Allowed

Raymond Zothanchama v. The State of Mizoram

Gauhati HC27 Jun 2022Crl.A./40/2018

Case brief

AI extract

What is this about?

In this criminal appeal, the appellant contested conviction under Section 304 IPC for his wife's death, claiming an accidental fall. The High Court analyzed circumstantial evidence, post-mortem findings indicating blunt trauma unlikely from a fall, and witness testimony. The Court upheld the lower court's conviction.

What did the court decide?

The appeal was dismissed; conviction and sentence upheld.

Raymond Zothanchama Vs The State of Mizoram — Murder and Culpable Homicide | Gauhati HC (2022)

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Page No.# 1/17

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GAHC030000952018

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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./40/2018

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Raymond Zothanchama Ramthar Veng, Lunglei, Mizoram

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VERSUS

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The State of Mizoram Aizawl, Mizoram

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Advocate for the Petitioner : Mr Aldrin Lallawmzuala (Amicus Curiae)

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Advocate for the Respondent : Mrs. Linda L Fambawl (Addl.PP, Mizoram)

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BEFORE HONOURABLE MRS. JUSTICE MARLI VANKUNG

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JUDGEMENT

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Date : 27-06-2022

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Heard Mr. Aldrin Lallawmzuala, learned Amicus Curiae for the appellant and Mrs.

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Linda L. Fambawl, learned Addl. Public Prosecutor for the respondent.

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2] This is appeal against the Judgment and Order dated 15.11.2018 passed by the

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District and Sessions Judge, Lunglei, Lunglei Judicial District, in convicting the

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appellant under section 304 IPC and sentencing him vide order dated 19.11.2018, to

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undergo R.I 10 years and a fine of Rs. 5000/-i.d S.I for a period of one year. Period of

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detention already under gone by the accused/appellant to be set of.

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3] The Prosecution story in brief is that on 21.10.2017 @ 6:30 am a written complaint was received from R. Lalnunmawia, S/o R. Rozawna of Lunglawn stating that on 20.10.2017 @ 9:00 pm one Lalthanchami, (35) D/o LH.Lalnunmawii of Lunglawn was found dead in the jhum hut belonging to Pu Vanlalzuia at Mel 4 Mual, Lunglawn VC area, and multiple external injuries were found on her body. Hence, Lunglei PS C/No. 180/2017 dt.21.10.2017 u/s 302 IPC was registered. In this regard on 20.10.2017 @ 9:20 pm a telephonic information was also received from HC. Lalrodinga of Hauruang stating that one Lalthanchami, w/o Raymond Zothanchama of Lunglawn had accidentally fallen down from the jhum hut and died at the spot. Formal enquiry was conducted before registering the case on the basis of the above telephonic information. During enquiry, the P.O i.e. Jhum hut belonging to Pu Vanlalzuia of Lunglawn was visited and the P.O was examined carefully. No any accidental mark on the ground which reportedly was the place where the deceased person fell down from the jhum hut was found and the sketch map of the P.O was also drawn. Inquest was conducted over the dead body of deceased Lalthanchami (35), and found multiple injuries on her different parts of the body i.e the inquest reveals that there was suspicious doubt on the death of Lalthanchami against her husband Raymond Zothanchama as he was the only one who stayed with the victim at the time of her death at the P.O. Hence, the suspected person Raymond Zothanchama was apprehended for interrogation as well as for safe custody.

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4] During investigation, the deceased was forwarded to M.O. Civil Hospital, Lunglei on 21.10.2017, for post-mortem examination. The accused was formally arrested and

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he was thoroughly interrogated, during interrogation he admitted his guilt. As per provision of U/S 27 Indian Evidence Act, his disclosure statement was recorded in presence of two reliable independent witnesses. The involved weapon/property i.e Dao and Kurta were recovered and seized on being led and shown by the accused person in presence of the same witnesses who were presented at the time of recording the disclosure statement of the accused. The PME report in respect of deceased Lalthanchami was received from MO, Civil Hospital, Lunglei, which revealed that the cause of death was shock due to hemorrhage from spleenicrupture, most probably due to blunt trauma. Under the above fact and circumstances, a primafacie case u/s 302 IPC was found against the accused Raymond Zothanchama/appellant and charge sheet was submitted accordingly.

