w w w . L a w y e r S e r v i c e s . i n



Md Mustaque Ahmed Laskar v/s State of Assam & Another


Company & Directors' Information:- AHMED AND CO PRIVATE LIMITED [Strike Off] CIN = U27320DL1997PTC086861

Company & Directors' Information:- MD INDIA PRIVATE LIMITED [Active] CIN = U74999DL2016PTC306314

Company & Directors' Information:- MD R INDIA PRIVATE LIMITED [Strike Off] CIN = U72400DL1999PTC097812

Company & Directors' Information:- T AHMED & CO PVT LTD [Strike Off] CIN = U51900WB1947PTC014930

Company & Directors' Information:- M S AHMED & CO PVT LTD [Active] CIN = U70101WB1932PTC007608

Company & Directors' Information:- J. AHMED AND COMPANY LIMITED [Liquidated] CIN = U99999MH1954PLC009225

    Criminal Appeal No. 5 of 2016

    Decided On, 25 November 2019

    At, High Court of Gauhati

    By, THE HONOURABLE MR. JUSTICE MIR ALFAZ ALI & THE HONOURABLE MR. JUSTICE MANISH CHOUDHURY

    For the Appearing Parties: A. Choudhury, H. Sharma, Advocates.



Judgment Text

1. This is an appeal under Section 374 of the Code of Criminal Procedure, 1973 (CrPC, in short), directed against the judgment and order dated 13.11.2015 passed by the Court of learned Additional Sessions Judge (FTC), Cachar, Silchar in Sessions Case No. 89/2014. By the said judgment and order dated 13.11.2015, the accused-appellant herein has been convicted under Section 302, Indian Penal Code (IPC) and he has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/-, in default of payment of fine, to undergo further rigorous imprisonment for another 1(one) month.2. Heard Mr. B.K. Mahajan, learned counsel for the accused-appellant and Mr. H. Sharma, learned Addl. Public Prosecutor for the State.3. The prosecution case, as unfolded from the First Information Report (FIR) dated 02.07.2012 lodged before the In-Charge, Tarapur T.O.P. by Md. Abdul Hannan Laskar (PW-3), is that the marriage of his daughter, Jaynab Begum Laskar @ Sabi Begum Laskar with the accused-appellant was solemnized on 22.05.2011 as per Muslim rites and rituals. It was at around 9-30 p.m. on 01.07.2012, the accused-appellant called the informant (PW-3) over phone and told him that his daughter, Jaynab Begum Laskar had a heart attack and she was taken to the hospital. On receipt of the said information, when he (the informant) came to the hospital he found his daughter dead. The informant believed that the accused-appellant had killed his daughter. It was further stated that when his another daughter, Nayab once visited the house of the accused-appellant, they learnt that the accused-appellant along with his mother and sister, used to torture Jaynab Begum Laskar. In the FIR, the informant implicated apart from the accused-appellant, his mother and sisters also.4. On receipt of the said FIR, the In-Charge, Tarapur T.O.P. (PW-11) registered a General Diary Entry being G.D. Entry No. 34 dated 02.07.2012 and took up investigation of the case while forwarding the FIR to the Officer In-Charge, Silchar Police Station for registering a case. On receipt of the FIR, the Officer In-Charge, Silchar Police Station registered a case being Silchar Police Station Case No. 1257/2012 (corresponding G.R. Case No. 2269/2012) under Section 302, IPC. It may be mentioned that on 01.07.2012, when the dead body of the victim was taken to the Silchar Medical College Hospital (SMCH), Silchar, an FIR was also filed by a Doctor of the SMCH on the basis of which a case of unnatural death being UD Case No. 97/2012, was registered under Section 174, CrPC at Silchar Sadar Police Station.5. During the course of investigation, the Investigating Officer (I.O.) (PW-11) visited the place of occurrence, prepared the sketch map and recorded the statements of witnesses. The inquest on the dead body as well as the post-mortem examination of the dead body was conducted as part of the steps on the basis of UD Case No. 97/2012. At the time of post-mortem examination, the viscera of the deceased was preserved and the I.O. sent the same to the Forensic Science Laboratory (FSL), Guwahati for expert opinion. After receipt of the report of the viscera from the FSL Guwahati, the Post-Mortem Examination Report was given by the autopsy doctor (PW-9). While the accused-appellant was arrested in the course of investigation, the other accused persons were granted pre-arrest bail. After registration of Silchar Police Station case No. 1257/2012, UD Case No. 97/2012 was tagged with Silchar Police Station Case No. 1257/2012. Upon completion of investigation, the I.O. submitted a charge-sheet being Charge-Sheet No. 44 dated 31.01.2013 against (i) the accused-appellant, Md. Mustak Ahmed Laskar @ Sahi (A-1), (ii) Mustt Parbin Sultana Barbhuiya (A-2), (iii) Mustt. Jasmin Sultana Barbhuiya (A-3), (iv) Md. Altaf Hussain Barbhuiya (A-4) and (v) Mustt. Noor Khatun Begum (A-5), finding a prima facie case against them for commission of offences punishable