarma vs. State of Tripura, by referring to the decision of the Hon’ble Supreme Court in Matru vs. State of UP , AIR 1971 SC 1050, observed that merely absconding by itself does not necessari ly lead to a firm conclusion of guilty mind. Even an innocent man may fill panic ky and try to evade arrest, when he is wrongly suspected of a grave crime. And r ightly so, such is the instinct of self-preservation.

18. Sois the case with accused Bapdhan , in the the above circumstances ru nning away on being chased cannot be a determining factor to implicate him for t he commission of offence alleged. Therefore in the circumstances , learned trial Court was not correct in finding the accused Bapdhan guilty of the offence alle ged.

19. From the evidence of PW1 and PW4, however,it clearly transpired that on the date of the incident, there was a quarrel between the accused Raushan and vi ctim Nuria in the marriage party. The accused Raushan slapped Nuria and dragged her to his residence. Immediate thereafter the prosecution witnesses stated that they have heard a hue and cry at the residence of the victim Nuria. PW1 and oth er witnesses immediately reached the place of occurrence, where they found Nuria burning in flames. The fact of quarrel between the accused Raushan and Nuria in the marriage party and slapping on Nuria by the accused Raushan and thus causin g bleeding injury on her person and thereafter accused Raushan dragging victim Nuria to his residence has been proved by the prosecution witnesses. The aforesa id fact is also not disputed in the cross-examination of the witnesses by the de fence counsel. The fact of Nuria sustaining severe burn injury which resulted in her death is corroborated by the medical evidence. Therefore, in the instant ca se, the theory (cid:28)last-seen-together (cid:29) is a relevant factor requiring consideration by the Court, as the deceased was escorted by the accused Raushan to his reside nce and immediately thereafter, within a short while, the deceased was found to have sustained burn injuries , which caused her death soon thereafter. The afore said circumstance raise an accusing finger at accused Raushan.

20. At the time of cexamination of the accused Raushan under section 313 Cr. P.C. , when it was specifically put to him the circumstances under which Nuria h ad sustained the burn injury immediately after having been taken by him to his h ouse, the accused Raushan chose to remain silent by denying the fact.

21. When it is proved to the satisfaction of the court that Victim Nuria was escorted and taken by the accused Roushan Ali to his residence , the accused a lone knew what happened to the Nuria until she was in his company. She was set o n fire within a short while after being taken by accused Roushan, the permitted reasoning process would enable the court to draw the presumption that the accuse d had set her on fire to kill her. Such inference can be drawn if accused would tell the court what else happened to Nuria at least until she was in his custody .

22. The last-seen theory, furthermore, comes into play since the ti me gap between the point of time when the accused and the deceased were last see n alive and the deceased Nuria was found dead is so small that possibility of a ny person other than the accused Roushan being the author of the crime becomes impossible. 23. In the present case the prosecution witnesses corroborated the fact that victim Nuria declared, immediately after the incident, before being ta ken to the hospital and before her death that he has been killed. Nevertheless, the aforesaid oral dying declaration of Nuria may not have named anybody; from h er last words it’s clear that she did not commit suicide, The circumstances of the last seen together is a very relevant cir 24. cumstance and in the case of State of Maharashtra Vs. Suresh, 2000 (1) SCC 471, the Supreme Court measured the following circumstances to be sufficient for main taining the order of conviction: (1) deceased was last seen in the company of th e accused; (2) accused making contradictory statements as to the whereabouts of the deceased; (3) recovery of the dead body.

25. In the case of Bodh Raj alias Bodha and Ors. Vs. State of Jammu and Kashmir, AIR 2002 SC 3164, the Supreme Court observed that the last seen theory comes into play where the time gap between the point of time when the accused an d deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible.

26. In Mohibur rahman Vs. State of Assam, 2002 (6) SCC 277 the Ape x Court held as follows: \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. Ther e may be cases where, on account of close proximity of place and time between th e event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion tha t either the accused should explain how and in what circumstances the victim suf fered the death or should own the liability for the homicide. \

27. In Sahadevan alias Sagadeval vs State, (2003) 1 SCC 534, th e Apex Court has held that that in a case of last-seen-together, it is obligator y on the part of the appellant to explain as to when and where he parted the com pany of the deceased. In the present case accused Roushan did not come forward t o explain, any thing, what so ever , if ever he parted with the company of the d eceased after she was forcibly brought by him from the marriage hall. In the abs ence of explanation to that effect it shall be presumed that the accused Roushan owned the liability for the homicide. 28. The circumstantial evidence coupled with the evidence relating to the deceased being seen in the company of accused Raushan Ali, while taking her to his residence from the marriage party, spell out that the prosecu tion could establish, chain of evidence so complete as not to leave any reasona ble ground, for the conclusion inconsistent with the guilt of the accused . T he facts established by the prosecution are consistent with the hypothesis of the guilt of the accused Raushan. 29 . From above analyses of the evidence on record and taking into account all the circumstances cumulatively, we find a chain so complete that th ere is no escape from the conclusion that, within all human probability, the cri me was committed by the accused Raushan, and none else. However, the prosecution has failed to prove the charge against the accused Bapdhan Ali beyond all reaso nable doubt.

30. In view of above, the appeal stands partly allowed. Accuse d Bapdhan is acquitted of charges under section 302 IPC and he is directed to be set at liberty forth, if he is not required in any other case. However, insof ar as Accsued Roushan is concerned we confirm the impugned judgment dated 13th M ay, 2009 passed by the Additional Sessions Judge, (FTC), Barpeta, in Sessions Case No.20/2006 . Send back the LCR immediately.