Shri Bharat Bora Vs State of Assam

Advocate for the Petitioner : MR Z ALAM, MR. N D SARMA,MR E U AHMED,MS. N NAZNEEN,MS. S SULTANA,MR. N MAHAJAN,MR N J DAS,MR B PUSHILAL,MR. P K DAS,MR. A CHAUDHURY,MD R ALI

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Advocate for the Respondent : PP, ASSAM,

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BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY HONOURABLE MRS. JUSTICE MITALI THAKURIA

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Date of hearing : 30.01.2025

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Date of Judgment & Order : 13.05.2025

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JUDGMENT & ORDER (CAV)

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(M. Thakuria, J)

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This criminal appeal under Section 374, Code of Criminal Procedure, 1973 [‘the Code’ or ‘CrPC’, for short] is directed against the Judgment and Order dated 03.11.2017, passed by the Court of learned Sessions Judge, Jorhat in Sessions Case no. 18 [J-J] of 2011, whereby the accused-appellant has been convicted for the offence of murder under Section 302, Indian Penal Code [IPC] and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 20,000/-, in default of payment of fine, to undergo rigorous imprisonment for another 6 [six] months.

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2. The investigation was set into motion on receipt of a First Information Report [FIR] from the informant, Shri Suresh Hazarika by the Officer In-Charge, Jorhat Police Station on 14.08.2010. In the FIR, the informant had inter-alia alleged that his daughter, Bijay Lakshmi Hazarika got married to the accusedappellant, a resident of Pokamura Komar Gaon, Jorhat on 02.06.2010. The informant had further stated that at around 05-00 a.m. on 14.08.2010, the face of his daughter got half-burnt by the fire from a gas stove and she was immediately admitted in the Jorhat Medical College & Hospital [JMC&H] at Jorhat. It was stated that Bijay Lakshmi Hazarika breathed her last at the

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JMC&H at around 05-30 a.m. on 14.08.2010. The informant further stated that at the time of lodging the FIR, the dead body of the deceased was at the JMC&H. The informant further stated that he suspected that his son-in-law, that is, the accused-appellant and his mother, Smti. Khudmai Bora, were behind the murder. Stating so, the informant requested the Officer In-Charge, Jorhat Police Station to take necessary steps into the alleged murder of his daughter.

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3. On receipt of the FIR, the Officer In-Charge, Jorhat Police Station registered the same as Jorhat Police Station Case no. 489 of 2010 [corresponding G.R. Case no. 986 of 2010] for the offence under Section 302, IPC read with Section 34, IPC on 14.08.2010 and entrusted one Shri Bidyut Bikash Baruah, Sub-Inspector of Police & In-Charge, Rowriah Police Out Post with the investigation of the case.

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4. During the course of investigation, the Investigating Officer [I.O.], Shri Bidyut Bikash Baruah [P.W.15] of the case visited the place of occurrence, that is, the house of the accused-appellant at Pokamura Komar Gaon and recorded the statements of the witnesses who were found conversant with the facts and circumstances of the case, under Section 161, CrPC, drew the Sketch Map of the site of occurrence and seized a number of items from the house of the accused persons by preparing the Seizure List in presence of witnesses. The postmortem examination on the dead body of the deceased was performed at the JMC&H on 14.08.2010 itself pursuant to a general diary entry vide General Diary Entry no. 322 dated 14.08.2010 registered at the JMC&H Out Post. Finding the accused, Smti. Khudmai Bora in her house, she was arrested. At the time of the

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visit to the place of occurrence by the I.O., the accused-appellant was found absconding. After completing a part of the investigation of the case up to 04.09.2010, the said I.O. [P.W.15] was transferred from the Rowriah Out Post and on being so transferred, he handed over the case diary of the case to the Officer In-Charge, Jorhat Police Station. The remaining part of the investigation was taken up by another I.O., Binod Chetia from 07.09.2010. The accusedappellant surrendered before the court on 26.11.2010 and after such surrender, the accused-appellant was taken into custody by making a prayer by the I.O. before the Court. The I.O. of the case after collecting the Post-Mortem Examination [PME] Report and completing the remaining part of investigation of the case, submitted a charge-sheet under Section 173[2], CrPC vide ChargeSheet no. 431/2010 on 22.10.2010 finding a prima facie case for commission of the offence under Section 302, IPC read with Section 34, IPC against the two accused persons.

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5. On submission of the Charge-Sheet, the Court of learned Chief Judicial Magistrate, Jorhat secured the appearance of the two charge-sheeted accused persons on 01.02.2011. As the accused person, Smti. Khudmai Bora was earlier released on bail, she was allowed to remain on previous bail on an application being filed on her behalf in that connection. The appearance of the accusedappellant was secured from jail custody. As the copies were ready, the same were furnished to the accused persons in compliance of the provisions of Section 207, CrPC. As the offence under Section 302, IPC is exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate, Jorhat, by Order dated 01.02.2011, committed the case records of G.R. Case no. 986 of 2010 to the Court of Sessions, Jorhat as per the provisions prescribed in Section 209,

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CrPC. The learned Public Prosecutor was accordingly notified about the commitment of the case to the Court of Sessions. The accused-appellant was remanded to judicial custody and the Superintendent of Central Jail, Jorhat was directed to produce the accused-appellant before the learned Court of Sessions, Jorhat on 05.02.2011.

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6. After commitment and receipt of the case records of G.R. Case no. 986 of 2010, the learned Court of Sessions, Jorhat [‘the trial court’] registered the same as Sessions Case no. 18 [J-J] of 2011. After hearing the learned Public Prosecutor and the learned defence counsel and upon perusal of the materials on record, the learned trial court, on 21.03.2011, framed the following charge against the two charge-sheeted accused persons:-

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“That you on or about 14.08.2010 at 05-00 a.m. at Pakamura Kumar Gaon under Jorhat Police Station committed murder with an intention to cause death of Bijay Lakhsmi Hazarika, wife of Bharat Bora in furtherance of your common intention and thereby committed an offence punishable under Section 302, IPC read with Section 34, IPC and within the cognizance of this Court and I hereby direct you be tried on the said charge.”

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7. When the charge was read over and explained to the accused persons, they pleaded not guilty and claimed to be tried. In order to bring home the charge against the two accused persons, the prosecution side examined as many as 19 [nineteen] witnesses and exhibited 14 [fourteen] nos. of documents. After closure of evidence from the prosecution side, the two accused persons including the accused-appellant, were examined under Section 313, CrPC by asking their explanation as regards the incriminating evidence

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emerged against them. The plea of the accused persons were denial. When the accused persons were asked whether they would adduce evidence in their defence, they declined to adduce any evidence. Thereafter, the learned trial court heard the arguments of the learned Public Prosecutor and the defence counsel. After conclusion of the argument and after evaluation of the evidence/materials on record, the learned trial court delivered the Judgment and Order on 03.11.2017. The learned trial court had reached a view that the prosecution side was not able to prove the charge against the accused person, Smti. Khudmai Bora for the offence under Section 302, IPC read with Section 34, IPC and she was acquitted from the charges on benefit of doubt. Insofar as the accused-appellant is concerned, the learned trial court reached a finding that the case against him for the offence of murder has been proved beyond reasonable doubts and finding him guilty for the offence under Section 302, IPC, the accused-appellant has been sentenced in the manner, mentioned above.

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8. We have heard Mr. N. Mahajan, learned counsel for the accused-appellant; and Ms. A. Begum, learned Additional Public Prosecutor for the respondent State.