under Sections 498A/302/34, IPC. Mustt. Parbin Sultana Barbhuiya (A-2) and Mustt. Jasmin Sultana Barbhuiya (A-3) are the sisters of the accused-appellant while Mustt. Noor Khatun Begum (A-5) is the mother of the accused-appellant. Md. Altaf Hussain Barbhuiya (A-4) is the husband of A-2.6. Pursuant to submission of the charge-sheet, the presence of the charge-sheeted accused persons were caused before the Court of learned Additional Chief Judicial Magistrate, Cachar, Silchar. On their appearance, the Court of learned Additional Chief Judicial Magistrate, Cachar, Silchar after compliance of the procedure prescribed under Section 207, CrPC, committed the case record of G.R. Case No. 2269/2012 under Section 209, CrPC to the Court of learned Sessions Judge, Cachar, Silchar finding the case to be a Sessions triable one. On receipt of the case record of G.R. Case No. 2269/2012, Sessions Case No. 89/2014 was registered.7. The learned Sessions Judge after hearing the parties, had framed charges under Section 304B/34, IPC and under Section 302/34, IPC against all the 5(five) accused persons including the present accused-appellant. When the charges so framed, were read over and explained to the accused persons, they pleaded not guilty and claimed to be tried. During the course of trial, the prosecution side in order to bring home the charges against the accused persons, had examined 11(eleven) nos. of witnesses, viz. PW-1 - Arif Uddin Laskar; PW-2 - Abdul Aziz Barbhuiyan; PW-3 - Abdul Hannan; PW-4 - Mustt. Rahela Begum; PW-5 - Rashid Habibullah Laskar; PW-6 - Mustt. Anowara Begum Laskar; PW-7 - Ainul Haque Laskar; PW-8 - Rehan Uddin Barbhuiyan; PW-9 - Dr. Gunajit Das (M.O.); PW-10 - S.I. Sarsing Terang (I.O.); and PW-11 - S.I. Mantu Ram Borah (I.O.). The prosecution side also exhibited 8 (eight) nos. of documents, viz. Ext.1 - FIR; Ext.2 - Post-Mortem Examination Report; Ext.3 - Final Opinion; Ext.4 - Report of the FSL, Guwahati; Ext.5 - Forwarding letter of the Report of FSL, Guwahati; Ext.6 - Inquest Report; Ext.7 - Sketch Map; and Ext.8 - Charge Sheet. The 5 (five) accused persons were examined under Section 313, CrPC and as per them, the case was a false one. The defense adduced no evidence in their support. On conclusion of the trial, the learned Sessions Judge found the present accused-appellant guilty for the murder of his wife and convicted him under Section 302, IPC. The accused-appellant was, however, acquitted of the charge under Section 304B/34, IPC as the learned Sessions Judge had held that the prosecution was not successful to prove the death of the deceased to be a dowry death. The complicity of the other 4(four) accused persons in the murder of the victim was found not proved and accordingly, they were acquitted of the charges under Section 304B/34, IPC and also under Section 302/34, IPC and accordingly, they were set at liberty. Aggrieved by the said judgment and order of the learned Sessions Judge, the present appeal has been preferred.8. Admittedly, there was no eye-witness account in respect of the alleged incident while resulted in death of the deceased, Jaynab Begum Laskar @ Sabi Begum Laskar. None of the prosecution witness had any direct knowledge as to how the death of the deceased was caused. The case is entirely based on circumstantial evidence.9. The learned trial Court did not find sufficient evidence in support of the allegation as regards demand of payment for dowry on the part of the accused-appellant or any of his family members nor it found sufficient evidence to hold that the deceased was subjected to torture and harassment on the ground of dowry. The learned Sessions Judge having regard to the medical evidence, had observed that the death of the deceased was a homicidal one. The circumstantial evidence, the learned Sessions Judge observed, had established that the homicidal death of the deceased had occurred in the house of the accused-appellant and, thus, it was for the accused-appellant to come up with a plausible explanation as to how the death of his wife had occurred inside the house. It was observed that there was no evidence to the effect that at the time of the death any person, other than the accused-appellant, had access to the deceased. The failure on the part of the accused-appellant to provide a plausible explanation had clearly given rise to a presumption that he had concealed vital facts. It was in such situation, a husband cannot be held to be not guilty.10. Assailing the judgment and order of the learned trial Court and the findings arrived at on the basis of the evidence by the learned trial Court, Mr. Mahajan, learned counsel for the accused-appellant has submitted that the circumstantial evidence do not establish that it was only the accused-appellant who only could have committed the crime. Though medical evidence had suggested that the death of the deceased was a homicidal