High Court
Case Details
Crl.A. 2/2013 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA HON’BLE MR. JUSTICE P.K. SAIKIA JUDGMENT AND ORDER (Anima Hazarika, J) Heard Mr. K Bhattacharjee, learned counsel appearing for the appellant. Also heard Mr. KA Mazumdar, learned Addl. Public Prosecutor, Assam appearing for the State respondent. 2. This appeal is directed against the judgment and order dated 10.10.2012 passed by the learned Sessions Judge, Sivasagar in Sessions Case No.77(S-S)/2005 convicting the accused appellant under Section 302 IPC and sentencing him to un dergo imprisonment for life and to pay a fine of Rs.5,000/-, in default, to suff er rigorous imprisonment for six months more. 3. The facts briefly stated are that, an FIR was lodged with the Officer-i n-Charge of the Sivasagar police station on 13.12.2001 by one Smti. Juri Duara, Secretary, on behalf of Lakhimi Mahila Samiti and Smti. Bijoya Gogoi, contending inter alia that on 7.12.2001, Friday, at around 10-30 PM hearing hue and cry at the house of Tikendrajit Mohan (the accused appellant herein) son of Sri Purnak anta Mohan, resident of Banmukh, Gohaingaon, the neighbours went there in a run and witnessed Smti. Monika Mohan, wife of the accused appellant, burning in fron t of her husband in an absolutely naked state. Later on, the victim was taken to Joysagar Hospital and after she was administered the first aid she was shifted to Assam Medical College and Hospital, Dibrugarh. In the meanwhile, she died. Ho wever, the public suspected that the death was a consequence of husband’s tortur e. Upon receipt of the FIR so lodged, police registered a case being Sivasagar P olice Station Case No.369/2001 under Section 498 A IPC and started investigation . After completion of investigation police submitted charge sheet under Section 304 (B) IPC. The offence being exclusively triable by the court of sessions, the same was committed to the learned Sessions Judge, Sivasagar by the learned SDJM , Sivasagar. Learned Sessions Judge, Sivasagar on the materials available, frame d charge under Section 304 B IPC. The charge so framed being read over and expla ined to the accused, he pleaded not guilty and claimed to be tried. 4. The prosecution examined as many as 13 witnesses in support of its case. After closure of the prosecution evidence, the learned trial Court recorded the statements of the accused under Section 313 CrPC. Defence also adduced two evid ence namely, Jogamaya Mohan (DW 1) and Khanindra Mohan (DW 2). Defence plea was of complete denial.
Facts
In the case in hand, earlier, the court framed charge under Section 304- 5. B IPC. However, later on, during trial, learned court further framed charge unde r Section 302 IPC against the accused. The learned trial Court found that prosec ution has failed to prove the charge under Section 304-B IPC and as such the acc used was acquitted of the charge under Section 304-B IPC. On the other hand, con sidering the evidence on record found that prosecution has been able to prove th e charge under Section 302 IPC beyond all reasonable doubt and thus convicted hi m under Section 302 IPC and sentenced as aforesaid. Hence the instant appeal. 6. ;- The moot question, which falls for determination in this appeal, is thus Whether the finding of guilt arrived at by the learned trial Court is justified on the basis of the evidence on record and the law relevant thereto?