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9. It is submitted by Mr. Mahajan, learned counsel for the appellant, that the evidence on record does not warrant conviction of the accused-appellant under Section 302, IPC and as such, the impugned Judgment and Order of conviction and sentence dated 03.11.2017, passed by learned Sessions Judge, Jorhat in Sessions Case no. 18(J-J)/2011 is not sustainable in the eye of law and hence, the same is liable to be set aside and quashed. He submitted that the learned Trial Court failed to appreciate the evidence on record in its true perspective and thus arrived at a wrong decision. He further submitted that initially the case was

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against 2 (two) accused persons, i.e. the present accused-appellant, and his mother/mother-in-law of the deceased, but while passing the Judgment and Order, the learned Trial Court acquitted the other accused person, namely, Khudmai Bora, and convicted the present appellant under Section 302, IPC. It is an admitted fact that at the relevant time of incident, the present accusedappellant along with his mother (co-accused) and the deceased were staying in the same house wherein the incident had happened. But, in spite of the similar or identical evidence against the 2 (two) accused persons, the learned Trail Court had convicted the accused-appellant only and acquitted the co-accused. In that context, he also relied on a decision of Hon’ble Supreme Court passed in the case of Ram Singh Vs. State of Uttar Pradesh , reported in (2024) 4 SCC 208 , and mainly emphasized on paragraph Nos. 37 & 38 of the judgment, which reads as under:

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“37. This Court in Javed Shaukat Ali Qureshi, has held that when there is similar or identical evidence of eyewitnesses against two accused by ascribing them the same or similar role, the court cannot convict one accused and acquit the other. This Court clarified as under: (SCC p. 175, para 15)

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“15. When there is similar or identical evidence of eyewitnesses against two accused by ascribing them the same or similar role, the court cannot convict one accused and acquit the other. In such a case, the cases of both the accused will be governed by the principle of parity. This principle means that the criminal court should decide like cases alike, and in such cases, the court cannot make a distinction between the two accused, which will amount to discrimination.”

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38. Thus, on a careful analysis of the evidence on record, we are of the view that the appellant should be given the benefit of doubt as according to us, the prosecution could not prove his guilt beyond all reasonable doubt. Any lingering doubt about the involvement of an accused in the crime he is accused of committing, must weigh on the mind of the court and in such a situation, the benefit of doubt must be given to the accused. This is more so when the co-accused is acquitted by the trial court on the same set of evidence.”

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10. Mr. Mahajan further submitted that as per the evidences of the I.O. and

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the other witnesses, it is alleged that after the said incident the accused was not found in his house and he was stated to be absconding from his house and his mother, i.e. the co-accused, was accordingly arrested by police. But a person cannot be held guilty only on the ground of absconding from the place of incident. There may be many factors or out of fear a person may be absconded, but on the basis of the said ground, he cannot be held guilty for committing such offence. In that context, Mr. Mahajan relied on a decision of Hon’ble Supreme Court passed in Sujit Biswas Vs. State of Assam , reported in (2013) 12 SCC 406 , wherein it has been held that “mere abscondence of an accused does not lead to a firm conclusion of his guilty mind. An innocent man may also abscond in order to evade arrest, as in light of such a situation, such an action may be part of the natural conduct of the accused. Abscondence is in fact relevant evidence, but its evidentiary value depends upon the surrounding circumstances, and hence, the same must only be taken as a minor item in evidence for sustaining conviction.”

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11. Mr. Mahajan further submitted that from the evidences on record, it is seen that there was no evidence of any strain relationship between the deceased and the accused/appellant after their marriage. Rather, in the night, prior to the incident, the deceased also had a discussion with her father/informant and at that time, there was no mention that she was tortured by her husband (appellant) and she normally talked with her father asking as to how to write a joining report in her new place of posting. More so, from the evidence of the PWs, it is already seen that there is no other cases pending against the present accused-appellant with the allegation of any torture on the deceased. He further submitted that admittedly the deceased was staying with

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the accused-appellant along with his mother, but there is no evidence that the relationship between the deceased and the accused-appellant was strained to rule out the existence of any other hypothesis or to establish the case against the accused-appellant on the basis of the circumstantial evidence. In that context also, Mr. Mahajan cited a decision of Hon’ble Supreme Court passed in case of Nagendra Sah Vs. State of Bihar , reported in (2021) 10 SCC 725 , and emphasized on paragraph No. 19 of the said judgment, which reads as under:

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“19. In this case, as mentioned above, neither the prosecution witnesses have deposed to that effect nor any other material has been placed on record to show that the relationship between the appellant and the deceased was strained in any manner. Moreover, the appellant was not the only person residing in the house where the incident took place and it is brought on record that the parents of the appellant were also present on the date of the incident in the house. The fact that other members of the family of the appellant were present shows that there could be another hypothesis which cannot be altogether excluded. Therefore, it can be said that the facts established do not rule out the existence of any other hypothesis. The facts established cannot be said to be consistent only with one hypothesis of the guilt of the appellant.”

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12. Mr. Mahajan further submitted that the learned Sessions Judge had convicted the accused-appellant only on the basis of conjecture and surmises without properly appreciating the evidence on record. He further submitted that admittedly the appellant, being the husband of the deceased, was staying under the same roof and may also be the last person to be seen with the deceased, but only for such companion of the deceased with the appellant, it cannot be presumed that the accused-appellant is guilty of the offence or he has committed the murder of the deceased unless it is supported with some other evidences and other circumstances to convict the accused-appellant. To

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substantiate his plea, Mr. Mahajan also relied on a decision of Hon’ble Supreme Court which is reported in (2019) 9 SCC 738 (Gargi Vs. State of Haryana) and basically emphasized on paragraph Nos. 33.1, 33.2 & 33.3 of the judgment, which read as under:

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“33.1. Insofar as the 'last seen theory' is concerned, there is no doubt that the appellant being none other than the wife of the deceased and staying under the same roof, was the last person the deceased was seen with. However, such companionship of the deceased and the appellant, by itself, does not mean that a presumption of guilt of the appellant is to be drawn. The Trial Court and the High Court have proceeded on the assumption that Section 106 of the Indian Evidence Act [106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.] directly operates against the appellant. In our view, such an approach has also not been free from error where it was omitted to be considered that Section 106 of the Indian Evidence Act does not absolve the prosecution of its primary burden. This Court has explained the principle in Sawal Das (supra) in the following:-

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"10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused."

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33.2. On the facts of the present case, it emerges that as per the version of PW-7, the deceased was lastly in his company on 28.04.1997 when he allegedly expressed his dejection and fear as also his plan to return with luggage. The appellant has pointed out that the deceased was with her in the morning of 29.04.1997 when he pointed out his tour programme commencing that day with scheduled return on 03.05.1997. It is not in dispute that the deceased was regularly on tour for longer durations of about two weeks in connection with his duties. The dead body was recovered on 01.05.1997 and as per post-mortem report, the probable time that had elapsed between death and postmortem (on 02.05.1997 at 12.30 p.m.) was 24 to 72 hours. On the basis of this opinion, it cannot be assumed by way of arithmetical calculation that the deceased might have met with his end on 29.04.1997. The possibility of it being a day later is not ruled out.

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33.3. In the given set of circumstances, the last seen theory cannot be operated against the appellant only because she was the wife of the deceased and was living with him. The gap between the point of time when the appellant and deceased were

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last seen together and when the deceased was found dead had not been that small that possibility of any other person being the author of the crime is rendered totally improbable. In SK. Yusuf (supra), this Court has said:-(SCC pp. 760-61, para 21)

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"21. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible."

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13. Mr. Mahajan further submitted that admittedly the accused-appellant did not adduce any evidence to substantiate his plea of innocence, but the primary burden of proof beyond reasonable doubt always lies on the prosecution and the prosecution cannot absolve from the duty of discharging his general or primary burden of proof. In this regard, he also cited a decision of Hon’ble Supreme Court passed in Sawal Das Vs. State of Bihar , reported in (1974) 4 SCC 193 , and emphasized on paragraph Nos. 10 & 11 of the said judgment, which read as under:

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“10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. The crucial question in the case before us is: Has the prosecution discharged its initial or general and primary burden of proving the guilt of the appellant beyond reasonable doubt?