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5] Upon committal of the case, the 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 9 witnesses. After closure of the prosecution evidence, the accused person was examined under Section 313 of Cr PC. The accused denied all the incriminating evidence made out against him and stood as the defence witness. After hearing both the parties, the learned lower court passed the impugned order dated order dated 15.11.2018, convicting the

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appellant under section 304 IPC and sentencing him vide order dated 19.11.2018, to undergo R.I 10 years and a fine of Rs. 5000/-i.d S.I for a period of one year. Hence the instant appeal

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6] Mr. Aldrin Lallawmzuala, learned Amicus Curiae submits that the impugned Judgment and Order is liable to be set aside for the following reasons; the disclosure statement alleged to have been made by the appellant is not acceptable since the signature of the witnesses are dated differently, the witness K.Zirsangliana has put his signature on 12.11.2017 while the witness Lalremruata has put his signature dated 12.12.1017. The disclosure statement cannot be taken as extra judicial statement. PW1is the complainant and his observation that, ‘it did not appear as an accidental death’,is not acceptable since he is not an expert to give an opinion in this matter.The same goes for statements of PW 2 & PW3 & PW 4. Pw 2 and PW3 have opined that, on enquiry there was no clue that the deceased victim had fallen from the Jhum hut and PW4’s statement that, there was no signs of any person falling down from the Jhum hut, cannot be accepted since the above PWs are not experts to prove that the dead of the victim was not due to the fall of the victim from the jhum hut. PW-5 is the owner of the jhum hut and the last seen together theory cannot be applied in this case since the prosecution has not proved the time when Pw-5 left the jhum hut. PW-

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6 had also gone to the jhum hut but there is no mentioned as to till what time he had stayed in the jhum hut. It is also noted that while Pw-6 was in the jhum hut, the complainant/accused and the victim did not have any quarrel.

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7] The learned Amicus curiae further submits that PW-7 is the Doctor who conducted the post mortem report, the observation of the Doctor in his crossexamination that it is ‘unlikely’ that the death of the deceased victim was caused due to the fault from the jhum hut is not a conclusive statement. By using the term ‘unlikely’, she is not sure/not clear of the cause of the death of the deceased victim. The statement of PW-8 is what was informed to him by the accused/complainant. PW9 is the case I/O and it is seen that his narration of the disclosure statement is again contradictory for he mentions that he recorded the disclosure statement before visiting the P.O in the presence of the two witnesses. Further the dao alleged to have been used by the appellant is not sent to FSL. The hair seized from the P.O. was also not sent to FSL, finger print was not taken to establishthat the Dao belonged to the appellant.

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8] The learned Amicus Curiae also submits that on examination of the accused under section 313 Cr.P.C, he has denied the prosecution story. The learned Sessions Judge had also altered the charge against the appellant, however, he was not examined on this point. The evidences are all circumstantial evidence and the prosecution has failed to prove the case against the appellant beyond any reasonable doubt.The learned Amicus Curiae has relied on the judgment of the Apex Court in the

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case of Majenderan Langeswaran Versus State (NCT of Delhi) & Another reported in (2013) 7 SCC 192 paras 16,17,18,19, 26 & 28

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9] Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor on the other hand

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submits that the sequence of events on the day of the incident clearly shows that it is

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only the appellant who can be responsible for the death of the deceased victim. PW-5 & PW-6 were present in the jhum hut in the evening and the incident had occurred after dinner when they had left the jhum hut. PW-8 is the first person who met the accused, he deposed that the accused/appellant appeared drunk, PW-4 also stated that the accused was in a drunken state and she was the first person to reach the jhum hut, where the deceased victim. PW-1, PW-2 & PW-3 have all stated that the nature of injuries of unlikely to occur from her. It is for the appellant to explain the injuries when they were last seen together. The learned Addl. Public Prosecutor had relied on the decision of the Apex Court in the case of Kalu Alias Laxminarayan Vs.

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State of Madhya Pradesh reported in (2019) 10 SCC 211 para 15.

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10] I have heard and considered the submissions made on behalf of the parties. The evidence on record is perused meticulously and analyzed as below;

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11] The evidence of PW No. 7/Dr. C. Lalnunhimi:who is the doctor who conducted the PME is examined first. She has deposed that on 21.10.2017, she had received requisition for conducting PME on the deceased Lalthanchami. She received the dead body at midday on 21.10.2017. When she received the body rigormortis had already set in on the body the deceased. She conducted external examination of the deceased body and found the following:

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1. 4x3 cm contusion on the scalp on the left parietalarea.

