Dismissed

James P Dawngliana v. State of Mizoram

Gauhati HC27 Jun 2022Crl.A./4/2018

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed an appeal against a conviction for culpable homicide. The court held that circumstantial evidence forming a complete chain, supported by the appellant's failure to explain the injuries under Section 106 of the Evidence Act, justified the lower court's conviction and sentence.

What did the court decide?

Appeal Crl.A.4/2018 dismissed; judgment and order dated 06.12.2016 upheld.

James P Dawngliana Vs State of Mizoram — Murder and Culpable Homicide | Gauhati HC (2022)

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GAHC030000622018

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.A./4/2018

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James P Dawngliana Thenzawl

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VERSUS

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State of Mizoram Aizawl

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Advocate for the Petitioner : Mr Lalfakawma (Amicus Curiae)

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Advocate for the Respondent : Mr. C Zoramchhana (P.P., Mizoram)

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BEFORE HONOURABLE MRS. JUSTICE MARLI VANKUNG

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JUDGMENT

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Date : 27-06-2022

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1] HeardMr.Lalfakawma, learned Amicus Curiae appearing for the appellant

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and Mr. C. Zoramchhana, learned Public Prosecutor, Mizoram for the respondent.

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2] This is an appeal against the Judgment & Order dated 06.12.2016 passed by the

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Addl. Sessions Judge-II, Aizawl Judicial District, in Crl.Tr.No. 359/2016, convicting the

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appellant under section 304 (Part-I) IPC and sentencing him to undergo R.I 10 (ten)

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years and pay a fine of Rs.2000/-in default to undergo SI for 30(thirty) days vide its order dated 07.12.2016.

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3] The prosecution case in brief is that S.I. Malsawmtluanga submitted enquiry report on 23.10.2015 at around 3:00 Am to the effect on 23.10.2015 at around 00:15 hrs information was received over telephone at Thenzawl Police Station from one Shri J. Lalchhanhima of JNV, Thenzawl to the effect that one Smt. Zonunsangi, w/o J.P. Laldawngliana had been found dead in their rented house. In the course of enquiry, the P.O. was carefully examined and inquest was held over the dead body of the victim Zonunsangi. A firewood measuring 2 feet with long hair stuck on it, suspected to be used for killing her was seized on the spot. The husband of the victim, James P. Laldawngliana was apprehended and interrogated at the Police Station andhis statement was recorded. At the time of interrogation, James P. Laldawngliana admitted his guilt,stating that he had burnt his wife by pouringkerosene on her, and hit her on her head with firewood in their residence. As a result, his wife succumbed to her injury on the spot. Hence, TZL PS Case No. 22 of 2015 dated 23.10.2015 u/s 302 IPC was registered and investigated by S.I. Malsawmtluanga.

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4] During investigation, the appellant James P.Laldawngliana was arrested and his statement was recordedand was forwarded to CJM for judicial remand. The dead body of Zonunsangi was forwarded to CHC, Thenzawl, for post mortem examination. The hair of the deceased was also obtained by the medical officer to compare with the hair

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stuck on firewood. The seized firewood stuck with long hair and the sample of the deceased’s hair was sent to FSL for examination. Three witnesses were examined and their statements were recorded. Later, the PME report was received and the report revealed that the cause of death was due to skull fracture and intracranial bleeding. FSL report was also received and the expert opined that the deceased hair and the hair stuck on firewood could have come from the same source. A prima facie case being found against the accused under Section 302 IPC, the Case I.O. submitted charge-sheet.

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5] Upon committal of the case, the Addl.Sessions Judge framed charge against the accused under Section 302 IPC which was read over and explained to him in the language known to him, to which he pleaded not guilty and claimed to be tried. In course of trial, the prosecution produced and examined as many as 7 out of 8 witnesses. After closure of the prosecution evidence, the accused person was examined under Section 313 of Cr.PC. The accused denied that he had caused injury to his wife which led to her death. As the accused failed to produce witness, his evidence was closed. After hearing both the parties, the learned lower court passed the impugned order dated06.12.2016, convicting the appellant under section 304 (Part-I) IPC and sentencing him to undergo R.I 10 (ten) years and pay a fine of Rs.2000/-in default to undergo SI for 30(thirty) days vide its order dated 07.12.2016. Hence the instant appeal.