Legal Reasoning
nd (5) there must be a chain of evidence so complete as not to leave any reasonable 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 accused (cid:29). Reference may be made to a decision of this Court in C. Chenga Reddy vs. State of A.P. reported in (1996) 10 SCC 193 wherein at para 21 it has been obse 13. rved as thus :- (cid:28)21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully p roved and such circumstances must be conclusive in nature. Moreover, all the cir cumstances should be complete and there should be no gap left in the chain of ev idence. Further, the proved circumstances must be consistent only with the hypot hesis of the guilt of the accused and totally inconsistent with his innocence (cid:29). 14. To found conviction of the accused on the basis of circumstantial eviden ce, the settled position of law is that every link in the chain of circumstances pointing towards the guilt of the accused must be clearly established and the c hain of circumstances so established shall not only be consistent with the guilt of the accused but that it shall also be inconsistent with his innocence. There is yet another rider attached to the basing of conviction on circumstantial evi dence. The rider being that every reasonable hypothesis of the innocence of the accused must be excluded before the conviction is founded on such circumstantial evidence. Bearing the above principles in mind let us scan the evidence of the pro 15. secution as well as defence witnesses and examine carefully the circumstances ap pearing in this case against the appellant. PW 1, Smti Juri Duara is a hearsay witness. She has stated that the peop 16. le suspected that the accused killed his wife by setting fire on her. The accuse d person’s house is about 3-4 houses apart from her house. At the time of the oc currence, at 10-30 PM they were sleeping after having their dinner. Having heard the terrible commotion towards the house of the accused they woke up and she as ked her husband to go there and enquired about the matter. Going there he found the deceased burnt by fire. Other persons assembled there. Her husband Bipin Dua ra saw the accused shouting that his wife caught fire and wife of the accused wi th burn injuries lying naked near the tube well. The accused was loitering near the courtyard without reacting to the situation. Since it was night she did not go herself towards the place of occurrence. Later, younger brother of the accuse d took the injured to Joysagar Hospital wherefrom she was sent to Dibrugarh Medi cal and she died there. The victim was pregnant at the time of the incident and her elder child was 5 years old. PW 1 is the Secretary of the Lakhimi Mahila Samiti of their village. Sin ce nobody had taken any steps against the accused she made a thorough enquiry in to the matter and lodged an FIR and hence, there was delay in lodging the FIR. P W 1 has further stated that even though the village Headman learned about the in cident he did not inform the matter to the police. Smti. Bijoya Gogoi of their S amiti, who is also a witness of the incident wrote the ejahar. During investigat ion, police recorded her statement. In the cross-examination, she has stated that she had not seen the occur rence herself, she has only described the incident as heard from her husband. Sh e also did not visit the place of occurrence herself. She does not particularly know about the conjugal life of the accused and the deceased prior to the incide nt. She has further stated that she would have learned if there was anything ser ious. There is no electricity connection to the accused person’s house. They use d lamp as well as open lamp. The suggestions put to her that they have lodged th e FIR against the accused conspiringly and that their marriage took place about 8-9 years before the incident have been denied. 17. PW 2, Smti. Bijoya Gogoi has stated that she knows both the accused and his wife as they are co-villagers and neighbours. The accused person’s house is adjacent to that of theirs. At the time of incident, she was sleeping but woke u p hearing terrible outcry of woman, towards the house of the accused. The deceas ed was shouting repeatedly (cid:28)I am dying (cid:29) (cid:28)I am dying (cid:29). Hearing noise, her cousin Cheniram Gogoi, nephew of Lakhikanta came in a run and reached at the place of o ccurrence. Upon reaching the accused person’s courtyard they found him wearing a pair of shorts and vest. They found the deceased burnt and lying naked near the tube well begging for water. She kept on shouting (cid:28)accused has killed me, (cid:29) (cid:28)Tik endra has burnt me (cid:29). Her skin and hair were burnt totally. Although the accused was standing in the courtyard they did notice him not reacting even though he ha d witnessed such a serious incident. Immediately, the village Headman was inform ed. He came to the place of occurrence and witnessed the incident. Being unable to bear the burn of burning injury the deceased grew restless and crept from nea r the tube well to the pond and fell into the water, the village Headman recover ed the injured. Even then she kept on shouting (cid:28)Muk marile, (cid:29) (cid:28)Muk khai dile, (cid:29) di recting at the