one, the same by itself being only an opinion, does not conclusively prove that there was murder of the victim. Even if the death was held to be a homicidal one, he submits, it was the duty of the prosecution to prove by leading cogent and reliable evidence to link the alleged murder of his wife with the accused-appellant which the prosecution had miserably failed in the instant case. The evidence on record have clearly established that the accused-appellant was not present in his house at the time of the incident which resulted in the death of his wife. There is also no evidence to the effect that the deceased was subjected to torture and harassment at any point of time after the marriage at her matrimonial home. The evidence on record, on the contrary, has shown that the relation between the accused-appellant and his wife, the deceased was a cordial one and on the other hand, it was the relation between the deceased and her family members which was a strained one. In such view of the matter, the learned trial court could not have recorded a finding of guilt against the accused-appellant. The learned trial Court had clearly erred in drawing a presumption that it was only the accused-appellant who was the author of the crime.11. Mr. Sharma, learned Addl. P.P. referring to the medical evidence, has submitted that the cause of the death of the deceased was asphyxia resulting from ante-mortem manual strangulation (throttling), which was homicidal in nature. As the death was caused inside the house and the accused-appellant had failed, by maintaining silence, to provide any explanation as to how the death, a homicidal one, was caused the circumstantial evidence led by the prosecution does not lead to any other conclusion but to the one that the accused-appellant had caused the death of his wife. Therefore, he submits, when medical evidence is clearly pointing towards murder of the victim, the learned trial Court is not unjustified in its approach to return the finding of guilt against the accused-appellant and there is no ground to interfere with the impugned judgment and order of the learned trial Court.12. We have considered the submissions of the learned counsel appearing for the parties and also perused the materials available in the record of Session Case No. 89/2014, in original.13. Pw-9 is the Doctor, an Associate Professor in the Department of Forensic Medicine, SMCH, who conducted the post-mortem examination on the dead body of the deceased on 02.07.2012. On such examination, he found the following :-"Built was average, complexion was swarthy. Rigor mortise present in both upper and lower limbs. There was blood tinged frothy discharge from mouth and nostrils. There was livid brownish discolouration of face.In the neck - It was found externally healthy. On dissection there was diffuse contusion of soft tissues on upper part anteriorly and also on left side of middle of lower part. Trachea found compressed anteroposteriorly. There was fracture of hyoid bone, addultion type on greater carnu of left side.In the Cranium - Scalp and brain found congested. Skull and Vertebrae found healthy.In the Thorax - Larynx found filled with froth. Both the lungs found congested. Heart surfaces showed patechial haemorrhages.In the Abdomen - Stomach found congested externally with healthy muscosa with no charestarestic smell. Other visceral organs found congested. Stomach with it contents and portion of liver tissues and one kidney preserved in saturated solution of common salt and handed over to the accompanying police personnel for onward submission to FSL, Guwahati at the earliest chemical analysis.Opinion regarding cause of death was kept pending till receipt of the report of chemical analysis of visceras from FSL, Guwahati.Approximate time since death was 12 to 24 hours."After such finding, he kept his opinion regarding the cause of death reserved till receipt of the report of chemical analysis of visceras from FSL, Guwahati. He stated that the approximate time since death was 12 to 24 hours when he examined the dead body. Subsequently on receipt of the chemical examination report, he had given his final opinion on 24.12.2012 vide Ext. 3 as :- "the cause of death of Joynab Begum Laskar was asphyxia resulting from ante-mortem manual strangulation (throttling) which was homicidal in nature." He also exhibited the Post-Mortem Examination Report as Ext.2 and the report of the FSL, Guwahati as Ext.4. In his cross examination, PW-9 stated that the viscera were sent to the FSL, Guwahati for chemical examination and report so as to exclude any suspected case of poisoning, as after the completion of post-mortem examination he had the suspicion as to whether poisoning had contributed to the cause of death of the deceased. He deposed that throttling means compression of the neck by hand and in case of throttling of neck, there are supposed to be