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6] Mr.Lalfakawma, learned Amicus Curiae submits that there was a lot of lacuna in the investigation of the case. The FSL report Exhibited as Ext- P3 is not conclusive and the terms used is “could have”which means that it is not conclusive whether the hairs of the victim and the hairs from the fire wood actually belonged to the deceased victim.The case I/O has failed to get the blood stain found in the fire wood examined and no finger print has been examined. There was no DNA test done to prove that the blood stain found belonged to the deceased victim. There is no seizure of kerosene oil and there is nothing to show that she was burnt, all the evidence are found to be circumstantial as noted by the learned trial court. The statement given by the appellant under section 313 Cr.PC is not disputed. It is also seen that PW 3 & 4 had gone to the house of the appellant, wherein they drank liquor together, their marital life appeared normal and happy.The prosecution have failed to prove that the chain of circumstances is complete to prove the guilt of the accused/appellantbeyond any reasonable doubt and that the appellant in this case should be given the benefit of doubt.

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7] Mr. C. Zoramchhana, learned PP for the State on the other hand, submits that DNA was not done since the FSL in the State is not equipped to do DNA profiling. However, all the circumstances at the time of the crime all points to the appellant. There is nothing that points to the innocence of the appellant. PW-4 stated that the victim had mentioned to him that the appellant had burnt her earlier. This point has

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not been crossed during cross-examination. PW 3 & 4 had gone to the house of the

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appellant and when they left the house, they were the last person to see her alive and there is no chance of any person entering the house and committing the crime against the victim. The appellant in his examination under 313 Cr.PC has not made any

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mentioned of any other person entering their jhum hut.As provided under section 106 of the Indian Evidence Act if the death was caused due to any other reason then it is for the appellant to prove as such, the burden of proving the cause of deathis upon the appellant who has not given any such explanation. Even without finger print and blood test the case has been clearly proved against the appellant.The learned Public

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Prosecutor has relied on the Judgment of the Apex Court in Kalu alias

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Laxminarayan vs. State of Madhya Pradesh reported in (2019) 10 SCC 211 para 13-16

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8] Mr.Lalfakawma, learned counsel for the appellant then further submits that the appellant should not be made to suffer due to the short coming and lack of facility in the Forensic Science Laboratory in the State. From the evidence, it is clear that the accused was already quite drunk and he had passed out.

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9] Having heard the submissions made by the learned Amicus curiae and the learned Public Prosecutor, the evidence adduced in the trial court is meticulously examined.

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10] The evidence of Pw 3-Dr.Remlalnghaki who conducted the post mortem examination of the deceased victim Zonunsangi on 23.10.2015 which was exhibited

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as Ext P-3.Her findings were as follows:

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1. There is laceration on left ear approximately 4 x 3 cms.

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1. Hematoma behind right ear approximately 10 x 8 cms.

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1. Hematoma occiput approximately 8 x 10 cms.

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1. Left shoulder bruise approximately 15 x 10 cms.

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1. Left elbow bruise approximately 8 x 10 cms.

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1. Right hand bruise and swelling 7 x 5 cms.

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1. Right knee bruise 8 x 7 cms.

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1. Left thigh bruise 7 x 5 cms.

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1. Cheek left abrasion and hematoma.

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1. Multiple abrasions on forehead.

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1. Scald and burnt marks on abdomen breast left and right sides.

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1. Frank blood inside the skull.

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Fracture temporal bone left side.

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The injuries were caused by use of blunt force. The injuries sustained and inflicted are sufficient to cause dead. In her opinion, the deceased died as a result of the injuries sustained in her body.