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Perhaps the Trial Court had adopted a more logical course upon facts and circumstances indicating that the appellant was one of the three persons whose conjoint actions had, on the morning of 28-5-1965, resulted in the death of Smt. Chanda Devi. It may be that the appellant was the primary or the main actor in the actual commission of the murder after his step-mother had sought his aid in what appeared to be an appeal to him by her to teach his wife a lesson so that she may not be troubled by her any more. But, the effect of the finding that the appellant went into the room from which the cries of the murdered woman, to save her from being killed, came immediately afterwards, is diluted by the evidence that Jamuna Prasad and Smt. Kalawati had followed him. The High Court s view could perhaps find some support from the fact that Jamuna Prasad was seen pacifying and rebuking the children outside

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while the appellant may have been dealing with his wife in a manner which brought about her death. But, all this is a matter of conjecture. Lurking but not unreasonable doubts and suspicions seem to us to envelope and assail the prosecution case atleast after Jamuna Prasad and Smt. Kalawati have been acquitted. As the learned Counsel for the appellant has rightly pointed out after the acquittal of Kalawai and Jamuna Prasad for murder, by the use of Sec. 34 Indian Penal Code, the individual and not the conjoint liability of the appellant has to be established by the prosecution before the appellant could be convicted under Section 302 Indian Penal Code simpliciter. Beyond the fact that the appellant is the husband of the murdered wife, who might be ordinarily expected to take the initiative in teaching her a lesson, especially when Smt. Kalawati had invoked his aid, and a possibly natural reluctance of a normal father-inlaw to take the initiative or a leading role in such a matter, both of which could be matters of conjecture or presumption only, there is nothing which could fasten or conclusively fix the liability for any particular or separate act of the appellant which may be said to have caused, his wife’s death.”

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14. Relying on the above referred judgments, Mr. Mahajan further submitted that the prosecution could not establish from the circumstantial evidence that the accused-appellant had committed the murder of his deceased wife. More so, there are sufficient contradictions found in the evidences of prosecution witnesses which shakes the veracity of the prosecution case and in the same time, the P.Ws. 3, 13 & 17 are also declared as hostile by the prosecution. He further submitted that only for non-production of defence witnesses or not taking any specific plea in the statement recorded under Section 313 Cr.P.C., it cannot be the basis for conviction and it is also not sufficient to pass any order of conviction on circumstantial evidence. Accordingly, he submitted that this is a fit case wherein the accused-appellant is entitled for acquittal and set at liberty.

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15. Ms. Begum, learned Additional Public Prosecutor, submitted in this regard that the learned Sessions Judge had rightly passed the order of conviction after appreciating the evidence on record in its true perspective including the evidence of the doctor. She further submitted that there is no dispute that the deceased died while she was staying with the present accused-appellant along

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with her mother-in-law (co-accused). From the medical evidence of the doctor (P.W.14), it is seen that the death was not suicidal but it was homicidal in nature and it is clearly opined by the doctor that the death was due to asphyxia as a result of strangulation sustained by the deceased and all the injuries sustained by the deceased is homicidal in nature. Further, it is also opined by the doctor that the victim had superficial burn injury from the face to the anterior part of the chest including the neck, but it cannot be ascertained whether strangulation was caused by bare hand or by other object like rope, cloth etc. Further, in his cross-evidence, it is clearly stated by the doctor that hanging would have caused fracture on one part of the cervical spine, but on Post-Mortem Examination, he did not find any fracture on the cervical spine of the victim and thus, the hanging is clearly ruled out by the doctor (PW-14). More so, in the Post-Mortem Report, the doctor also opined that all the burn injuries are postmortem in nature and the injury nos. 2, 3 & 4 are due to strangulation which caused the death of the victim. Accordingly, Ms. Begum, learned Additional Public Prosecutor, submitted that the cause of death of the deceased is purely homicidal in nature and the prosecution could establish that the present accused-appellant committed murder of his wife by strangulating her neck.

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16. Ms. Begum further submitted that the defence could not give any proper explanation in regards to the death of the deceased and he did not take any specific plea explaining the death of the deceased. More so, admittedly, the death occurred in the house of the accused and from the medical report, it is confirmed that the victim died due to strangulation and not for the burn injuries she sustained which are superficial in nature and also post-mortem in nature. She further submitted that admittedly there is no eye witnesses to the

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prosecution case. Though the defence tried to bring a picture that the victim died due to burn injuries sustained by her, but from the entire circumstances brought by the prosecution as well as from the evidences adduced by the prosecution witnesses and the injuries described by the doctor, it is very much evident that the accused-appellant committed the murder of his deceased wife by strangulating her neck.

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17. Ms. Begum further submitted that Section 106 of the Evidence Act would be applicable to cases where the prosecution could succeed in proving facts from which a reasonable inference can be drawn regarding the death and unless the said presumption is disproved by the defence, the presumption can be accepted as an inference as to the existence of the fact that the appellant had committed the murder of his wife. In that context, she also relied on a decision of Hon’ble Supreme Court which was reported vide 2023 SCC OnLine SC 1261 (Balvir Singh Vs. State of Uttarakhand) and emphasized on paragraph Nos. 52 & 53 of the judgment, which read as under:

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“52. In the case on hand it has been established or rather proved to the satisfaction of the court that the deceased was in company of her husband i.e., the appellant-convict at a point of time when something went wrong with her health and therefore, in such circumstances the appellant-convict alone knew what happened to her until she was with him.

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FAILURE ON THE PART OF THE APPELLANT-CONVICT IN OFFERING ANY PLAUSIBLE EXPLANATION IN HIS FURTHER STATEMENT RECORDED UNDER SECTION 313 OF THE CRPC

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We take notice of the fact that the appellant-convict (husband) has not explained in any manner as to what had actually happened to his wife more particularly when it is not in dispute that the appellant-convict was in company of his wife i.e., deceased. It is important to bear in mind that the deceased died on account of poisoning. The poison which was detected in the viscera was found to be “aluminium phosphide”. Although, the appellant-convict tried to project a picture that no sooner the deceased fell sick than he immediately took her to the Sanjay Gandhi Hospital at Delhi, yet,

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there is no evidence worth the name in this regard. The appellant-convict was expected to lead some evidence as to what had transpired at the Sanjay Gandhi Hospital. He has maintained a complete silence. It is only the appellant-convict who could have explained in what circumstances and in what manner he had taken his wife to the Sanjay Gandhi Hospital and who attended his wife at the hospital. If it is his case, that his wife was declared dead on being brought at the hospital then it is difficult to believe that the hospital authorities allowed the appellant to carry the dead body back home without completing the legal formalities.”

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18. Ms. Begum further submitted that though there are some minor contradictions found in the evidences of the prosecution witnesses and 3 (three) numbers of witnesses had to be declared hostile by the prosecution, but the evidences of the prosecution witnesses are sufficient to prove the guilt of the accused-appellant. She further submitted that the P.W.1, who is the informant/father of the victim had stated in his evidence that on 09.08.2010 also, he had a telephonic talk with his deceased daughter wherein she complained that her husband had kicked her on that day and her mother-in-law also rebuked her that night alleging that she did not do the daily chores. More so, on the previous night of the incident, he also had a talk with his daughter wherein she was asking for some advice to write a joining report in her new assignment and on the next day, at about 5.30 a.m., the cousin of the present appellant had informed him that his daughter had suffered burn injuries on her face by fire of gas stove while she was preparing tea. But, when he came to the hospital and saw the dead body of his daughter, he did not notice any specific burn injuries on her face. Rather he noticed a black mark measuring about 1 inch in width on her neck with some ash on her neck and nose. He also noticed few strands of her hair above her forehead got burnt and that her tongue had protruded from mouth. He also found mark of vermillion on her forehead and her face was normal. After seeing the dead body of his daughter, he suspected some foul play in the incident and accordingly, he lodged the F.I.R. PW-2 also

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noticed one black mark in the neck due to pressing and her tongue was protruded. As per him also, he also noticed some minor burn injury on her cheek and forehead with some hair got burnt and he also saw the vermillion on her forehead. The other evidences also supported the case of the prosecution especially in regards to injuries sustained by the deceased.

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19. Further Ms. Begum submitted that the accused absconded from the hospital itself and he did not co-operate in the investigation of the case which shows his suspicious activities to take presumption that he committed the murder of his deceased wife. She further submitted that the learned Special Judge rightly observed that there was no sufficient evidence against other coaccused person to convict her under Section 302, IPC, but only for the acquittal of the co-accused cannot be the ground for acquitting the present accusedappellant and the order of conviction was passed considering the sufficient incriminating evidences against the present accused-appellant. Ms. Begum accordingly submitted that it is not at all a fit case to allow the appeal or to acquit the accused-appellant and the learned Sessions Judge had rightly passed the order of conviction and hence, the interference of this Court is not at all necessary and therefore she prayed for dismissal of the present appeal.

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20. After hearing the submissions made by the learned counsels for both sides, we find it necessary to scrutinize the evidences on record before arriving at any decision.