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1. There were multiple abrasions on the posterior part of the trunk, abrasions of

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about 6x25cm on the left side of upper abdomen.

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1. Multiple abrasions on the left shoulder, left upper arm, backside of trunk, left side of upper abdomen, below left breast, left upper thigh, left flank, both inner buttocks, right popliteal region behind knee).

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She also conducted examination of the innerorgans by opening the abdomen and found the following:

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The peritoneum was found intact and approximately 3 litres of blood was collected from the peritoneal cavity.

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The spleen had multiple lacerations on the visceral surface extending to the hilum (area where arteries and veins are connected to the spleen).

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12] In her opinion the cause of death was shock due to hemorrhage from the splenic rupture probably due to blunt traumaand it is unlikely that theinjuries weresustained due to a short fall. In her cross examination she stated that this is her first PME report during her career. That the external injuries were unlikely to cause death.

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13] The appellant on examination under section 313 Cr.P.C has on the other hand explained that the injuries sustained were due to her fall from the Jhum hut. The statement of the appellant under section 313 Cr.PC is as follows;

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“In the evening while the deceased was taking bath on the verandah of the Jhum hut which is about 6ft above the ground, the deceased slipped to the ground. I immediately ran to help herand took her inside the Jhum hut where I tended to her wounds. I washed her wounds and applied oil. I also gave her pain killer and since the

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pain did not subside I gave hersome liquor. We slept together in the Jhum hut that night. The next day thedeceased and I proceeded to the Jhum hut of Pu Lalzuia and I left the deceased in the jhum hut and I proceeded to the work of construction of waiting shed. After work Pu Lalzuia and Pu TBC. Liankhuma and I returned to the jhum hut. After having evening meal Pu Lalzuia and Pu TBC Liankhuma left for Hauruang Village. After they left, the deceased and I consumed liquor. On our return from work the deceased appeared to be drunk already. After I consumed liquor with the deceased, I went to take bath and the deceased was sitting on the verandah of the jhum hut. I informed her to be careful since she was already drunk. While I was taking bath I heard the noise of the deceased falling from the verandah. I immediately rushed to help her and took her inside the jhum hut where I inspected her body and removed her clothes. I changed her clothes and laid her on the floor. I then went to answer the call of nature and was carrying the torn clothes to the latrine and threw the torn clothes inside the pit. Thereafter returned to the jhum hut and I laid down beside her. At about 7pm the deceased was gasping and I called out to her but she did not replied. I tried to revive her by pushing on her chest and also attempted artificial respiration but she did not respond. I then went to Hauruang Village and informed Pi Sumkungi at Hauruang Village. Thereafter information was given to the village and to the Police. I also accompanied the villagers back to the Jhum hut. The police also accompanied us. I had appended my signature on the disclosure statement but I do not know the contents of the disclosure statement. I was taken by the police

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to the jhum hut of Pu Lalzuia on the second day after the alleged incident. Any sign of falling down from the Jhum hut would have been cleared due to rain”.

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14] In light of the explanation given by the appellant under 313 Cr.PC which is contradictory to the PME report the deposition of the other prosecution witness is examined.

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15] PW1. R. Lalnunmawia deposed that on 20.10.2017 they received the information that the deceased Lalthanchami had met with an untoward accident and had died in the jhum hut at Mel 4 Mual towards Hauruang village. He along with other members of the Local YMA proceeded to the P.O. On arrival at the P.O at about 10:00pm the police were already present and the dead body of the deceased was kept in the community Hall of Hauruang village. He saw the body of the deceased and observed that she had sustained multiple injuries: – (1) Bruise mark of dao on her stomach (2) Her hair was roughly cut from forehead (3) Blood stain on the back side. From the injuries they observed it did not appear to be an accidental death, he did not find any signs of falling from the jhum and therefore after consultation with other YMA and V.C members from the locality, PW1 had submitted the FIR. The accused/appellant was already apprehended by the police and kept in their vehicle. In his cross examinationhe stated that he did not have any direct knowledge nor was an eye witness to the incident.