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11] During cross examination it has been clarified that the post-mortem

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examination was done at around 10:30 am. The main cause of death of Zonunsangi

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was due to left temporal fracture and blood accumulated inside the skull. The fracture

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could not have been inflicted by use of bare hand. The injuries at serial no 1-5 & 9–13

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are fresh injuries and the injuries at serial no 6 - 8 are old injuries. That she cannot

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saywhether the injuries at serial no 4–11 were caused by blunt object. But, the injuries at serial no 1-3 & 12-13 were caused by blunt force. The burnt marks found on the dead body might be caused after her death.

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12] I thus find that based on the evidence of the doctor(PW-3), and the postmortem report( Ext-P3) it can safely be held that the death of the deceased was homicidal in nature due to the injuries sustained by her. On the facts emerged from the evidence on record, it transpires that the death of the deceased was caused between the time PW 4 &one Zuia left the house of the appellant at around 6:30 p.m. and between midnight on 23.10.2015, the post mortem examination was conducted at around 10:30 am after recovery of the dead body of the deceased.

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13] Pw- 1 Lallianzuala , is the seizure witness to the seized one firewood and one shirt and pant belonging to the victim Zonunsangi from their house on 23.10.2015. During cross examination he admitted that he was not present when the accused allegedly assaulted the alleged victim.

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14] Pw-2- J.Lalchhanhimihas deposed that the deceased Zonunsangi W/o the accused/appellant washerfriend. On 22.10.2015 at midnight, while sleeping, she heard the accused calling her and knocking on the door. When she opened the door she found James P. Laldawngliana standing outside and hetold her that he believed his wife Zonunsangi was dead as her body was very cold. She had then informed their neighbours, and with them they proceeded to the house of the accused. When they entered the house of the accused, they found Zonunsangi was lying on the floor of

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their bedroom. At that time, there was no electricity and one candle was burning, and it was a bit dark and they could not see things clearly. She then checked the body of Zonunsangi she found that she was already dead. She also found injuries on her

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forehead, right knee and her right hand got swollen. When she touched her occipital region it was fractured. She found 1 (one) firewood near the head of the victim. They informed OC Thenzawl PS about the incident.The Police came and after they had observed all the formalities, she changed the clothes of Zonunsangi and found that her abdomen portion was burnt. Ext P-2 is inquest report. Ext P-2 (a) is her signature. During cross examinationshe deposed that the nearest residential building from the house of the accused may be about 20 meters wherein the neighbours were living at the relevant time, but they did not know any sound of quarrelling or fighting from the house of the accused.

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15] Pw No.4 is R. Lalthanglianahas deposed that he knew James P.

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Laldawnglianaand his wife Zonunsangi who were living in the same locality not far from his house. They were living in a rented house; they had no issue out of their wedlock. On the evening of 22.10.2015 at around 5:00 – 6:00 pm he went to the house of James P. Laldawngliana. At the time James P. Laldawngliana was taking liquor and he also shared his liquor. He was already quite drunk. At that time, Zonunsangi, wife of James P. Laldawngliana was in the bedroom and was sitting on the floor beside the bed. The floor of the house was bamboo make. After sometime,

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Mr Zuia also came into the house, she could not get up on the bed by herself and he

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put her on the bed. At that time he felt kerosene smell in the bedroom. Zonunsangi told him that her husband intended to burn her to death. Thereafter at about 6: 30 pm he and Zuia left the house for they had not yet taken food. At about midnight James P. Laldawngliana came to his houseand said that “his wife was in a critical condition and asked us to come to his house and see her”. He asked his neighbour Biakropuii to accompany us. There upon, they went to the house of James P. Laldawngliana together with some other persons invited by his wife to come alone. They entered the house together where they foundZonunsangi lying on the floor. His wife touched her body and tried to feel her pulse and on finding that she was dead she started weeping. He did not touch the body nor examined to see if there were injuries on her body. There and then, his wife telephoned the Police Station, informing them of the incident. While taking liquor together James P. Laldawngliana stated before them that his wife Zonunsangi had mismanaged/hoarded (Chheprelh) their money, Rs. 70,000/ and that he was very unhappy. The couples were not in good term for they used to quarrel every now and then. The cross examination does not rebut or cross the depositionof the witness except the blanket suggestion that he was falsely deposing in the court which was denied.