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21. P.W.14 is the doctor who conducted the post-mortem examination of the

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deceased and while conducting the post-mortem, he found the following injuries:

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“I - EXTRANAL APPERANCE

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Condition of subject stout emaciated, decomposed etc:

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A female adult dead body of average built and about 25 years of age with protruded tongue and rigor mortis in all the limb complexion- fair

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Wounds – position, and character:

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(i) Supergical burn injury present that the front side of the neck externally upto the mouth externally and upper 1/3^rd of antichell

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(ii) On dissection tissues found pinkish in colour with a horizontal tissue mark severly avrasion in the upper part extending from one side to the other side auterior

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(iii) Cantinion also seen in the lower part of the neck tissue on the sites

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(iv) Both eyes congested and severe petechial hamargeous

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(v) Curved hair

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Bruise Position size and nature:

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Mark of ligature on neck dissection, etc.:

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II - CRANUM AND SPINAL CANAL

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Scalp, skull, vertebrae : normal

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Membrane : congested

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Brain and spinal cord : Brain-congested

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III - THORAX

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Walis ribs and cartilages : Congested

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Pleurae : Congested

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Laryax and trach ere : Laryax – congested

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Trach ere- found

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compresent autera strainly

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Right lung : Congested- and shows

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Left lung : Congested- petechial

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hamergous

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Pericar (dium) : Congested 7. Heart : Congested 8. Vessels : Congested IV - ABDOMEN 1. Walls : Normal 2. Peritonoum : Normal 3. Mouth, pharyanx, oesophagus : Congested 4. Stomach and its contents : contains food particles 5. Small intestine and its contents : Contains partially digested food particles and gas 6. Large intestine and its contents : Contains digested particles and gas 7. Liver : congested 8. Spleen : congested 9. Kidneys : congested 10. Bladder : partially fuled with 11. Organs of generation external and internal : Normal V - MUSCLES, BONES AND JOINTS 1. Injury : As described 2. Disease or deformity : Absent 3. Fracture : Absent 4. Dislocation : Absent

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MORE DETAILED DESCRIPTION OF INJURY OR DISEASE

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Burn injury post mortem in nature Injury No. 2, 3 & 4 are due to strangneth”

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22. The doctor accordingly gives his opinion as follows:

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“WOUNDS, POSITION, SIZE AND CHARACTER

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1. Superficial burn injury present at the front and side of the neck externally up-to the mouth externally and upper 1/3^rd of anterior chest.

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1. On dissection, tissues found were pinkish in colour with a horizontal tissue mark showing abrasion in the upper part extending from one side to the other side anteriorly.

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1. Contusion also seen in the lower part of the neck tissue on the sites.

¶119

1. Both eyes were congested and shows petechial haemorrhage.

¶120

SCALP, SKULL & VERTEBRAE – Normal.

¶121

MEMBRANE – Congested.

¶122

BRAIN AND SPINAL CORD – Brain congested.

¶123

LIVER, SPLEEN, KIDNEYS AND BLADDER – Congested. Bladder is filled with urine. WALLS, RIBS & CARTILAGE – Congested.

¶124

ORGANS OF GENERATION, EXTEMA & INTERNAL – Normal.

¶125

WALLS, PERITONEUM, MOUTH, PHARYNX AND OESOPHAGUS – Normal.

¶126

STOMACH AND ITS CONTENTS- Contains food particles.

¶127

SMALL INTESTINE AND ITS CONTENTS – Contains partially digested food particles and gas.

¶128

LARGE INTESTINE AND ITS CONTENTS

¶129

Contains liquid fluid and gas.

¶130

PLEURAE – Congested.

¶131

RIGHT AND LEFT LUNG – congested and shows petechial haemorrhage.

¶132

HEART – Congested.

¶133

In my opinion the cause of death was due to asphyxia as a result of strangulation sustained by the deceased. All the injuries sustained by the deceased is homicidal in nature. Time since death is more than six hours.

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Exhibit-7 is the Post-mortem Report where Exhibit 7(1) is my signature.

¶135

The asphyxia was caused by strangulation. However, as the victim had

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superficial burn injuries from the face to the anterior part of the chest including the neck it cannot be ascertained whether strangulation was caused by bare hands, by some object like rope, cloth etc.”

¶138

23. Accordingly, the doctor opined that the death was due to asphyxia as a result of strangulation caused by the deceased. All the injuries sustained by the deceased are homicidal in nature. Further he deposed that the asphyxia was caused by strangulation, but due to burn injuries from the face to the anterior part of the chest including neck, it cannot be ascertained whether the strangulation was caused by bare hands or by some other objects like rope, cloth etc. Further, in his cross-examination, he specifically stated that he did not find any fracture of the cervical spine of the victim. So, the hanging is clearly ruled out.

¶139

24. Thus, from the evidence of the doctor, it is very much evident that the death of the deceased was homicidal in nature and the strangulation mark was noticed/observed by the doctor at the time of Post-Mortem Examination and the doctor also ruled out the probability of hanging of the deceased. More so, from his report, it is also seen that the burn injuries sustained by the victim was superficial in nature and those are also post-mortem in nature. The death is only due to asphyxia as a result of strangulation. So, it is to be seen as to who caused the death of the deceased by strangulating her.

¶140

25. P.W.1, the informant/father of the deceased, lodged the F.I.R. with the allegation that the present accused-appellant and his mother committed murder of his daughter. In his testimony, he deposed that his daughter was working as

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a Computer Assistant since before her marriage and on 09.08.2010, she had a telephonic talk with the informant wherein she alleged that her husband, i.e. the present appellant, had kicked her on that day and her mother-in-law (coaccused) also rebuked her in that night alleging that she did not do the daily chores. Again on 13.08.2010, at about 8.30 p.m., she also had a talk with the informant and she informed that she got a contractual job of Science Teacher in Jorhat Tekela Gaon School and also asked him as to how to write the joining report. But, surprisingly, on the next day, i.e. on 14.08.2010, at about 5.30 a.m., he was informed by one of the cousin brother of the accused-appellant that his daughter had suffered burn injuries on her face by the fire of gas stove while she was preparing tea. When he asked as to whether his daughter had been taken to hospital or not, she replied that the vehicle could not be managed for that purpose and then the informant asked her to call for 108 ambulance and take her to hospital. In the meantime, the informant, along with his wife, came to the house of the accused-appellant wherein they got the information that their daughter had already been taken to Jorhat Civil Hospital and immediately, the informant, along with his wife, rushed to the Jorhat Civil Hospital. On reaching the hospital, at about 7.45 a.m., he saw the dead body of his daughter and he did not notice any specific burn injury on her face except one black mark, measuring about 1 inch in width, on her neck. He also saw little ash on her neck and nose. He also noticed few strands of her hair above her forehead got burnt and her tongue had protruded from mouth. The informant also found mark of vermillion on her forehead and her face was normal. Seeing the dead body of his daughter, he had a suspicion and immediately he lodged the F.I.R. He also deposed that when he reached the hospital, the appellant was present there, but after lodging of the F.I.R., when he returned back, he found that his

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son-in-law (present appellant) was not there. Accordingly, the inquest was done by Magistrate in his presence and he also put his signature in the Inquest Report as well as in the F.I.R. Thereafter, the body was taken for Post-Mortem Examination and since then, his son-in-law (accused-appellant) was absconding.

¶145

26. From his cross-evidence, it reveals that his daughter occasionally paid visit to his house on Saturdays, but she did not intimate him about any other dispute with her husband except the occurrence that took place on 09.08.2010. However, he did not make any mention in regards to the incident of 09.08.2010 in the F.I.R. which was informed to him by his daughter. In his cross-evidence, he denied when suggested that his daughter did not inform anything about the incident of 09.08.2010 and he did not receive any phone call on 09.08.2010 from his daughter. He also stated that the accused-appellant had taken his daughter to hospital and he also met the accused in the hospital. He further denied when suggested that he stated before the police that her neck was severely burnt and he also noticed the burn injury on her forehead, face and left hand. From his further cross-evidence, it is seen that the police initially recorded his statement in the Jorhat Medical College Out Post when his daughter was admitted in the hospital and after 4-5 days, the I/C of Rowriah O.P. interrogated him in Jorhat Sadar P.S. He also admitted in his cross-evidence that his daughter did not raise any serious allegation against her husband when she occasionally visited to their house. He also stated in his cross-evidence that when he visited the hospital he did not notice burn injury specifically, but at the time of inquest, he noticed the injury mark on the neck and the burn injury on her face which raise suspicion and therefore he lodged the F.I.R.