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16] The deposition of PW2 K. Zirsangliana and the deposition of PW3. Lalremruata Sailo with regards to the incident are more or less the same. PW2

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was the YMA President and PW3 was the YMA secretary. They have both deposed

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that at around 9:00pm while they were in a meeting, they were informed that one dead body was recovered in the garden near the village. They rushed to the P.O inviting some person to follow them. There was a hut about 150 meters from the field and inside it the dead body was lying on the floor. They saw injuries/abrasions on her head, back side, chest, abdomen etc. the accused who was reportedly the husband of the victim was also near the dead body. He reported that the victim had fallen from the floor of the hut to the ground. However, on inspection of the ground they found no clue of human being falling. The police then took the body for PME. On 22.10.2017 police party came again to Hauruang village taking with them the accused person. It was reported that the accused had admitted his guilt and confessed before the police. So inthe presence of leaders of YMA, the accused was asked to narrate the incident. Then the accused narrated how he assaulted the victim by punching, kicking and by beating her with his dao on different parts of her body. The accused further stated that the clothes worn by the victim was torn and took off after the victim died and kept inside the latrine. He also stated that the dao he used was put on the wall of the hut near ‘Namthlak’. The statement was reduced into writing and he put his signature. As pointed and showed by the accused the dao and the wearing apparel (Kurta) of the victim were seized by the police. They stood as seizure witness.On cross examination they stated that they did not see cut injury on the

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body of the victim.

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17] PW 4. Lalrodinga stated that on the day of incident i.e. 20.10.2017 he was at home in his residence at Hauruang. At about 8:00pm he received a phone call from Pu Biaksanga informing him that the Lalthanchami had expired in the jhum hut belonging to Pu Zuia. He immediately went to the residence of Pu Biaksanga where the accused was present and was in a drunken state. He also saw that the accused was in possession of some liquor about half bottle. He informed the police station at Lunglei about the matter and immediately rushed to the place of occurrence. He was the first person to arrive at the P.O. Inside the jhum hut the deceased was laid on the floor and covered with a blanket. He did not touch the dead body or remove the blanket. He immediately stood guard at the door steps of the jhum hut in order to prevent the other people who arrived shortly from tampering with the evidences. After the arrival of the police they surveyed the jhum hut and surroundings. It was reported by the accused that the deceased had fallen from the jhum window and sustained injury. However, they did not find any signs of falling from the jhum hut window (Namthlak). Immediately below the jhum hut window were some vegetables (archangkawm) which were allegedly thrown while preparing dinner. There were also some nails protruding from the jhum hut window. However there were no signs of any person falling down from the jhum hut window near about the thrown vegetables there were three clumps of hair allegedly belonging to the deceased. These clumps of hair were seized by the police. He was not cited as seizure witness since he is a police official and there were

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other civilian witnesses. During cross examination nothing to discredit his statement was asked.

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18] PW5. Vanlalzuia and PW.6 TBC. Liankhuma have stated that on 20.10.2017 evening the wife (deceased) of accused prepared dinner and they ate the dinner along with the accused and wife (deceased). After dinner they left the accused and his wife, to proceed to Hauruang village. On arriving at Hauruang village,PW5 received a phone call after 8:00pm from P.C. Biaksanga of Hauruang village informing him that the wife of accused had expired. They proceeded to the residence of P.C. Biaksanga where the accused was also present at the residence of P.C. Biaksanga as he himself had reported the matter. After sometime they all proceeded to the place of occurrence. When they arrived at the P.O other people were also gathered and they waited outside the jhum hut for the arrival of police. They did not enter the jhum hut and did not see the dead body of deceased. On cross examination they stated that the accused and deceased did not quarrel at the time they were taking dinner together. He did not find the accused to be drunk at the time of dinner.

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19] PW 8. F. Lalremthanga deposed that he does not remember the exact date but on the fateful day at about 8:00pm he had proceeded from home to hunt in the jungle and he met the accused near the garden of Zodinsanga. The accused was alone and appeared drunk. He also was carrying some local liquor which he shared with him. The appellant then narrated how his wife had fallen from the jhum hut and that he had carried her to the jhum hut where the deceased allegedly died. They then

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immediately went to the house of Pu Biaksanga from where they informed the police.

