JUDGMENT
P.K. Musahary, J.
1. The prosecution story is based on an FIR dated 14-1-1999, lodged by one Samaru Baraik informing the Officer-in-charge, Mariani P.S. that his coworker, accused Sibu Nayak of Punjabari Tea Estate killed his wife, Smti. Malati Nayak at about 3 a.m. of 14-1-1999 in his own house by dashing her head against the pucca wall. A case, was registered under Section 302, IPC and investigated into leading to filing of charge sheet against the accused. On committal the learned Sessions Judge, Jorhat took up the matter for trial. A charge under Section 302, IPC was framed against the accused and on being explained, he pleaded not guilty and claimed to stand trial.
2. The prosecution examined, in all, 8 witnesses including the informant as well as the Investigating Officer to prove its case but the accused adduced no evidence in his defence. There was no eye-witness to the occurrence and as such the prosecution had to depend on the circumstantial evidence to prove its case.
3. P.W. 1, informant and a tea garden line chowkidar deposed that he came to know about the incident when he was first informed by one Bimal Das who came to his house and informed about it. He, along with Bimal Das, went to the residence of Sibu Nayak and saw his wife lying on the ground covered with a piece of cloth. He then informed the Secretary of the tea garden and came back along with him to the house of Sibu Nayak. They found Sibu’s wife dead. Then he lodged the Ejahar, but did not know who wrote it for him. In cross-examination he stated that when he came with Bimal Das to Sibu’s house, there was none but the accused Sibu himself. He did not know if Sibu’s wife had been mentally disturbed. No suggestion was put by the defence that the accused was not present alone near the dead body of his wife.
4. P.W. 2, Dilbar Tanti alias Guala, a tea garden Sardar deposed that he was informed by Bimal Das and Samaru Boraik (P.W. 1) that the accused husband and his deceased wife quarrelled and the wife died in the morning. He also came to the house of Sibu along with Samaru, Bimal Das and Jaban Karmakar and found Malati’s dead body lying covered with a piece of cloth on the floor inside his house. Upon removal of the cloth he saw the nose bleeding the forehead swollen and blacken and the neck also swollen. He also saw two places of pucca wall stained with blood and the accused was sitting nearby the dead body with his head down and hands over his head. On enquiry the accused told them that his wife died due to some illness. In the meantime the Police Daroga came and held the inquest over the dead body. On being interrogated, he told the Police that Malati’s nose had been bleeding, forehead had been swollen and the wall of the house bore the marks of blood.
5. P.W. 3, Sri Joko Tanti, another tea garden Sardar, stated in his deposition that the occurrence took place on the day of Assamese festival Magh Bihu. He visited the house of Sibu Nayak, where he found gathering of people and also the garden Secretary in the courtyard. He found accused Sibu Nayak sitting near the dead body of his wife covered by a piece of cloth. When the Secretary removed the cover from the dead body, he saw an abrasion and bleeding on the forehead and swollen neck. He also saw some blood which was bleeding out from the nostril. He further stated that he was present when the Police visited the place of occurrence and held the inquest on the dead body. He was interrogated by the Police and put his signature on the inquest report.
6. From the evidence of P.W. 1, P.W. 2 and P.W. 3, it has been proved that the occurrence took place in the residence of accused Sibu Nayak and the dead body was found thereat. It was also proved that the accused was present sitting near the dead body but he himself did not inform anybody about the incident and the FIR was lodged by P.W. 1.
7. P-W. 6, Dr. A.K. Barua, who held the autopsy on the dead body of the deceased, Malati Nayak, deposed that, in his opinion, the cause of death was due to shock and coma, as a result of the head injury sustained by the deceased. He described the injuries as follows:
1) Bruish and haematoma on the forehead of both left side and right side. Left side measuring 1″ × 1″ and right side measuring 1″ × ½”.
2) Black eye (left).