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27. P.W.2 is the neighbor and he was informed about the incident by P.W.1 and he also went to the hospital. When he reached the hospital, at about 8.00 a.m., he saw the dead body of the deceased and after some time, the police, along with Magistrate, also arrived there and then he noticed a black mark in the neck of the deceased arising out of pressing the neck and her tongue was also protruded little. He also noticed some minor burn injury on her cheek and forehead and her face did not get burn. He also saw vermillion on her forehead and he was present at the time of inquest and accordingly put his signature.

¶148

28. In his cross-evidence, he denied when suggested that the accused was present when the police arrived in the hospital and also denied when suggested that he stated before the police that he saw injury marks on the face, chest and head of the deceased.

¶149

29. P.W.3 is the cousin brother of the accused-appellant and he deposed that there was a cordial relationship between the accused-appellant and the deceased. Hearing the noise from the house of the accused, he immediately rushed there and saw the deceased lying in a burnt condition in the kitchen and the gas stove was burning at that time. He immediately switched off the regulator and in the meantime, someone called the ambulance and the deceased was brought to the hospital.

¶150

30. However, this witness was declared as hostile by the prosecution and cross-examined him and confronted with the statement made by him while recording his statement under Section 161 Cr.P.C. While cross-examining by the

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prosecution, he denied the entire statement made before the police under Section 161 Cr.P.C. and he further stated in his cross-evidence by defence that the deceased was not in a talking condition while he visited to their house and she was completely burnt at that time.

¶153

31. P.W.4 is also one of the cousin brother of the accused-appellant and also resides near to the house of the accused-appellant. As per his testimony also, on the day of incident, in the morning hours, hearing the noise from the house of the accused, he came there and found that the deceased lying in the kitchen and her head was on the lap of his mother. His mother arrived at the place of occurrence prior to his arrival. He accordingly noticed some burn injury on the head, neck and cheek of the deceased and her wearing blouse was slightly burn and torn and other wearing clothes were quite o.k. Some other people also gathered there and informed him that the deceased got burn injury from gas stove. He immediately called the 108 ambulance and thereafter the accusedappellant came near to the deceased. On enquiry made by him, the accusedappellant told him that his wife was burnt by a gas stove. He also went to the hospital with the accused, but when the deceased was brought in the hospital, it was informed that she already expired. Doctor also advised them to inform police and after sometime, the family members of the deceased arrived and accordingly the police and the Executive Magistrate also came to do the needful. He was also present at the time of inquest and put his signature accordingly. He further testified that when he arrived at the place of incident, the gas stove was already switched off and the deceased was lying on the floor at the distance of 4½/5 feet away from the gas stove. He further deposed that the accusedappellant was not present at the time of arrival of Police and the Magistrate.

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32. In his cross-evidence, he stated that he never heard about any quarrel between the accused and the deceased. When visited to the place of occurrence, his aunt (co-accused) was lying on the bed as she was suffering from high blood pressure. The accused-appellant also visited to the hospital and also talked with the doctor regarding the treatment for his wife. But, prior to any treatment, it was declared by the doctor that she had already expired.

¶156

33. P.W.5 deposed that on the day of incident, at about 5.00 a.m., she heard noise from the house of the accused which is situated adjacent to their house and accordingly, she herself, along with Raju Borah (PW-3), went to the house of the accused persons and saw that the wife of the present appellant was lying in the kitchen and her clothes were burning at that time. When she went to the house of the accused persons, she met both the accused persons and the accused-appellant was crying holding the hands of his wife/deceased. Thereafter, many people gathered in the house of the accused-appellant including some NGO persons and the injured was immediately brought to the hospital. However, later on, she heard that the deceased died in the hospital. She further deposed that she could not say as to how the fire caught on the body of the deceased and when she entered into the house of the accusedappellant, the gas stove was found in a burn condition.

¶157

34. From her cross-evidence, it is seen that she had a visiting terms with the accused persons and the relationship of the accused and the deceased was cordial. She further stated that at the time of occurrence, the right hand of the

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accused (Bharat Bora) was fractured due to some accident and the other accused (Khudmai Bora) was also in ailing condition at that time.

¶160

35. P.W.6 is also a neighbor and he also visited to the house of the accused hearing noise and came to know that the wife of the present accused-appellant died due to burning.

¶161

36. P.W.7 is also another neighbor and he also visited to the house of the accused-appellant at about 6.30 a.m. and noticed one ambulance in front of the house of the accused persons and saw that one person was carried out in the ambulance from the house of the accused. As he had no visiting terms with the accused persons, he came to know about the incident from one of his aunts who told that the wife of the accused- appellant got burn injuries on her face from the stove while she was preparing tea.

¶162

37. In his cross-evidence, he stated that he saw the accused accompanying the deceased in the ambulance.

¶163

38. P.W.8 is also a neighbor and he also heard about the expiry of the wife of the appellant. However, this witness was also declared hostile by the prosecution and he was confronted with the statement made by him before the I.O. under Section 161 Cr.P.C. In his cross-examination, he denied when suggested that he stated before the I.O. that he had strong suspicion that the accused-appellant and his mother were behind the murder of the deceased.

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39. P.W.9 is the Studio Operator who was called by police at JMCH for taking some photographs of the dead body and then he came to know that it is the dead body of one Bijoylakhi Bora. He also noticed some black marks in the neck and also found some portions of the hair of the deceased in burnt condition and as per the direction of the police, he took the photographs. This witness also exhibited the photographs as material Exhibit Nos. 1, 2, 3 & 4.

¶166

40. From his cross-evidence, it is seen that he has no personal knowledge about the occurrence. He also denied when suggested that he has not stated before the police that he saw some burn injuries on the body of the deceased and also noticed a black mark on the neck and also saw some portion of the hair of the deceased in burnt condition.

¶167

41. P.W.10 is a teacher of Junior College and at the relevant time of incident, he was working as Emergency Medical Technician of JVK EMRI Project based at Jorhat. As per his testimony, on the day of incident, at about 5-6 a.m., he received a phone call from 108 Call Centre informing that there was a burnt case at Pokamora which was at a distance of 4-5 kilometers from Rawriah Police Out Post and as per direction, they visited to the said place in order to bring the victim for treatment. The victim was a lady and they brought her initially to Mission Hospital Jorhat and thereafter she was brought to Jorhat Medical College & Hospital for treatment. This witness also exhibited his statement as Exhibit-6 and Exhibit-6(1) is his signature. He also deposed that he received a phone call from the accused-appellant and when he reached to the place of

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occurrence, he found the accused-appellant, who was the husband of the deceased.

¶170

42. In this cross-evidence, he stated that the accused- appellant also accompanied the injured in 108 ambulance and he is the person who informed JVK EMRI about the incident.

¶171

43. P.W.11 is the sister of the accused-appellant and the daughter of the coaccused (Khudmai Bora). She deposed that she got the information regarding the incident from her cousin Shri Raju Bora that the deceased got burn injuries while lighting the gas stove at their own house. When she reached to the house of her parents, the injured was already taken to the hospital and thereafter she also rushed to the hospital and she came to know that injured had already expired. She further deposed that when she reached to the house of her parents, she did not find her younger brother Bharat Bora (appellant) and later on, when police arrived, her mother Khudmai Bora (co-accused) produced certain articles which were seized by police. Her mother also put her signature on the Seizure List [Exhibit-3(3)].

¶172

44. In her cross-evidence, she stated that the relationship between her younger brother (appellant) and his wife (deceased) was very cordial and good and she also knew that on the day of incident, the deceased was supposed to join in another service. She also stated that whenever she visited to the house of her parents, she used to meet the deceased.