marks of fingers, thumbs, nails, palm, etc. on the neck of the deceased but not necessarily in all cases. He further stated that the Inquest Report (Ext.6) did not record any external injury on the body. He denied the suggestions that his opinion was without any reasonable basis and that the deceased did not die of manual strangulation (throttling).14. The opinion of the Doctor (PW-9) pointed towards a homicidal death caused by manual strangulation (throttling). Though the opinion of the expert cannot be considered to be a conclusive evidence as the same is a possibility and only on the basis of the same it is not possible to come to a final conclusion, in the absence of other corroboration, that the death was due to strangulation but for the time being, we deem it appropriate, assuming the death of the deceased to be a homicidal one, to proceed to analyse the other evidence led by the prosecution so as to find out whether there is sufficient evidence to connect the accused-appellant with the death of the deceased assuming the same to be a homicidal one.15. Pw-3, PW-4, PW-5, PW-7 and PW-8 are related to the deceased as they are the father, the mother, a cousin brother, the brother and a brother-in-law of the deceased respectively. None of them had seen the incident alleged to have happened in the house of the accused-appellant which ultimately resulted into the death of the deceased.16. Pw-3 stated that his daughter started living with her husband i.e. the accused-appellant in her matrimonial home, after solemnization of their marriage on 22.05.2011. He deposed that his daughter used to visit their house occasionally and during her such visits, she used to report to her mother and to him that the accused persons used to harass her for dowry. On 01.07.2012, one Sahu, a next door neighbour of the accused persons, informed him over phone that his daughter had suffered a heart attack and she had been shifted to the SMCH. On being so reported, he and his wife (PW-4) along with some of his relatives, went to the SMCH wherein he found the dead body of his daughter. He stated to have noticed mark of injury on her neck. He further stated that he lodged the FIR (Ext.1) on the following day due to delay in post-mortem examination and other medical formalities. In cross-examination, he stated that after marriage, his daughter visited his house 5 to 6 times. Though she reported incidents of harassment he did not take any recourse available under the law. He stated that his daughter i.e. the deceased paid her last visit to his house 21/2 to 3 months prior to her death. He denied that the deceased visited his house 15 to 20 days before her death. He also stated that at the time of marriage, there was no demand for dowry articles from the side of the accused persons. He denied the suggestion that the deceased was not having a peaceful conjugal life in the family of the accused. He further denied the suggestion that his daughter committed suicide as she was disturbed since her last return from her parental house.17. Pw-4 deposed that after marriage, the deceased spent the first few months of her matrimonial life peacefully. But thereafter, the accused persons started torturing her daughter for non-fulfillment of their demand for money and motorcycle. On the day of the alleged incident, the deceased had a talk with her over telephone at about 7-00 p.m. and that time, her daughter was normal. But it was at about 9-30 p.m., one of her daughter's brothers-in-law informed them over phone that her daughter had been shifted to the SMCH as she has suffered a heart attack. After having reached the SMCH, she saw the dead body of her daughter with a mark of injury on her neck. During cross-examination, PW-4 testified that the deceased used to communicate with her family members over mobile phone and also used to visit her parental house occasionally. This witness also stated that she did not take recourse to any remedy under the law when she was reported about the harassment. She stated that the deceased last paid visit to her parental house 15 days prior to her death and at that time, she stayed for 5 days. She denied the suggestion that when the deceased visited for the last time to the parental house, she had a quarrel and thereafter, she was in a distressed condition and when the deceased had the conversation with her just before her death, they had a quarrel again and for that reason, the deceased, out of mental distress, committed suicide.18. Pw-5, a cousin of the deceased, deposed that on the day of the alleged incident he received the information that Sebi Begum had expired at the SMCH. At the SMCH Emergency, it was reported to them by the Doctor that the victim was brought dead and she did not die of heart attack. On the following day, the dead body was handed over to the parents of the deceased after post-mortem examination. PW-5 denied