3) Haematoma on right side parietal region measuring 1½ × ½”.
4) Slight abrasion on nose lip measuring ¼ × ½.
5) Abrasion in left side elbow measuring ½” x ¼”.
8. The defence declined to cross-examine this witness. The prosecution has been able to prove that there are injuries, including head injury, on the body of the deceased and she died due to head injury sustained by her. This position was accepted by the defence as they declined to cross-examine the said doctor.
9. P.W. 8, Md. Khairul Islam, the Investigating Officer, stated that he visited the place of occurrence in the course of investigation and examined the witnesses. He found the dead body of Malati Nayak lying inside her house and held inquest on the dead body. He sent the dead body to the Civil Hospital for conducting autopsy and also drew sketch map of the place of occurrence in presence of the witnesses. He searched for the accused but found no trace of him. He arrested the accused when he surrendered himself in the evening of the next day. The defence, in cross-examination, put only one question to the Investigating Officer to which he replied:
It is not true that I had not conducted the investigation as per rules.
10. The learned trial Court put two pertinent questions to the Investigating Officer, P.W. 8. First, whether he could see any marks of blood etc. in the walls of the house. He replied that he saw marks of blood in the pucca wall in the house of the accused but he does not remember now in which he saw those marks. Second, whether he could, from records, tell the number of family members of the accused. He replied that the family of the accused consists of his wife, mother and a child.
11. The prosecution has been able to prove the fact that the deceased was dashed by her forehead against the pucca wall of the house where the accused was living in. No attempt was made by the defence to demolish this piece of evidence in cross-examination of the prosecution witnesses. The injuries described in the post-mortem report. Exhibit-11, as well as the deposition of P.W. 6, particularly, injuries No. 1 and 3, fit well in the nature of physical assault meted on the deceased i.e. dashing of her torehead against the pucca wall. The accused unfortunately did not even bother to have a close look at the injuries on the person of his deceased wife. To a question put by the Court under Section 313, Cr.P.C. regarding the injuries, he casually said that he saw the injuries but did not notice where those were.
12. Having proved that the occurrence took place in their own house, the deceased was killed by dashing her forehead against the wall supported by medical report and evidence of doctor, the wall of the house bore the marks of blood and the accused was sitting near the dead body of his wife, the learned trial Court was required to reach the culprit through the incriminating circumstances. It has been done so and held the accused guilty of killing his own wife. Sitting in appeal, we are in turn now required to find out the incriminating circumstances from the evidence on record as to whether the accused husband is the perpetrator, for the sake of principle that no innocent man is punished and at the same time no guilty man can escape. Incriminating circumstances have been focused by the learned trial Court in Paras 32, 33 and 34 of its judgment which may be reproduced hereunder:
32. The discussion, so made, has pronounced much too loud and clear that on the night, the 13th January, 1999, at about 3 a.m. Malati Nayak, the wife of the accused, met her violent death and that too inside her house. That she met her death following her head being crushed being hit repeatedly and violently against the concrete wall of her house has also been found abundantly clear from our foregoing discussion. Now the moot question is who killed her.
33. Before being found an answer to this query, let me recast the facts and circumstances which come to the force, quite forcefully following the evidence being tendered by the P.Ws. during the trial of this case. They are (i) Malati Nayak, since deceased, was a woman of average built and she enjoyed normal health till she breathed her last on the night on 13th January, 1999, (ii) The accused with his family members were the only occupants of his house and no outsider did visit his house that night, (iii) Malati Nayak died an extremely violent death on the night in question, her head and face being crushed quite badly, (iv) The inner wall of the house of the accused person bore blood marks at place.
34. Some other circumstances, of course, no less in importance than the circumstances, being described in the paragraph before, are (i) despite the wife of the accused died as early as 3 a.m. on the night of 13th January, 1999 and in spite of her meeting a brutal death, the accused did not inform of it to his neighbours till the day break, (ii) The accused, who was at his residence till next morning, fled home soon thereafter, however, only to re-emerge in the Police Station next day in the afternoon.