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45. PW-12 is the younger brother of the co-accused (Khudmai Bora) and the present appellant is his nephew. In his evidence, he deposed that on 14.08.2010, he was informed about the incident over telephone by his nephew, i.e. the present appellant, that his wife got fire from LPG gas stove. Getting the information, he informed the Officer-In-Charge, Dergaon Police Station and with the permission, he proceeded towards the residence of the accused-appellant in his motorcycle. But, before his arrival, the deceased was already taken to the Jorhat Civil Hospital for treatment and then he proceeded towards the Jorhat Civil Hospital wherein he found several person assembled in the Jorhat Hospital and he also found his nephew, i.e. the present appellant, and some of the relatives of the deceased, including her parents, brother, sisters etc. He stayed in the hospital till 9.00 a.m., but before he left the hospital the accusedappellant fled away from the hospital and though he enquired about the same with his another nephew- Rakesh Bora, but he could not intimate anything about appellant Bharat Bora. Thereafter he tried to contact him over his mobile phone, but it was found in switched off condition and in the afternoon, at about 3.00 p.m., when he was at Dergaon Police Station, the appellant contacted him over mobile phone wherein he instructed him to surrender before the police. He also deposed that he saw the dead body of the deceased with severe burn injuries on her face. Thereafter he met the informant, i.e. the father of the deceased, in the hospital and when the informant asked him about his view, this witness replied that he suspect foul play in the matter. He further deposed that the accused-appellant was absconded for about 3/4 months from the date of occurrence prior to his arrest.

¶175

46. In his cross-evidence, he stated that his elder sister (co-accused) asked

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some bride for her son Bharat Bora (appellant) which was communicated to the father of the deceased and thereafter only the marriage between the couple took place. However, he stated that since the date of marriage till the date of occurrence, he never heard about any cruel treatment or harassment on the deceased by the accused-appellant. He further stated that he did not make any enquiry or investigate on his own regarding the aforesaid incident and he also could not remember as to whether he stated before the I.O. that he suspected some foul play in the matter.

¶178

47. P.W.13 is a Government Gaonburha of Kuhiaparia Brahmin Gaon and Chaliha Gaon under Rawriah Police Out Post who also identified the accused person on the dock. He deposed that on 02.12.2010, he was asked by police of Jorhat Police Station to go to the resident of the accused-appellant and accordingly, he went there. He also came to know that the police already apprehended the accused Bharat Bora and during that period, the co-accused Khudmai Bora was already in custody. When he reached the house of the accused-appellant, the lock was opened and the site plan of the place was prepared by the police in his presence. He further deposed that the accusedappellant was also interrogated in his presence wherein it was stated by him that in the late night in between 13.08.2010 and 14.08.2010, his wife/ deceased had gone out for natural call and when she returned after attending her natural call, the accused wanted to had physical relationship with her and when she showed her reluctance and did not agree to the same, it led to some dispute/quarrel between them. Thereafter, both the appellant and his wife came to their bedroom and again quarrel took place on the same issue and then she went out of the bedroom and he found his wife lying on the ground near the

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gas stove which was in their kutcha kitchen.

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48. The prosecution accordingly declared the P.W.13 as hostile witness and cross-examined him wherein he was confronted with his statement made before the I.O. under Section 161 Cr.P.C. It is seen from his cross-evidence by the prosecution that he stated before the I.O. that the accused- Bharat Bora told him that he murdered his wife by strangulating her with the help of one sari which she was wearing at that time as she refused to have sexual relationship with him. He was also cross-examined by the defence wherein it is stated as “I was not alone when accused Bharat Bora made the aforesaid extra judicial confession, as stated by me during the cross-examination by prosecution.” Further, in his cross-examination, it is stated by him that “It is not a fact that Bharat Bora did not state before myself as well as before police that he had strangulated his wife with her chadar.” He further stated in his crossexamination that he cannot say as to whether the deceased expired as a result of burn injury which she suffered accidentally by the gas stove as he was not a witness.

¶182

49. This witness was also re-examined by the prosecution wherein he exhibited his statement made under Section 164 Cr.P.C. as Exhibit-13 and his signatures as Exhibits-13(1),(2),(3). In his further cross-examination, he stated that the police interrogated the accused in a room and at that time, he was standing in the veranda and hence, he cannot say what were the questions put to the accused by police. He also stated that he gave his statement as per instruction by police.

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50. P.W.15 is one of the I.O. who was In-Charge of Rawriah O.P. under Jorhat Police Station who received the F.I.R. from one Suresh Hazarika, which was accordingly registered as Jorhat P.S. Case No. 489/2010, under Sections 302/34, IPC and the investigation was also entrusted to him by Officer In-Charge, Jorhat Police Station. During investigation, he visited the place of occurrence, examined the witnesses, drew the sketch map and also seized the gas stove, one regulator and one cylinder from the house of the accused persons and accordingly prepared the seizure list in presence of witnesses. The inquest was also done by the In-Charge Jorhat Medical College & Hospital. But, at the time of preparation of the seizure list, the accused- appellant was not present. However, his mother was present in the house at the time of search and seizure and the accused-appellant was absconding. This witness accordingly exhibited the F.I.R., 2 Seizure Lists, Material Exhibits and Sketch Map as Exhibits-1, 3, 5, Material Exhibits- 1 to 4 and Exhibit-8.

¶185

51. He further deposed that the witness Raju Bora [P.W.3], who was declared as hostile by the prosecution, had stated before him while recoding his statement under Section 161 CrPC that both the accused persons used to abuse the victim and on 14.08.2010, at about 5.00 a.m., he also heard screams of Bharat’s wife stating that they killed her, they burn her. He further stated that the murder incident was pre-planned and hence, suspected that it was done by the accused persons. He also noticed a black mark like that of strangulating by a cloth in the victim’s neck. When he visited to the house of the accused Bharat Bora, the victim was lying on the floor and a small burner of the stove was burning at that time and the victim was lying at about 5-6 feet distance from the gas stove and there were some water found on the floor. The statement of

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the P.W.3 was also exhibited by this witness as Exhibit-3, which was recorded under Section 161 Code of Criminal Procedure, 1973. He further submitted and exhibited the statement of one Mahendra Nath Sarmah [P.W.8] as Exhibit-10, which was recorded under Section 161 Code of Criminal Procedure, 1973, who was declared as hostile by the prosecution. In his statement recorded under Section 161 Code of Criminal Procedure, 1973, he stated before the I.O. that he had strong suspicion that the accused-appellant and his mother is behind the murder of deceased and he also heard that the accused-appellant was absconding. He further deposed that the witness Pallab Gogoi gave statement before him in writing. Exhibit-6 is the relevant statement of said Pallab Gogoi in his own handwriting.

¶188

52. In his cross-evidence, he stated that he took up the investigation of the case on 14.08.2010 and he examined the witnesses, namely, Shri Raju Bora, Smt. Thanumai Bora, Shri Bijay Bora, Shri Arabinda Hazarika, Shri Mahendra nath Sarmah, Smt. Manju Saikia, Shri Rakesh Bora, Shri Suresh Hazarika, Shri Bhupen Dewri and Shri Pallab Gogoi. He denied when suggested that the informant did not disclose before him that he had suspicion about the death of his daughter. He further denied when suggested that he noticed injuries on the body of the deceased.

¶189

53. P.W.16 is a Circle Officer who performed the inquest over the dead body of the deceased and he exhibited his report as Exhibit-2. His report speak as“though death is reported to be due to burning, but in view of partial burning in the upper part only and no burning of clothes as such, death might be due to other factors also. As reported, the relation between the husband and wife is not good. Moreover, the relation with in-laws is also not good. So death might

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be influenced by other factors also.”

¶192

54. However, he stated in his cross-evidence that his opinion is not conclusive and the cause of death was not ascertained by him and for which, he also advised for Post-Mortem Examination.

¶193

55. P.W.17 is also one of the neighbors and he deposed that on 02.12.2010, police arrived at the house of the accused along with the accused Bharat Bora. He was called by the Gaonburha to come to the house of the accused and came to know that for the death of the wife of the accused, he was arrested.

¶194

56. However, this witness was also declared hostile by the prosecution and cross-examined to that effect. In his cross-examination by the prosecution, it is seen that he stated before the I.O. that the accused-appellant stated before him that he murdered his wife by strangulating her with the help of wearing cloths after a dispute on the night of occurrence as the deceased did not allow him to have sexual intercourse with him. He was also further cross-examined by the defence, wherein it is stated that the accused did not confessed anything before him. However, it is a fact that the police read over the statement of the accused and then, he put his signature where the Gaonburha was also present along with him. On re-examination of P.W.17, he exhibited his statement made under Section 164 CrPC as Exhibit-14 and Exhibits- 14(1) to 14(3) are his signatures. In his re-cross, he stated that he give his statement as per the direction of the police.