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16] PW No. 6 SI Malsawmtluangais the case I.Oin the instant case. He has deposed that on 23.10.2015 at around 12:15 AM while on duty at Thenzawl PS, he received information over mobile phone from J. Lalchhanhimi of JNV Thenzawl to the effect that they had found the dead body of her neighbourZonunsangi W/O J.P. Dawngliana

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in their residence. He and his party went to the PO i.e. the house of accused, he

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carefully conducted enquiry. During enquiry, he carefully examined the PO and drew a sketch map of the PO. He found the dead body of Zonunsangi lying on the floor inside their bedroom and conducted inquest. While conducting inquest over her dead body, he found a burnt mark on her abdomen and on her back, he also found injury on her head. From the inquest report, he concluded that the cause of death was due to her head injury.In the bedroom he found one firewood stained with blood and some long hairs stuck on it. He formally seized the firewood and the apparels worn by the deceased in the presence of the witnesses. He apprehended the suspect James P. Laldawngliana and took him to Thenzawl PS. After completing his enquiry, he submitted enquiry report at Thenzawl PS and case was registered under Thenzawl PS Case No. 22/2015 dated 23.10.2015 u/s 302 of IPC and he formally took the case for investigation since he was the OC of Thenzawl PS.

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17] During his investigation, he formally arrested the accused on 23.10.2015 he sent the dead body for post mortem examination (PME) to CHC Thenzawl and also received the PME report. He examined and recorded the statement of the available witnesses. He interrogated the accused who admitted guilt by stating that he had poured kerosene oil on his wife and burnt her inside their residence. After that while

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she was sitting on the bed, he hit on her head with firewood and she fell down on the floor and remained motionless.

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18] In his further investigation, the deceased hair was obtained by Medical Officer

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to compare with hair which was stuck at firewood. He then sent the seized firewood

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stick with long hair and the sample of the deceased hair to FSL, Aizawl for

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examination and he received the examination report. After completing his investigation, he found a prima facie case against the accused u/s 302 of IPC and submitted Charge Sheet accordingly. The chargesheet included all the connected documents including the post mortem report and the FSL report which were exhibited in the trial court.

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19] During cross examinationhis evidence was not discredited but he admitted that onlythe firewood was sent for examination of human hair to FSL. He did not sent blood sample of the victim to FSL to compare with the blood stain at firewood for examination. He did not request the FSL to examine the fingerprint of the accused

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from the seized firewood. There was no box/hard material beside the bed wherein the victim could hit her head.

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20] That there was no eye witness in the instant incident. He did not know whether the accused was under the influence of alcohol at the time of incident. He admitted that if a person falls down on a hard object, she/he can sustain injury on his/her head.

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21] From the evidence adduced I am of the considered view that the fact that the cause of deathof the deceased victim is due to the injuries sustained by her has been established. The main cause of death of Zonunsangias per the PME report,was due to left temporal fracture and blood accumulated inside the skull. The injuries were