accused, i.e. her husband. In the meantime, the accused person’s younger brother Khanindrajit Mohan came and took the injured to his house. Some plantain leaves were cut and injured was laid thereon. Thereafter she was taken to Joysagar Hospital in an autorickshaw and from there she was taken to Dibrugar h Medical College and Hospital. Thereafter, she died at the Dibrugarh Medical Co llege itself. They saw the occurrence in the light of lamp and open lamp taken b y the public. Some of them even brought torchlight. At the time of the incident, the deceased was pregnant and their daughter was four years old. The incident t ook place within seven years of their marriage. She does not know about the rela tionship between the accused and the deceased. Prior to the incident she did no t witness anybody from Monika’s maternal home having visiting terms with accused person’s family. Since the village Headman did not work out any solution, they, on behalf of Mahila Samiti lodged the complaint with the police station. Ext 1 is the ejahar and Ext 1(1), 1(2) and 1(3) are her signatures. After lodging the ejahar police visited the place of occurrence and had recovered some half burnt hair of woman and empty jerrycan of kerosene with the capacity of five litres, t wo pieces of half burnt clothes, Mekhela Sadar etc. from the bedroom of the acc used. She is also a seizure witness, Ext 2 is the seizure list and Ext 2(1) is h er signature. Material Ext 1, 2 and 3 are the half burnt hair, jerrycane, burnt mekhela sadar respectively. The Magistrate recorded her statement under Section 164 CrPC also. Ext 3 is the statement and Ext 3 (1), 3(2) are her signatures. During cross-examination, PW 2 has stated that courtyard of Khanindra’s house is separate. The kitchen set of the accused is adjacent to the bed room. T he accused dealt in tea leaves. The injured was taken to the hospital about half an hour after the incident. The accused also accompanied Khanindra while his wi fe (the deceased) was taken to hospital. After the incident she saw the accused loitering in the courtyard. He was silent. Going to the place of occurrence she met the accused person’s younger brother and his wife. However, she has denied t he suggestions put to her that while giving statements before the police she did not state in the manner she has stated while deposing in the court. Other sugge stions put to her have been denied. 18. PW 3, Smti Nirada Gogoi, who is the President of the Mahila Samiti is al so a hearsay witness. She has stated that Bijoya Gogoi told her that on the prev ious night, prior to the occurrence the accused person’s wife had been shouting (cid:28)bachao (cid:29) (cid:28)save me (cid:29). She has further stated that she could not say how the incide nt took place. The incident took place in the night of 7.12.2001 but they lodged the FIR on 13.12.2001 as they had to hold a meeting of the Mahila Samiti to tak e a decision and thereby there was delay in lodging the complaint. They strongly suspected the accused. She has further stated that during investigation, police recorded her statements. After the incident, the accused fled away leaving his house and landed property. Now the landed property of that place has been sold o ut. In the cross-examination, she has stated that the accused had come to th e house along with his wife where the incident took place, few days before the i ncident. It was their ancestral property. Earlier their father had worked in the garden and the accused with others had lived with their father at the tea garde n. She has no direct knowledge regarding the incident. She has stated that they have added accused person’s name in the FIR on suspicion and that she has depose d in the court as told to her by Smti. Bijaya Gogoi. 19. PWs 4 and 5 also deposed in the same tune as that of PWs 1, 2 and 3. PW 4 is the cousin of PW 2, Bijaya Gogoi. He has stated that he is not aware as to whether the accused had any involvement in the death of his wife. They only susp ected him. After the occurrence the accused left his homestead and left for some where else. In the cross-examination, he has stated that he is not aware about the r elationship of the accused and his wife, as the wife of the accused (the decease d) had never made any complaint with him against her husband (the accused). Abo ut a year before the incident, the accused along with his wife had come to the s aid house. 20. On the same line, PW 5 has stated that the accused might have disagreeme nt with his wife but they have not heard any quarrel taking place between the ac cused and the deceased. Earlier the accused lived in the tea garden with his wif e. A year before the occurrence they had come to their old homestead and started living there by erecting a house. As the injured shouted (cid:28)I am being burnt (cid:29) the y suspected the accused had set fire to his wife by pouring kerosene on her. During cross-examination, PW 5 has stated that he has not seen how the i ncident of fire occurred. When the injured was taken to the hospital the accused also accompanied her along with his younger brother. He has never seen the accu sed taking liquor. PW 6 also deposed in the same tune as that of PW 4. He saw a quilt burni 21. ng