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57. P.W.18 appeared on receipt of summon to depose on behalf of the deceased I.O. Binod Chetia and he stated that he is fully acquainted with the handwriting and signature of the deceased I.O. Binod Chetia. He further deposed that the deceased I.O. examined witnesses, namely, Shri Rabin Kalita, Shri Mahendra Nath Sarmah and Shri Shyamanta Baruah and also recorded the statement of accused Bharat Bora wherein he confessed his guilt before the I.O. He exhibited the statement of the accused as Exhibit-11, which was recorded by the deceased I.O. Bonod Chetia [under objection].

¶197

58. In his cross-examination, he stated that the deceased I.O. Binod Chetia took up the investigation only from 07.09.2010 till 02.12.2010 and he filed the charge-sheet against the accused persons. He did not seized any articles and only examined three witnesses.

¶198

59. P.W.19 is the Officer In-Charge, Moirabari Police Station. As per him, at the relevant time of incident, he was serving at Jorhat Police Station and the deceased I.O. Binod Chetia was serving as S.I. of Police. This witness also appeared receiving summons from the Court and also fully acquainted with the handwriting and signature of deceased I.O. Binod Chetia. He also exhibited the statement of the accused Bharat Bora as Exhibit- 11 and Exhibit-11(1) is the signature of said deceased I.O. Binod Chetia. He further deposed that the statement of Shri Shyamanta Kumar Baruah, Shri Rabin Kalita and Shri Mahendra Nath Sarmah were recorded by the deceased I.O. Binod Chetia. This witness accordingly exhibited the statement of Shri Shyamanta Kumar Baruah [P.W.13], wherein he stated before the I.O. that on enquiry to accused Bharat

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Bora, he came to know that he had murdered his wife by strangulating her when his wife refused to have physical relationship with him on the night of incident. He further deposed that the said witness also stated in his statement recorded under Section 161 CrPC that he strangulated his wife with the help of a sari which she was wearing and thereafter pushed his wife to the gas stove which was burning at that time. After the said incident, he shouted for help and nearby people came to the place of occurrence and his wife was taken to hospital.

¶201

60. He also exhibited the statement of the witness Rabin Kalita [P.W.17] who also stated before the I.O. that he was called by Gaonburha and he accordingly came to the house of the accused persons where the accused was present along with the police and on being asked, the accused stated that he had murdered his wife and the police accordingly drawn the sketch map with the index as told by the accused. He further made the statement that the accused stated before him that on the relevant night, he along with his wife came to attend the natural call and thereafter he wanted to have sex with his wife and accidently her hand fell down on his ear to which he felt pain and at that time, in the fit of anger, he strangulated his wife with the help of her wearing sari.

¶202

61. In his cross-examination, he stated that on 03.01.2010, at about 2.30 p.m., the accused gave his statement before the police leading to discovery. At the place of occurrence, the I.O. did not record the statement of accused Bharat Bora. He denied when suggested that the accused did not give his statement voluntary and it was given only under threat and pressure.

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62. So, from the discussion of the prosecution witnesses, as above, it is seen that the P.W.3- Raju Bora, P.W.8- Mahendra Nath Sarmah, P.W.13- Shyamanta Kumar Baruah & P.W.17- Rabin Kalita were declared hostile by the prosecution. But their statements recorded under Section 161 CrPC were exhibited through Investigating Officer and their statements recorded under Section 164 CrPC were also exhibited by the prosecution.

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63. Thus, it is seen that P.W.1, the informant/father of the deceased; P.W.2, one of the neighbor; P.W.9, the photographer who took the photographs of the dead body; & P.W.16 are the vital witnesses of the prosecution who noticed the black mark on the neck of the deceased and accordingly it is their opinion that there was some foul play in the death of the deceased and as per these witnesses, for the such kind of superficial injuries on the face of the deceased, she cannot die. More so, it was also observed by these witnesses that the tongue of the deceased was also slightly protruded. The observation of these witnesses in regards to the injuries sustained by the deceased completely corroborates the medical evidence of doctor [P.W.14], wherein the doctor had opined that the death is due to asphyxia as a result of strangulation. In the cross-evidence of the doctor, he also denied the probability of hanging as there was no fracture on the part of the cervical spine.

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64. From the evidence of P.W.1, i.e. the informant, it is also seen that his daughter was in normal condition and she had a telephonic talk with him regarding her joining report as she got a new assignment and was supposed to

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join on the day of incident. Thus, there cannot be any such reason for committing of suicide by the deceased on the day of incident in the early morning at about 5.00 a.m. to 5.30 a.m. Further, from the evidences of some of the witnesses, it is seen that the relationship between the deceased and the accused-appellant was good and the deceased also used to visit to the house of her parents occasionally and except one incident of 09.08.2010, which she reported her father about the ill treatment of the accused-appellant and the coaccused, there is no other mention of any incident described by any of the witnesses.

¶209

65. The prosecution exhibited the statements of the hostile witnesses made under Section 161 Cr.P.C. through P.W.15, P.W.18 and P.W.19. From the statement of those hostile witnesses, it is seen that they were present when the accused-appellant was brought to his house wherein he made his confessional statement that he had murdered his wife by strangulating her with the help of sari which she was wearing. From the statement of those hostile witnesses, it is also seen that the accused and the deceased had a quarrel/dispute when the deceased refused to have any physical relationship or sex with the accusedappellant on the night of incident and for her refusal only, out of heat of moment, the accused strangulated his wife and then he pushed her body near to the gas stove.

¶210

66. Further, the statement of the accused was also exhibited as Exhibit 11 by the prosecution and from the cross-evidence of P.W.13, it is also seen that he admitted that he was not alone when the accused made extra-judicial

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confession as stated by him during the cross-examination by the prosecution. More so, he also admitted that he stated before the police that the accused Bharat Bora told before the police that he had strangulated his wife with a chadar. This witness was also re-examined by the prosecution wherein he also exhibited his statement made under Section 164 CrPC as Exhibit 13 and his signatures accordingly. While exhibiting his statement made under Section 164 CrPC, there was no denial from the defence that he did not made any statement before the Magistrate under Section 164 CrPC.

¶213

67. Further, the P.W.17, another hostile witness, was also re-examined by the prosecution to exhibit his statement made under Section 164 CrPC, which he accordingly exhibited as Exhibit 14 and his signatures as Exhibits 14(1)(2)(3). However, this witness took the plea at the time of cross-examination that he gave his statement only as per the dictation of the police.

¶214

68. It is a settled law that the confession made by any accused before police has no evidentiary value in the eye of law and it cannot be accepted as evidence. But, from the statement made by these hostile witnesses before the I.O. as well as while recording their statements under Section 164 CrPC, it is seen that they implicated the accused in committing the murder of the deceased.

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69. It is an admitted fact that on the day of incident, the deceased, her husband (present appellant) and the mother of the appellant, Khudmai Bora, were present and no other person was present on the relevant day of incident.

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¶217

As discussed above, the evidences of vital witnesses of the prosecution, i.e. P.W.1, P.W.2, P.W.9, & P.W.16, to the extent that they observed the injuries sustained by the deceased on her neck with superficial burn injuries, completely corroborates the description of the injury sustained by the deceased as per the Post-Mortem Report as well as from the evidence of the doctor [P.W.14]. Thus, from the medical evidence of the doctor as well as the other corroborating evidence of the P.Ws., admittedly, the victim did not die out of superficial burn injury on her face, but died only due to strangulation and the doctor also ruled out the possibility of hanging, as stated above. More so, as per the doctor, the burn injury was post-mortem in nature and the injury sustained by the deceased on her neck, i.e. the strangulation, is anti-mortem in nature.

¶218

70. It is the admitted position that the deceased died in the house of the appellant in a suspicious condition when they stayed together and no proper explanation has been made by the present accused-appellant while recording his statement under Section 313 CrPC and he only took the plea of denial. More so, he also did not adduce any evidence to substantiate his plea of innocence. He simply took the plea that the deceased sustained burn injury while boiling water on the gas stove for preparation of tea. Apart from that there is no such specific plea or explanation made by the accused-appellant. Thus, it is an admitted position that there is no plausible explanation in the statement of accused-appellant recorded under 313 CrPC and in that context, the judgment of Hon’ble Supreme Court passed in Balvir Singh (supra), as relied by the learned Additional Public Prosecutor, is found to be applicable in the instant case.