the suggestion that he did not appear before the I.O. and that after post-mortem examination, he noticed mark of injuries on the cheek of the deceased. PW-5 had stated that after marriage of the deceased, he met the deceased about 2 to 3 times but she never reported before him about any incident of harassment, torture etc. in her matrimonial home. It is noticed that when the I.O. (PW-11) was examined, the I.O. clarified that PW-5 did not state before him about the mark of injuries on the cheek of the deceased.19. Pw-7 deposed that after marriage, the deceased used to visit her parental house. On 01.07.2012, the deceased had a talk with his parents in the evening and at that time, the deceased was very normal. But after half an hour, they were informed by the accused-appellant that the victim had suffered a heart attack and she was taken to the Medical College by him. On receipt of the information, PW-7 stated to have reached the SMCH along with other family members wherein he found the dead body of his sister with strangulation mark on her neck. He further stated that during her matrimonial life, his sister did not have good relation with her husband and in-laws and demand for a bike was made. During his cross-examination, PW-7 clarified that the deceased was only his relative. He further stated that he heard about the demand for bike from the parents of the deceased. He also deposed that the victim used to visit her parental house.20. Pw-8 stated that the victim was a younger cousin sister of his wife. On the day of the alleged incident, he heard the news that the victim had suffered heart attack and on hearing such, he had immediately gone to her matrimonial house wherein he found a gathering of people and there he heard whisper that the victim had suddenly fallen ill. As the victim had already been shifted to the SMCH, he also went there wherein he found the accused-appellant as well as the other relatives. When he asked the accused-appellant about the cause of the death, the accused-appellant did not give any satisfactory reply. Thereafter, he saw the dead body wherein he noticed mark of strangulation on the neck of the victim. After post-mortem examination, the dead body was handed over to the parental family of the deceased and it was taken to the village of her parents for the funeral which was not attended by the accused persons.21. Pw-1, PW-2 and PW-6 are witnesses who are neighbours of the accused-appellant and who knew the accused-appellant and his family members.22. Pw-1 in his examination-in-chief, deposed that on 01.07.2012, at about 8-00 - 8-30 p.m., he was at his house. Hearing noise, he went to the house of the accused-appellant. Reaching there, he learnt that the victim hanged herself and she was taken to the hospital by her husband. The parents of the accused-appellant were found weeping. PW-1 stated that his house is at about a distance of 20 feet from the house of the accused persons whom he knew from their childhood. He further stated that the sisters of the accused-appellant - A-2 and A-3 - used to reside with their husbands separately and at distant places from the rest of the accused persons. He further stated that his family and the family of the accused-appellant had visiting terms. The victim also used to pay visits to their house and during such visits, she never complained of any harassment or torture by the accused persons. After the marriage of the accused-appellant, A-2 and A-3 used to visit parental house occasionally.23. Pw-2 like PW-1, is another neighbour who knew the deceased as well as the accused-appellant and his family members. On the day of the incident, he was at the Mosque and hearing the news that the victim had hanged, he went to the house of the accused-appellant where he came to know that the accused-appellant had already taken his wife to the hospital. Later on, he came to know that the victim had expired. During his cross-examination, PW-2 stated that his house is situated at the distance of about 10 feet of the house of the accused-appellant. Apart from knowing the accused-appellant, he also knew the two sisters of the accused-appellant, A-2 and A-3, who got married much prior to the marriage of the accused-appellant. He testified that the deceased Sebi Begum used to visit his house. He further stated that Sebi Begum had good relation with her husband and his family members. She never complained of harassment, tortured etc. at her matrimonial home. He had seen the victim's parents and other family members paying social visits to the victim's matrimonial home. They used to interact with him during such social visits but they also had never complained of any harassment, torture etc. of their daughter at the house of the accused persons. As regards A-2 and A-3, PW-3 stated that they used to reside at faraway places and they used to visit their parental house occasionally but