inside the bedroom of the accused. Even the clothes of the bed room were burn ing. However, during cross-examination, he has stated that before the incident, they have not heard any commotion in the house of the accused. He has further de posed that brother of the accused Khanindrajit was among the people who assemble d in the court yard of the accused. Later on, the accused came back from the cou rtyard. PW 7 is the brother of the deceased. He has stated that when the decease 22. d visited her parent’s house she reported about the fact of physical and mental torture done to her by the accused and his family. She also told that the accuse d demanded money from her. On the date of occurrence, he was informed over phone by his younger brother that Monika had got burnt in gas fire and was undergoing treatment in a Nursing Home and thereafter shifted to Assam Medical College. Wh en he came to his sister’s house of Banmukh, some neighbours told him that in th e noon on that day the family members of Monika assaulted her and they heard com motion. So, after the incident Mahila Samiti lodged the complaint. During cross-examination, he has stated that he had never visited the ho use of the accused at Banmukh where the occurrence took place. At the time of th e occurrence the accused was not doing any service or he had any means of liveli hood. PW 7 worked in the Digboi Refinery. They helped the accused by offering mo ney every now and then. The deceased had told him about her grief and family pro blems. Along with Monika, the accused, too had visited their house. 23. PW 8 is a seizure witness. He is not any eye witness and he came to know about the occurrence from the villagers. During cross-examination, he has state d the accused dealt in tea leaves. Since other people and PW 8 used to buy tea l eaves from him he had terms with him. He had never seen any quarrel taking place between the accused and the deceased. 24. PW 9, Smti. Swapna Dutta Deka has stated that on 10.12.2001, she, as an Executive Magistrate conducted the inquest on the dead body of the deceased in p resence of the witnesses, namely, Tikendrajit (accused) and Dwijen Bora. Ext 4 i s the inquest report. Ext 4(1) is her signature. Defence declined to cross-exami ne this witness. 25. PW 10 is the doctor who held autopsy on the dead body of the deceased an d found burn injuries on the body involving the whole body except the cranium an d upper back. There was no infection and total percentage of body surface area i nvolved is 90%-95% approximately. In the opinion of the doctor, the cause of death was due to shock as a r esult of ante mortem flame burn injury. PW 10 has stated that except the burn in jury, there was no other injury. Smell of kerosene was not present. 26. PW 11 Nitul is a seizure witness to the seizure list Ext 2. Ext.2(4) is his signature. However, police did not show him any article. He was only asked t o put his signature in the seizure list. PW 12 Smti. Lahati Bora is the mother of the deceased. She has stated th 27. at Mahila Samiti informed her about the death of her daughter. The members of th e Mahila Samiti informed Dwijen and others that Monika was put to death by pouri ng kerosene oil on her person by her husband, i.e. the accused. She has further stated that the deceased visited their house frequently. During last visit she c omplained of physical torture, demand of money perpetrated by her husband. Inspi te of the physical torture, the deceased lived with her husband till her death. After her death, she was cremated by the family of the accused. During cross-examination, she has stated that the accused did not demand money from them. The accused was an unemployed and as such the deceased’s elder brother assisted him by paying for CI sheets for their house and also by paying money for maintenance of their family but she had never visited the house of he r daughter and the accused. She has further stated that she does not know how he r daughter caught fire. 28. PW 13 was in-charge of Sivasagar police Station on 13.12.2001. On that d ay, after receipt of the written ejahar from Smti. Juri Duara, Secretary of the Mahila Samiti, a case being Sivasagar Police Station Case No.396/2001 was regist ered. The investigation of the case was entrusted to S.I., Mukul Bhattacharjee. However, he died in the meantime. Upon completion of the investigation, Mukul Bh attacharjee submitted the charge sheet vide Ext 6. PW 13 was familiar with Mukul Bhattacharjee’s handwriting as well as the signatures and accordingly, he verif ied the signature of Mukul Bhattacharjee. During cross-examination, he has stated that no FIR was lodged by the re latives of the deceased but they have adduced evidence. Smti. Jogamaya Mohan, DW 1 who is the sister-in-law of the accused, has 29. stated that on the day of occurrence, at 9-00/9-30PM, she heard hue and cry of M onika as (cid:28)marilu (cid:29) (cid:28)marilu (cid:29), (cid:28)I am dying (cid:29), (cid:28)I am dying, (cid:29). Her house is situated n ear the house of the accused. The accused also screamed. Having heard the scream , she came out of her house and reached the courtyard of the house of the accuse d and saw Monika on fire. She also saw her brother-in-law