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20] PW9 S.I. Lalnuntluangais the case I.O, who deposed that 20.10.2017 he received information from police official that one Lalthanchami, w/o Raymond had met with an accident near the jhum hut, near Hauruang field. He immediately proceeded to the alleged P.O along with police party. The accused Raymond was present at the P.O. The deceased laid on the floor and covered with a blanket. And he conducted inquest wherein he found multiple injuries on the body of the deceased, which led tosuspectthe husband/accused Raymond. He was apprehended immediately. Since the accused had stated that the deceased had fallen from the jhumand hurt herself. He inspected the P.Oandhe did not find any sign of rolling down on the ground as alleged by the accused. He also recorded the disclosure statement at Hauruang before visiting P.O in the presence of K. Zirsangliana and Lalremruata Sailo. He seized the following:1. Hair of alleged deceased 2.Yellow colour Kurta (torn) 3.Dao.He received postmortem report and aftertaking all the necessary steps and on completion of his investigation, submitted the charge sheet on finding a prima facie case u/s 302 IPC against the accused/ appellant.

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21] The accused/ appellant had deposed in the court as DW1 wherein he stated that he was severely interrogated and forcefully made to confess the alleged offence. That he was also taken to the Civil hospital but was not admitted and that the disclosure statement was forcefully extracted from himby the police as per their version and not his version. During cross examination he denied all the suggestions made. I however

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find that there is no evidence to support this claim.

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22] It is seen that the deposition of the prosecution witnesses PW1, PW2, PW3, PW4 and PW8 have all stated that they found no signs of the deceased victim falling from the jhum hut. I also find that you need not be an expert to give an opinion whether there are signs that a person had fallen from the Jhum hut .A person by applying his common sense should be capable of giving such an opinion.It is also questionable as to who is to be termed an ‘expert’, That the prosecution witnesses have also opined, that from the nature of injuries found on her body it cannot be caused by falling from a Jhum hut. The medical doctor has confirmed this by opining that it is unlikely that theinjuries weresustained due to a short fall. Thus from the post mortem report and the evidence of the prosecution witness, it can be safely concluded that the death of the deceased victim was not due to a fall from the Jhum hut but is proved that itwas a homicidal death.

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23] The Hon’ble Apex Court in Kalu Alias Laxminarayan Vs. State of Madhya Pradesh (supra) held as follows :

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“ 15. In Trimukh Maroti Kirkan 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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“14. If an offence takes place inside the privacy of a house and in

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such circumstances where the assailants have all the opportunity to plan

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and commit the offence at the time and in circumstances of their choice,

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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 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 Arijit Pasayat, 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 Section 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. “

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22. 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 false, it

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

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24] In the instant case the evidence of PW 5. Vanlalzuia and PW 6. TBC. Liankhuma clearly shows that on 20.10.2017 night the deceased victim was in the Jhum hut with the appellant. After PW5 and PW6 had their dinner with them, they had left at around 6:30 pm to go to Hauruang soon after which, at around 8:00 pm they are informed of the death of the victim.There is no mention of any other person being involved in this case. 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. The disclosure statement recorded by the case I.O which led to the recovery of the dao and the clothes which had got torn and worn by the victim at the of her death is denied by the appellant/accused.It is also noted that the dates in the signatures on the disclosure statement are different, but this does not dilute the incriminating evidence against the appellant. Thus the circumstances unerringly pointing towards the guilt of the appellant. The circumstances as highlighted above, taken cumulatively, form a chain so complete that no other conclusion can be made but that the crime was committed by the appellant and none else.

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25] Thus, from the deposition of the prosecution witnesses, documents on record and the decision of the Hon’ble Apex court, I find that there is no reason to interfere with the order dated 15.11.2018 passed by the District and Sessions Judge, Lunglei,

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Lunglei Judicial District, in convicting the appellant under section 304 IPC and

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sentencing him vide order dated 19.11.2018, to undergo R.I 10 years and a fine of Rs.

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5000/-i.d S.I for a period of one year.

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26] Crl. A 40/2018 (J) is thus dismissed and stands disposed of.

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27] In appreciation of the services of the learned Amicus Curiae, 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

Raymond Zothanchama v. The State of Mizoram

Case brief

What is this about?

What did the court decide?

Raymond Zothanchama v. The State of Mizoram

Case brief

What is this about?

What did the court decide?

What the court decided

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