13. The aforesaid circumstances have cumulatively formed a complete chain and they are unerringly pointing towards the guilt of the accused. From the said circumstances there is no difficulty to arrive at a conclusion that within all human probability the crime was committed by the accused and the accused alone. His conduct in not making any hue and cry after discovering his wife dead inside the house, not informing the neighbour, his disappearance from the scene and, of course, surrendering himself before the police, is so unusual from which interference may be drawn that the accused was guilty. He has made no explanation for such unnatural conduct. The only explanation the accused tried to offer is found in his statement/answer to question No. 30 under Section 313, Cr.P.C. which may be quoted below:
30Q:–What would you like to say in your defence?
Ans:–I did not kill my wife. On the day of occurrence, I was not present in my house. That night, it being ‘Bihu’ festival, I was attending a feast with my friends and upon returning home in the morning I found my wife lying dead in the house. She had injuries in her person.
My wife was suffering from ‘Epilepsy’, She fell to the ground from standing several times and sustained injuries. I think that night also she might have had epileptic fit for which she might have fallen heavily, causing injuries on her person resulting her death.
I did not commit any offence. I am innocent. I have no any defence witness to cite. I have this much to say.
14. Epilepsy is commonly known as a disorder of the nervous system that causes a person to become unconscious suddenly. Dr. Bernard Knight in his book entitled “Medical Jurisprudence Toxicology” (6th Edition), described epilepsy as a disorder of brain in which the pathology remain confined exclusively to the motor kortex and the manifestation of the disease is characterized in the form of epileptic fits. If the version of the accused is taken as true that the deceased was attacked by epilepsy, she should have fallen down due to sudden loss of consciousness and there was no chance for her to stand up again and dash her forehead repeatedly against the pucca wall. The injury on her forehead and the marks of blood on the wall belie the explanation of the accused. The accused by offering false explanation has proved himself consistent with the guilt and inconsistent with his innocence. Moreover the burden lies on the accused to prove his deceased wife had a history of epilepsy by adducing sufficient medical evidence. The accused has not even adduced his mother to prove the fact that his wife fell down due to sudden attack by epilepsy on the day of occurrence as a result of which she received severe injuries arid died in her own residence while the accused was not present at the relevant time.
15. The incident, admittedly, took place inside the private house in the night time and there is no evidence on record that any outsider broke open the house and caused murder of the deceased and as such it was not possible on the part of the prosecution to adduce any eye-witness to prove the case. The prosecution has proved its case beyond reasonable doubt on the basis of the attending circumstances mentioned above to which the accused has no answer and adduced no evidence to his defence.
16. The Apex Court in a number of cases has laid down the principle for convicting an accused in a case based on circumstantial evidence. We would like to refer to the case of Trimukh Maroti Kirkon v. State of Maharashtra as as an appropriate case, in which the crime was committed inside the house secretly and no eye witness was available. Para 12 of the said case may be quoted gainfully:
12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability of crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence.
17. The circumstances found in the present appeal, fit in the principles laid down by the Hon’ble Supreme Court in the case of conviction rested on circumstantial evidence. The aforesaid circumstances, in our opinion, have rightly been accepted by the learned trial Court leading to proof of guilt of the accused appellant. We have no hesitation to uphold and confirm the impugned judgment and Order dated 29-11-2001, passed by learned trial Court in Sessions Case No. 57(JJ)/1999 convicting and sentencing the appellant and accordingly we do uphold and confirm the same. Appeal stands dismissed.
18. Before we part with the records, we must put in some words of appreciation for Mr. M.R. Patliak, learned Counsel, who appeared as Amicus Curiae and rendered legal assistance in a desired manner for which he deserves remuneration from the Govt., of Assam, which we quantify at Rs. 3,000/-. Send down the records.