Tikendrajit trying to douse the fire. A little after that villagers turned up. The deceased’s whole bo dy was burnt. After dousing the fire, her husband went to bring an autorickshaw so that she could be taken to the hospital. At that time, she took Monika to her place. Then the deceased told her that when she had been frying fish, kerosene from open lamp had fallen on the stove and she got fired. In the state of burnin g, Monika went to the tube well near the courtyard and sat under that. In the me an time, the villagers reached there. Later on Monika was taken to the Nursing H ome in an autorickshaw. She has further stated that at the time of the occurrenc e, Monika and her husband (accused) possessed good relationship. Police interrog ated her regarding the occurrence. In the cross-examination, DW 1 has stated that when asked, Monika stated that the fire had broken out when kerosene oil from open lamp fallen on the bur ner of the gas stove. However, she has not seen the incident of her own. She has not seen as to what had happened at the accused’s house at the beginning. 30. DW 2, Khanindrajit stated that on the day of occurrence at 9-00/9-30 PM, he heard a commotion as his brother Tikendrajit called him by shouting. Going t here he saw his sister-in-law, i.e. the deceased was being burnt and she was sit ting under the tube well near the courtyard. When asked, she told him that she g ot burnt while frying fish in the stove of gas cylinder. While sitting under the tube well he had not seen any wearing on her person as all the wearing had been burnt. He brought her to his house by wrapping with clothes. Thereafter, he too k her to the hospital by bringing an autorickshaw. His elder brother, i.e. the a ccused also accompanied him. On 9.12.2001, Monika died at Dibrugarh Medical Coll ege and Hospital. The villagers turned up within ten minutes of the occurrence. Going there he found the accused wearing a gamocha. During cross-examination, he has deposed in the same tune as that of DW 1. The suggestions put to him that he has deposed for the sake of his elder brot her has been denied. 31. In the statement made under Section 313 CrPC, the accused denied the al legation made against him and stated that he did not set Monika on fire. His wif e told him that when she had been burning the stove, kerosene fallen on her and she got burnt. However, he did not see that. 32. On the basis of the evidence on record, mainly relying upon the evidence of PWs 2, 4, 5 and 6, the learned trial Court convicted the accused on the foll owing circumstances;- i) the occurrence took place on 7.12.2001 at about 10-30 PM in the house of the accused. At that time, the deceased wife was at her husband’s house. Hearin g hue and cry from the house of the accused PWs 2, 4, 5 and 6, neighbour of the accused immediately reached the place of occurrence, PW 6, Lakhinath reached the place of occurrence and saw the accused Tike ii) ndrajit standing in the gateway of his house in normal condition. At that time, quilt and clothes of the room of the accused were burning which PW 6 extinguishe d by spraying water. PW 2, Smti. Bijaya Gogoi, who also came immediately, found the accused in his courtyard and his wife was with naked condition asking for wa ter. She was lying in the side of the tube well. PW 4, Cheniram Gogoi also found the accused in the gateway of his house in standing position. On enquiry he did not give any response. PWs 2, 4, 5 and 6 found the wife of the accused with burn injuries on he iii) r person in front of tube well of her house. She was in restless condition and w as naked at that time. She jumped into the nearby pond to save herself but she w as rescued from the pond and taken to the hospital. At that time she was telling to the witness that fire was set on her person by her husband, i.e. the accused (i) The medical evidence corroborated the fact that the death of the decease . iv) d was due to shock as a result of ante mortem flame burn injuries 90%-95%. 33. On a close scrutiny of evidence of PWs 2, 4, 5 and 6 on the one hand and PWs 1, 3, 7 and 12 on the other hand, what becomes glaring in the eyes is that; according to the evidence of PW 1, who is a hearsay witness, she was not aware about the conjugal life of the accused and the deceased before the incide nt, the deceased did not tell her anything, however, she would have learnt if th ere was anything serious. There is no electricity connection to the accused pers on’s house. They used lamp as well as open lamps. When her husband went to the h ouse of the accused after hearing commotion, he found the accused shouting that his wife was caught by fire. However, they suspected that the accused killed his wife by setting fire to her. She has further stated that the houses of Tilak Mo han, Saitendra Chetia, Padma Mohan and Amulya Mohan are situated in between the houses of the accused and theirs. But very surprisingly, the nearby neighbours w ere not examined by police nor they were made witnesses by prosecution. (ii) PW 3 is the President of Mahila Samiti. She is a hearsay witness . She came to know about the incident on the following day, though she is a co-v illager of the accused. She stated that PW 2, Bijoya Gogoi told her that when sh e