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¶220

71. The learned defence counsel, Mr. Mahajan, emphasized on the fact that in spite of the similar or identical evidence against the 2 (two) accused persons, the learned Sessions Judge convicted only the accused-appellant and acquitted the co-accused and in that context, he also relied on a decision of Hon’ble Supreme Court passed in Ram Singh (supra), as discussed above. But, here in the instant case, from the circumstances of this case, it is seen that the incident had happened in the morning at about 5.00/5.30 a.m. when the mother of the accused-appellant was in another room and the dispute was only between the accused-appellant and his deceased wife. This observation has already been made by the learned Sessions Judge while passing the judgment and order as it is seen that there was no cleansing or convincing evidence on record to show that the co-accused- Khudmai Bora is also involved in the commission of the murder of the deceased along with the present accused-appellant.

¶221

72. It is a fact that there may be many factors or out of fear a person may be absconded and on the basis of said ground, he cannot be held guilty for such offence and in that context, Mr. Mahajan, learned counsel for the appellant, had already relied on a decision of Hon’ble Supreme Court passed in the case of Sujit Biswas (supra). But, in the instant case, it is seen that there was no such circumstances for the present accused-appellant to abscond from the hospital itself after arrival of his father-in-law/informant. It is also a fact that the accused took the initiative to bring the victim to the hospital and his presence in the hospital is also not disputed or denied by the prosecution. But the question arises as to what make him bound to flee away from the hospital after arrival of the informant and other relatives. More so, he was found to be absconded for 3/4 months after the date of incident and thereafter only he could be

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apprehended by police. From the evidence of the prosecution witnesses, it is seen that he was not questioned by anyone in his house or at the hospital or charged him alleging the commission of murder of his wife. But, after admitting the deceased in the hospital, he remained there for some time and thereafter he fled away from the hospital. In his statement recorded under Section 313 CrPC, he made an explanation that the police asked him to stay away from the hospital as many people tried to assault him and for that reason also, he did not attend the cremation of his wife. But, the question arises also as to why the people tried to assault him if he has not committed any such offence or his wife died accidentally with the burn injury she sustained from the gas stove.

¶224

73. The learned defence counsel, Mr. Mahajan, also raised the issue that there was no strain relationship between the accused-appellant and his deceased wife and the relationship between them was good and cordial, which is also stated by the witnesses. It is a fact that as per the evidences of the most of the witnesses, the relationship between the accused-appellant and his deceased wife was cordial and they have not heard about any such quarrel between them. The informant only brought one allegation in his evidence that prior to the lodging of the F.I.R., his daughter made a complaint about the assault and abusing her by her mother-in-law. But that apart, there is no such evidence to show that there was any strain relationship between the accused-appellant and the deceased. But, that cannot be the only ground for acquittal of the appellant when the other circumstances of the case supports the prosecution version.

¶225

74. It is well settled proposition of law that in cases where the evidence is of

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circumstantial nature, the circumstance from which the conclusion of guilt is to be drawn are required to be established by reliable and credible evidence so as to exclude any hypothesis consistent with the innocence of the accused. The Hon’ble Supreme Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, reported in (1984) 4 SCC 116 , has referred five principles for proving a case based on circumstantial evidence, in the following manner:-

¶228

”152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. The State of Madhya Pradesh.(1) This case has been uniformly followed and applied by this Court in a large number of later decisions uptodate, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh(2) and Ramgopal v. Stat of Maharashtra(3). It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (supra):

¶229

It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established 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 they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground far a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.

¶230

A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

¶231

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

¶232

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(') where the following observations were made:

¶233

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

¶234

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty,

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(3) the circumstances should be of a conclusive nature and tendency.

¶237

(4) they should exclude every possible hypothesis except the one to be proved, and

¶238

(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.

¶239

These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.

¶240

75. It is an admitted fact that there is no eye witness to the incident and the prosecution case is based on circumstantial evidence and the learned Session Judge, while passing the judgment and order, also recorded the circumstances which appears in the evidence on record against the present accused-appellant. So, it is to be seen that whether the circumstances presented by the prosecution are sufficient to conclude with all human probability that the act of murder was committed by the accused-appellant. Moreover, all the circumstances should be complete and there should be no gap left in the chain of circumstances. Further the circumstances must be consistent only with the hypothesis of the guilt of the accused and totally in consistent with his innocence.

¶241

76. Thus, the circumstances as per the prosecution can be concluded as under:

¶242

(i) That, it is undisputed fact that the accused-appellant, Bharat Bora resided with his deceased wife along with the co-accused, Khudmai Bora at the time of incident.

¶243

(ii) That, from the statement of the hostile witnesses recorded under

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Section 161 CrPC, which was duly exhibited and confronted by the prosecution, on the day of incident, a quarrel took place between the accused-appellant and deceased when his deceased wife refused to have sex with him after attending their natural call and then, out of anger the accused strangulated his wife with the help of a sari which she was wearing at the relevant time of incident and thereafter she was pushed near to the gas stove.

¶246

(iii) That, from the evidence of the doctor as well as the Post-Mortem Report, the deceased died due to strangulation and the superficial burn injuries as sustained by the deceased was also Post-Mortem in nature. In the same time, the doctor also overruled the possibility of any suicidal hanging from the injury sustained by the deceased.

¶247

(iv) That, from the testimonies of the witnesses, some of the witnesses, i.e. P.Ws. 3, 4 & 5, immediately rushed to the house of the accused-appellant hearing screaming of the deceased and saw that the deceased lying on the ground with burn injuries. Thus, the place of incident is also undisputed and it is an admitted fact that the incident took place in the early morning hours at around 5.00 a.m. to 5.30 a.m.

¶248

(v) That, from the evidence of the prosecution witnesses, including the informant [P.W.1], as discussed above, he also noticed a black injury mark on the neck of the deceased along with some superficial burn injury on her face and the informant as well as the vital witness, i.e. P.Ws.1, 2, 9 & 16, had also stated that the tongue of the deceased was protruded a

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little and there was some burn injury on her forehead and the vermillion was found intact and the entire face was normal except some superficial burn injury on her chest.

¶251

(vi) That, there was no possibility of any 3^rd person committing the murder of the deceased as only the accused persons were present at the time of incident which took place in the early morning at about 5.00 a.m. to 5.30 a.m. There is no such gap between the point of time when the accused-appellant and the deceased were last seen together, rather they were staying together and when the deceased was found dead. Moreover, the defence also did not bring the possibility of committing the murder by any 3^rd person as it is the case of the defence that in the morning at about 5.00 a.m., the deceased was boiling water on the gas stove where accidentally fire caught on her body and she sustained severe burn injury.

¶252

(vii) That, there is no proper explanation made by the appellant in regards to death of the deceased and in the same time, he also made no proper explanation as to why he absconded for 2/3 months after the date of incident.

¶253

77. Based on the foregoing discussions, it is evident that the prosecution has successfully established through circumstantial evidence that the accusedappellant had committed the murder of his wife by strangulating her and pushed her near to the gas stove and burnt some part of the body of the deceased after her death only to create a scene that the deceased died due to burn injury she sustained while preparing tea.

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78. In view of the entire discussions made above, we are of the view that the prosecution has been able to establish the case against the present accusedappellant beyond all reasonable doubt and hence, we find that the learned Sessions Judge has committed no error or mistake while convicting the accusedappellant under Section 302 of the Indian Penal Code and therefore, we do not find any reason to make any interference in the Judgment and Order dated 03.11.2017, passed by the Court of learned Sessions Judge, Jorhat in Sessions Case no. 18 [J-J] of 2011, under Section 302 of the Indian Penal Code, and accordingly the same stands upheld. Consequently, the appeal stands dismissed.

¶256

79. In terms of above, this criminal appeal stands disposed of.

¶257

80. Send back the case record of the Trial Court along with a copy of this judgment and order.

¶258

JUDGE JUDGE

¶259

Comparing Assistant

Shri Bharat Bora v. State of Assam

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Shri Bharat Bora v. State of Assam

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