they never used to stay there.24. Pw-6 like P.W-1 & P.W-2, is also a neighbour of the accused-appellant. He, in his deposition, stated that at about 8-00 p.m. on the day of the incident, he heard hue and cry in the house of the accused-appellant. When he went there after about 10 minutes, he saw many people had assembled there and were pouring water into the mouth of the victim. In the meantime, the accused-appellant arrived there and seeing his wife in that condition, the accused-appellant immediately went out and by bringing vehicle, took his wife to the SMCH. Later on, he heard that the victim had committed suicide by hanging while admitting that he did not know how she died. At this stage, the prosecution declared this witness as a hostile one and on being permitted to cross-examine him, PW-6 was cross-examined by the prosecution. He denied to have stated before the I.O. that he had seen the victim lying dead on the bed and none of the family members of the accused-appellant reported to their neighbours about the commission of suicide by the victim. He further denied to have told the I.O. that he had heard the accused-appellant asking money from the victim or that he had seen them quarreling, etc. In the cross-examination by defence, this witness stated that he with his house being located at a distance of about 4 to 5 cubits, could hear sounds and talks which used to happen in the house of the accused persons. He stated that he had found the victim to be happily married as she had never complained against her husband and her-in-laws. He further deposed that the parents of the victim also used to pay visits to the matrimonial home of the victim and he had meet them during such visits. But during his such meetings with the parents of the victim, no complaint was made by them before him. With regard to A-2 and A-3, who were stated to have got married much prior to the marriage of the accused-appellant with the victim, PW- 6 stated that they used to reside at different places and they used to come to their parental house occasionally for a little duration. It was stated by him that some days prior to her death, the victim visited her parental house and after return, she stated before him that she had a quarrel with her mother.25. On examination of the above testimonies of the prosecution witnesses, it is evident that none of them had seen the actual incident. The parents of the victim had stated to have received the information about suffering of heart attack by her daughter on 01.07.2012 when they were at their house. PW-5 as well as PW-7 also heard the news about the victim being taken to the hospital from someone else. Similar was the testimony of the PW-8 in that regard. The four witnesses - PW-3, PW-4, PW-5 and PW-6 - stated to have seen the dead body of the victim only at the SMCH for the first time. They had also stated to have seen some mark of injury on the neck of the victim. On the other hand, PW-8 hearing the news, stated to have reached the house of the accused-appellant immediately where he stated to have heard, without naming the person from whom he had heard, that the victim was murdered. Thus, it is evident that none of these 5 (five) witnesses had seen the incident nor the incident was seen by the other witnesses viz. PW1, PW-2 and PW-6, who are immediate neighbours of the accused-appellant. The 3 (three) witnesses - PW-1, PW-2 and PW-6 - whose houses are located at a short distance from the house of the accused-appellant, had arrived at the house of the accused-appellant hearing hue and cry from the house of the accused-appellant. PW-1 did not see the body of the victim when he arrived there as the victim was taken to the hospital by her husband i.e. the accused-appellant. Similar is the testimony of PW-2. Only PW-6 who was declared hostile, claimed to have seen the victim in the house of the accused-appellant. On arrival, he found people assembling there and pouring water into the mouth of the victim. It was PW-6 who stated that the accused-appellant arrived at the scene later on, and seeing his wife ill, the accused-appellant immediately took his wife to the hospital.26. When the PW-3 lodged the FIR on the next date of the incident i.e on 02.07.2012, he claimed to have learnt from one of his daughters, Nayab that the victim was tortured in her matrimonial home by the accused-appellant and his family members. It was his belief that the accused had killed his daughter. But when he deposed before the Court as PW- 3, he stated that at the time of marriage, there was no demand for dowry from the family members of the accused-appellant. Nayab from whom PW-3 claimed to have got the knowledge of torture of the victim, was not examined by the prosecution as a witness nor Sahu, next door neighbour of the accused-appellant, from whom P.W.s claimed to have received the information on 01.07.2012, was examined by