went to the house of the accused on the previous night, she heard accused pers ons wife had been shouting (cid:28)bachao, bachao (cid:29) (save me, save me), (cid:29). PW 3 has furth er stated that though she had no direct knowledge about the incident, she had ad ded the name of the accused in the FIR on suspicion and that whatever she heard from PW 2, she has stated in the court. (iii) PW 7, though own brother of the deceased, has stated that he had never visited the house of his sister at Banmukh. However, the accused and dece ased used to visit them. The PW 7 neither lodged any complaint before police nor he had suspected the accused to have killed his wife, Monika, by setting fire o n her. (iv) PW 12, mother of the deceased has stated that the Mahila Samiti informed her about the death of Monika. They informed PW 7 and others that Monik a was killed by her husband pouring kerosene oil and setting fire to her. Despit e the above information received by them, the family members of Monika did not l odge any FIR/complaint before the police. PW 12 has further stated that the accu sed did not demand money from them. As he was an unemployed, the family members of Monika paid for CI sheets for their house and also money for maintenance. (v) PW 2 after hearing hue and cry from the house of the accused per son, went there and saw the accused person standing in the courtyard indifferent ly, he was silent and the deceased was shouting, (cid:28)Mok khai dile, Mok khai dile, (cid:29) (I am ruined, I am ruined), directing the accused. The village headman on being informed came there but did not work out any solution. So, on behalf of the Mah ila Samiti, after few days, she lodged the FIR. However, she did not know about the relationship of the accused with his wife (the deceased). But in her stateme nt made under Section 164 CrPC she had stated that the accused was all along reb uking the deceased. On some material points, her statement made under Section 16 4 CrPC and the statements made before the court are not same. (vi) PW 4, in the same tune, stated about the incident. He further st ated that he cannot say about the relationship of the deceased with her husband, the accused. But the deceased never made any complaint against her husband. He did not know whether the accused was involved in the incident. However, they sus pected him. (vii) PW 6 has stated that after hearing the commotion in the house of the accused, he went there and saw Monika sitting near the tube well after she had been burnt, crying as (cid:28)I am dying, I am dying, (cid:29). He saw a quilt burning in t he bed room. However, in chief, PW 6 has specifically stated that he cannot say how the deceased caught fire or who set her on fire. 34. If we perused the evidence of DW 1 and DW 2, we find that at 9/9-30 PM o n the date of occurrence they heard cry of Monika as, (cid:28)Morilu, Morilu, (cid:29). The acc used also screamed. Hearing the scream when DW 1 and DW 2 came out they saw Moni ka on fire and the accused trying to douse the fire. Thereafter the accused went to bring an autorickshaw so that Monika could be taken to the hospital. Monika, on being asked, told DW 1 that when she had been frying fish, kerosene from an open lamp had fallen on the stove and fire caught her. In the state of burning, Monika went to the tube well and sat under it. In the meantime, villagers reache d there. Later on, Monika was taken to the hospital in an autorickshaw by the ac cused and her husband DW 2. Both the deceased and the accused had good relation at the time of the incident. Having given a careful consideration to the evidence adduced by prosecut 35. ion as well as defence, along with the evidence of the doctor, it transpires as follows;- i) It will be highly unsafe to place implicit reliance on the evidence of P Ws 2, 4, 5 and 6, basing upon which the impugned judgment of conviction was pass ed, inasmuch as, they have stated that on suspicion, the FIR was lodged implicat ing the accused. They have further stated that they were not aware about the rel ationship between the deceased wife and accused husband. The deceased never comp lained anything against her husband. ii) Knowing fully well about the unnatural death of the deceased, her family members did not lodge any FIR/complaint before police/any authority. Out of PWs 2, 4, 5 and 6, only PW 5 has stated that they suspect the acc iii) Nearby neighbours were not examined either by police under Section 161 C rPC during investigation nor before the Court, who would have been able to say a bout the relationship of the deceased and the accused. iv) used to have set fire to his wife by pouring kerosene on her. v) PW 10, the doctor has specifically stated that except burn injuries ther e was no other injury. Further, smell of kerosene was found to be not present. T he learned trial Court totally ignored the medical evidence while finding the ac cused/appellant guilty under Section 302 IPC basing on circumstantial evidence. vi) The learned trial Court did not at all consider the evidence of DWs 1 an d 2. The court has not said anything as to why their evidence have been discarde d, while placing reliance upon the PWs, including hearsay evidence. 