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caused by use of blunt force and one firewood stained with blood and with some long hairs stuck on itwas found in the bedroom near the deceased. FSL report confirms that the hair on the fire wood is the hair of the deceased victim. It is not disputed that the appellant being the husband of the deceased was the only person with the victim on the night of the incident. Pw No.4 / R. Lalthangliana and Zuia left their house at around 6:30 pm and before they left the victim, she had mention that the appellant was intending to burn her to death. The post-mortem report found scald and burnt marks on abdomen breast left and right sides. The couple were not in good terms and often quarrel over money as deposed by their friend PW no.4. The appellant on examination under 313 Cr.P.C has not given any explanation as to how his wife could have sustained the injuries found on her body. All he had stated was that he loved his wife and he was not responsible for the cause of death of his wife. He further admitted that he was quite drunk and did not know whether he made an admission of guilt before the police. I find that as per section106 of Indian Evidence Act, the appellant is required to give some reasonable explanation as to how his wife who was with him on 23.10.2015 night could have sustained the injuries found on her body.There is not even a hint from the appellant that the injuries found on the body of the deceased victim could have been caused by some other person or due to some other reason.

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22] This case rest on circumstantial evidence since there is no eye witness. However, I find that the above mentioned circumstances unerringly pointing towards

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the guilt of the appellant. The circumstances as highlighted above, taken cumulatively,

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form a chain so complete that no other conclusion can be made but that the crime

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was committed by the appellant and none else. The fact that no DNA test was taken with regards to the blood found on the fire wood and that the Forensic expert did not emphatically state that the hair found on the fire wood belonged to the deceased victim or that finger print test was not done, does not dilute the evidence that there was no other person possibly involved in the case and that the cause of death of the victim was due to the injury sustained by her due to a blunt weapon which obviously point to the fire wood where blood stains were found, the hair stuck on the fire wood cannot belong to anyone else but the deceased victim.

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The Apex Court in the case of Kalu alias Laxminarayan vs. State of Madhya Pradesh (supra) held that :

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“13. In the circumstances, the onus clearly shifted on the appellant to explain the circumstances and the manner in which the deceased met a homicidal death in the matrimonial home as it was a fact specifically and exclusive to his knowledge. It is not the case of the appellant that there had been an intruder in the house at night. ……………….

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InTulshiramSahaduSuryawanshi and Ors. vs. State of Maharashtra, (2012) 10 SCC 373, this Court observed: “23. It is settled law that presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of

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reasoning and reaches a logical conclusion as the most probable position. The above position is strengthened in view of Section 114of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106of the Evidence Act can also be utilised. We make it clear that this section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. ……………….

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In TrimukhMarotiKirkan vs. State of Maharashtra, 2006 (10) SCC 681, this Court was considering a similar case of homicidal death in the confines of the house. The following observations are considered relevant in the facts of the present case:

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“ If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A

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judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions — quoted with approval by ArijitPasayat, J. in State of Punjab v. Karnail Singh). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind S ection 106of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. ………. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be

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false, it is a strong circumstance which indicates that he is responsible for commission of the crime.”

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In view of our conclusion that the prosecution has clearly established a prima facie case, the precedents cited on behalf of the appellant are not considered relevant in the facts of the present case. Once the prosecution established a prima facie case, the appellant was obliged to furnish some explanation under Section 313, Cr.P.C. with regard to the circumstances under which the deceased met an unnatural death inside the house. His failure to offer any explanation whatsoever therefore leaves no doubt for the conclusion of his being the assailant of the deceased.”

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23] In light of the above findings of the Hon’bleApex Court and the reasons mentioned above, I am constrained to hold that there are no grounds to interfere with the Judgment & Order dated 06.12.2016 passed by the Addl. Sessions Judge-II, Aizawl Judicial District,in Crl.Tr.No. 359/2016, convicting the appellant under section 304 (Part-I) IPC and sentencing him to undergo R.I 10 (ten) years and pay a fine of Rs.2000/-in default to undergo SI for 30(thirty) days vide its order dated 07.12.2016.

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24] Crl. A 4/2018 (J) is thus dismissed and stands disposed of.

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25] In appreciation of the services of the learned AmicusCuriae, he may be paid a fee of Rs.7500/- which shall be borne by the State Legal Services.

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JUDGE

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Comparing Assistant

James P Dawngliana v. State of Mizoram

Case brief

What is this about?

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James P Dawngliana v. State of Mizoram

Case brief

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