the prosecution. PW-3 stated that during her visit to her parental house, the victim had reported about being harassed for dowry articles by the accused persons. The mother of the victim, PW-4 on the other hand, stated that the victim had spent few months after the marriage peacefully but demand for money and motorcycle poured thereafter. But there is also inconsistencies in the testimonies of PW-3 and P.W-4 about the last visit of the victim to their house. PW-4 had a talk with the victim at about 7-00 p.m. on 01.07.2012 and at that time, PW-4 had found the victim normal. The demand regarding dowry is not supported by PW-5. The victim did not report to him about harassment, torture etc. whenever she had met him after her marriage. The evidence of PW- 7 and PW-8 in that regard is found to be hearsay ones. Such allegation of harassment for dowry is belied by the testimonies of PW-1, PW-2 and PW-6. There was no specific allegation against the accused persons - A-2, A-3, A-4 and A-5. It is apparent from the above that none of the prosecution witnesses had seen the actual incident.27. In view of the above, we find that the learned trial court was right in holding that the death of the deceased cannot be held to be a case of dowry death within the meaning and ambit of Section 304B, IPC, while acquitting all the accused persons who faced the trial from the said charge. We also agree with the finding of not guilty of the charge of murder returned against the accused persons, A-2, A-3, A-4 and A-5.28. In the above afore-mentioned obtaining fact situation, the question that arises for consideration is whether the learned trial court was right in holding the accused-appellant guilty of committing murder of his wife, assuming for the time being, if one proceeds on the assumption that her death was homicidal one.29. As has been found from the above, the prosecution case entirely rests on circumstantial evidence. The learned trial court proceeding on the basis that the death of the victim was a homicidal one, was of the view that it was incumbent on the accused-appellant who was the husband of the deceased, to come up with a reasonable explanation as regards how or who caused the homicidal death of his wife. As the accused-appellant was totally silent in that regard, it gave rise to the reasonable presumption, the learned trial court held, that he was concealing vital facts apprehending his involvement in the commission of the death of the deceased. The learned trial court had observed that there was no evidence on record that at the time of death any other person, other than the accused-appellant had access to the deceased and in such situation, he could not wash off his hands.30. It is evident that the incident which resulted into the death of the victim, had occurred in the house where the accused-appellant and his family members lived. But there was no evidence nor was any witness examined to suggest that the accused-appellant was at or at around his residence at the relevant time. The testimonies of the PW-1 and PW-2 are to the fact that the accused-appellant had taken the victim to the hospital for treatment by the time they reached the house of the accused-appellant. As per PW-6, when he reached the house of the accused-appellant he found many people had assembled there and water was being poured into the mouth of the victim. It was only thereafter, the accused-appellant had arrived at the spot and seeing the condition of the victim, he had taken his wife of the hospital by bringing a vehicle. Thus, there is no evidence to the fact that at the time of alleged incident it was only the accused-appellant who was with the victim.31. It is settled law that in a case based on circumstantial evidence, the prosecution is required to establish the continuity in the links of chain of circumstances, so as to lead only to the inescapable conclusion of the accused being the assailant. There must be a chain of evidence which do not leave any reasonable ground to infer innocence of the accused and the evidence must show that in all human probability the act must have been committed by the accused. The circumstances to be established by the prosecution should be of a conclusive nature. The burden to prove the guilt of the accused beyond reasonable doubt is on the prosecution and it is only when this burden is discharged by the prosecution the accused is called upon to prove any fact within his special knowledge under Section 106 of the Evidence Act to establish, albeit by the standard of preponderance of probability, that he was not guilty. Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond all reasonable doubts.32. The facts that could be said to be established from the evidence on record are that the victim had suffered assumedly a homicidal death and such death had been resulted out of an incident which had occurred in the house of t