36. In the case at hand, since there is no direct evidence on record showing that it was the accused and none but the accused, who had killed his wife by se tting her on fire, every reasonable possibility of the deceased caught fire when she was frying fish as told by her to DWs 1 and 2, the accused’s hand in killin g his wife must be excluded, more so, the deceased never complained against her husband before PWs 1, 2, 3, 4, 5 and 6, who are co-villagers/neighbours of the d eceased as well as the accused. 37. Because of the fact that there is, if we may repeat, no cogent evidence on record showing that it was the accused only who had killed the deceased by se tting her on fire, that too without any motive, it will be extremely unsafe and hazardous to maintain the conviction of the appellant on such evidence. 38. The prosecution is, thus, required to prove convincingly that the accuse d has killed his wife by pouring kerosene and then setting her on fire. The evid ence adduced in this regard, as has already been observed, inadequate and inconc lusive in nature. The death of the deceased in the present case is undoubtedly a tragic incident. But under our system of justice, no one can be punished unless legal proof is adduced in a court of law to establish that he has committed the offence for which he has been charged. Suspicion, howsoever, strong does not am ount to legal proof. In the absence of legal proof that the appellant had commit ted the offence under Section 302 IPC, this Court has no option but to give the benefit of doubt to the appellant. 39. Under the circumstances, having given a careful consideration to the sub missions made by the learned counsel appearing for the parties and in the light of the evidence discussed above, in the background of the principles laid down b y the Hon’ble Apex Court as highlighted hereinabove, this Court is of the view t hat the prosecution has failed to prove beyond reasonable doubt that the accused committed the murder of deceased Monika Mohan. The appellant is therefore entit
Arguments
We have carefully perused the entire record of the case including the im 7. pugned judgment and order. Also heard the learned counsel appearing for the part ies at length. Utmost importance to note in this case is that the medical evidence, whi 8. ch clearly reveals that Monika Mohan (deceased) had died as a result of the ante mortem flame burn injury. Doctor found no other injury except burn injuries. Sm ell of kerosene was found not present. 9. It is to be noted herein that in the present case in hand, there is no d irect evidence, not to speak of eye witness. The impugned judgment and order was passed on circumstantial evidence. The law governing the circumstantial evidenc e is fairly well established. 10. The Hon’ble Apex Court in a catena of decisions has consistently held th at when a case rests upon circumstantial evidence such evidence must satisfy the following tests: (1) , must be cogently and firmly established; the circumstances from which an inference of guilt is sought to be drawn (2) the circumstances should be of definite tendency unerringly poin ting towards guilt of the accused. (3) the circumstances, taken cumulatively, should form a chain so co mplete that there is no escape from the conclusion that within all human probabi lity the crime was committed by the accused and none else ; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of th e guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. In the case of Hanumant Govind Nargundkar vs. State of M.P. reported in 11. AIR 1952 SC 343, Hon’ble Apex Court observed as thus: (cid:28) 10 & &..It is well to remember that in cases where the evidence is of a circumst antial nature, the circumstances from which the conclusion of guilt is to be dra wn should in the first instance be fully established, and all the facts so estab lished should be consistent only with the hypothesis of the guilt of the accused . Again, the circumstances should be of a conclusive nature and tendency and the y should be such as to exclude every hypothesis but the one proposed to be prove d. In other words, there must be a chain of evidence so far complete as not to l eave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the ac t must have been done by the accused. (cid:29) 12. In the case of Sharad Birdhichand Sarda Vs State of Maharashtra reported in AIR 1984 SC 1622, while dealing with circumstantial evidence, it has been he ld that the onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. It is held at para 152 of Sharad Birdhichand (supra) as thus - (cid:28)152 (1) the circumstances from which the conclusion of guilt is to be drawn sh ould 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 th e guilt of the accused, that is to say, they should not be explainable on any ot her 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, a
Decision
led to the benefit of doubt. 40. In the result and for the reasons stated, the appeal is allowed. The imp ugned judgment and order of conviction and sentence passed against the accused a ppellant is set aside and the appellant is directed to be set at liberty forthwi th unless he is required to be detained in connection with any other case. 41. Send down the lower court records.