NATHU MUNDA vs STATE OF ASSAM CRLA 108/17 04/03/20 

BEFORE ( DOUBLE BENCH)
HON’BLE MR. JUSTICE SUMAN SHYAM
HON’BLE MR. JUSTICE HITESH KUMAR SARMA 

[ GAUHATI HIGH COURT ]

• Section 302 IPC Evidence Act Section 106 Murder Burden of proving Accused and deceased usually stayed together in the house do not necessarily mean that on the date as well at the time of occurrence also, they were together Prosecution has not been able to discharge its initial burden of proving the case as none of the witness has implicated the accused-appellant except the fact that the accused was in his house on the date of occurrence and the deceased usually resided with him there in that house But, there is no evidence to establish that at the time of occurrence, the deceased was with the accused in his house Not find the conviction of the accused is based on evidence on record. Therefore, he deserves acquittal on benefit of doubt.

 

Relevant Paras 

12) The evidence of PW3 & PW4 has no bearing on the decision of this case as none of them has indicated in their evidence as to the source of their information that the accused- appellant had assaulted the deceased. Therefore, their evidence remains hearsay having no evidentiary value.
13) PW5, Dr. Debarshee, is the autopsy doctor. On 15.07.2016, she had performed the postmortem examination on the dead body of the deceased Somari and found as follows.
External Appearance: A female dead body of average built and swarthy complexion with eyes closed and mouth partially opened. Wearing a red colour blouse and brown petticoat. Swelling of the left perioribital area is present. The rigor mortis is found to be present all over the body and the body was cold to touch externally and warm internally.
Injuries:-
1. A contusion of size 3 cm x 2 cm is present in the 6th intercoastal space in the mid axillary line on the right side of the chest;
2. A contusion of size 16 cm x 14 cm is present over anterolateral aspect of left arm along with swelling;
3. The left ear lobule is found to be lacerated at places. The margins of the wound are found to be contused and irregular;
4. Sternum is found fractured in its upper one third;
5. 2nd, 3rd, 4th, 5th and 6th ribs are found fractured in the mid clavicular
in the right chest;
6. 2nd, 3rd, 4th and 5th ribs are found fractured in the mid calvicular line on the left side of chest.
On examination of cranium and spinal canal: Scalp healthy. Left temporalies muscle found
contused at places. Skull and vertebrae are healthy. Membrane and brain are pale. Spinal cord not examined.

On examination of the abdomen: The superior surface of the liver is found lacerated and the size of the laceration is 6.5 cm x 1 cm x liver parenchyma deep. Spleen was healthy. Kidneys are pale. The bladder mucosa was pale and the bladder cavity was empty. The walls were healthy and on dissection, the abdominal cavity was found to contain 1200 ml liquid and clotted blood. Peritoneum was pale. Mouth, pharynx and oesophagus, mucosa was pale in stomach. Mucosa was pale and the stomach cavity was empty and small intestine, mucosa was pale and contents glue like contents. Large intestine, mucosa was pale and contained gaseous and fecal matters.
Thorax:- Walls as described. Ribs and carrilaged as descried. On dissection, the chest cavity was found to contain 400 ml liquid and clotted blood.
Pleurae:- Pleurae were pale and lacerated on the right side at places. Larynx and trachea: mucosa were pale. Right lung was found lacerated and contused at places. Left lung was contused at places. Pericardium was contused at places. Heart was healthy and chambers were found empty. Thorasic vessels were found healthy. Organs of generation externally healthy and internally uterus was empty and healthy. Others were found healthy.

The opinion of the doctor is follows:
Death was due to hemorrhagic shock as a result of the injuries sustained over abdomen and chest as described. All the injuries described were ante mortem and caused by blunt force impact. Approximate time since death 6-12 hours.
14) The evidence of PW6, the investigating officer, is that on 15.07.2016 he had received the FIR from PW1 and thereafter he had investigated into the case. He prepared the sketch- map of the place of occurrence vide Ext. 5. He also caused the inquest of the dead body done by one Executive Magistrate, namely, A. Baruah. He also visited the place of occurrence and sent the dead body of the deceased for postmortem examination. He also found the accused persons at the place of occurrence and arrested him. He recorded the statement of the accused-appellant and after completion of the investigation filed the charge-sheet. He has confirmed in his evidence that the PW2 had made a statement before him that the accused-appellant had told him that on the last night he had given a slap on the body of the deceased following which she fell down.
15) The evidence of the autopsy doctor (PW5) and her opinion show that the deceased had died due to the hemorrhagic shock as a result of the injuries sustained over abdomen and chest and the injuries were ante mortem in nature. There is no evidence adduced by any of the witnesses that the accused-appellant had assaulted the injured on any part of her body except on ear. From the judgment of the learned trial court, it appears that the conviction of the accused-appellant is based on circumstantial evidence as indicated in paragraph-22 of the impugned judgment. The circumstances, as pointed out by the learned trial court, are,

i) Last seen together theory,
ii) Recovery of the dead body of the deceased Somari from the accused person’s house; and
iii) Severe injuries detected on the body.
16) That apart, the learned trial court has also held that since the dead body was found in the house of the accused-appellant and as the accused-appellant and his deceased wife were the only occupants of the house, the accused-appellant is required to furnish an explanation as to under what circumstances the deceased had died.
17) We have already found that the evidence of none of the witnesses has implicated the accused-appellant with the commission of the alleged offence except speaking in unison that the dead body of the deceased was found lying in the house of the accused-appellant.

20) In this case, we have noticed that the circumstances of last seen together theory has not been proved by the prosecution. There is an explanation given in his statement under Section 313 Cr.PC by the accused-appellant that his wife/deceased left the house in the night with his permission. Section 106 Indian Evidence Act does not shift the burden of proof in a criminal trial, which is always upon the prosecution. From the evidence discussed above, we have already found that the prosecution has not been able to discharge its initial burden of proving the case as none of the witness has implicated the accused-appellant except the fact that the accused-appellant was in his house on the date of occurrence and the deceased usually resided with him there in that house. But, there is no evidence to establish that at the  time of occurrence, the deceased was with the accused-appellant in his house. Such fact has to be read in combination with the explanation of the appellant given in his statement under Section 313 Cr.PC. The accused-appellant had stated in his statement that he did not know as to at what time the deceased had come back home after she left the house with his permission. Apart from that, to base conviction on circumstantial evidence there has to be a consistent chain of circumstantial pointing unerringly to the guilt of the accused. But, here in this case we have not found any circumstance, except the evidence thattheaccusedappellantandthedeceasedusuallystayedtogetherintheirhouse. Forthis circumstance only, in spite of failure on the part of the prosecution to discharge its initial burden to prove the case, we are unable to persuade ourselves to hold the accused- appellant guilty of commission of murder of the deceased taking refuge of the provisions of Section 106 of the Indian Evidence Act.

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