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he accused-appellant where the accused-appellant and his other family members used to reside. But it is not established conclusively that when the alleged incident had occurred in the house resulting into the death of the deceased that the accused-appellant was in the house or in the near vicinity of the house. Had the prosecution been able to establish the fact that at the time of the alleged incident which ultimately resulted into the death of the deceased, the accused-appellant was the only person who was in the company of his wife, he would have been required to provide an explanation and lack of an explanation on his part could have been held as a strong circumstance against him. But such fact has not been established by the prosecution and as such, the question of shifting the onus to the accused-appellant to provide an explanation under Section 106, Evidence Act has not arisen in the case in hand. From the evidence on record the last seen theory together cannot be invoked. That leaves open a possibility that the incident might have taken place in some other manner. It is well settled that where on the evidence two possibilities can be inferred - one which goes in favour of the prosecution, and the other which benefits an accused - the accused is undoubtedly entitled to the benefit of doubt. From the evidence led by the prosecution, we are not persuaded to hold that the prosecution had succeeded to shift the onus to the accused-appellant which required him to provide a reasonable and plausible explanation as regards the cause of death of the victim and maintenance of silence on his part even the same is assumed to be a strong circumstance raising a strong suspicion against him, do not disentitle him from the benefit of doubt. A suspicion, even if it is a strong one, cannot take the place of proof.33. In the light of the above discussions, we are of the view that the evidence on record has not connected the possible homicidal death of the deceased with the accused-appellant as the perpetrator of the crime for the reason that the prosecution evidence has fallen short to discharge its burden of establishing the chain of circumstances to link them all together leading to the only conclusion that it was only the accused-appellant who could have caused the death of the victim. In such view of the matter, the accused-appellant is clearly entitled to the benefit of doubt. In our considered view, the learned trial court could not have held the accused-appellant guilty just because the accused-appellant had not explained under what circumstances the deceased died. In such view of the matter, even if the death of the victim is held to be of homicidal one there is nothing on record, at the same time, which has conclusively established that the accused-appellant was the author of the crime. The circumstances on record do not rule out other hypothesis. Despite any suspicion, even if it is strong, the accused-appellant is, in our considered opinion, entitled to benefit of doubt and there is no sufficient evidence to convict him under Section 302, IPC. For the reasons afore-mentioned, the impugned judgment and order dated 13.11.2015 of conviction and sentence passed by the accused-appellant is set aside and quashed, acquitting the accused-appellant of the charge under Section 302, IPC. Resultantly, this appeal stands allowed.34. It is stated at the bar that since the date of the impugned impugned judgment and order dated 13.11.2015, the accused-appellant is in jail. It is directed that the accused-appellant be set at liberty forthwith if he is not wanted or required in connection with any other case.35. Send back the LCR along with a copy of this judgment and order.
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