Judgment & Order (Oral)

M. Zothankhuma, J.

1. Heard Ms. B. R. A. Sultana, learned Legal Aid Counsel for the appellant and Ms. B. Bhuyan, learned Senior Counsel/APP, Assam, assisted by Ms. R. Das, learned counsel.

2. The present appeal has been filed against the impugned judgment dated 06.09.2024, passed by the learned Sessions Judge (FTC-2), Tinsukia in Sessions Case No. 135(T)/2023, by which the appellant has been convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life with a fine of Rs.10,000/-, in default, simple imprisonment for six months, for having murdered his wife.

3. The prosecution case in brief is that the Inspector Jyotish Goyary (Officerin- Charge of Doomdooma P.S., Tinsukia), had submitted an FIR dated 05.06.2023 to the effect that on 05.06.2023 at around 8 AM, he heard that his elder sister Juliana Govin had died. On reaching his elder sister’s house, he found the dead body of his elder sister and also noticed injuries on different parts of her body and when he asked his brother-in-law, i.e., the appellant, the appellant stated that he had beaten up the deceased with his hands and sticks and upon bringing her home, she had died. Pursuant to the FIR, Doomdooma P.S. Case No. 154/2023 under Section 302 IPC was registered.

4. After investigation was completed, the Investigating Officer (PW-6) submitted the charge sheet under Section 302 of the IPC, on finding a prima facie case of murder against the appellant.

5. The learned Trial Court thereafter framed charge under Section 302 IPC, to which the appellant pleaded not guilty and claimed to be tried.

6. The learned Trial Court thereafter examined six Prosecution Witnesses and after examining the appellant under Section 313 Cr.PC, the learned Trial Court came to a finding that the prosecution had been able to prove beyond reasonable doubt that the appellant had murdered his wife. The above finding had been made by the learned Trial Court, in view of the Investigating Officer having stated that the appellant was present with the deceased and as the appellant had taken the deceased to hospital, after he had assaulted her with the branch of a tree. Further, the appellant had stated in his examination under Section 313 Cr.PC that his wife died due to a fall under the influence of liquor, which proved the fact that the appellant had assaulted his wife, who died due to the assault. The learned Trial Court thereafter convicted the appellant and sentenced him under Section 302 IPC.

7. The Legal Aid Counsel for the appellant submits that there is no evidence adduced by the learned Trial Court to prove that the appellant had murdered his wife. As such, the appellant should be acquitted of the charge under Section 302 IPC.

8. On the other hand, the learned APP submits that the evidence of the Investigating Officer (PW-6) is to the effect that the appellant had confessed to PW-6 that he had assaulted his wife (deceased) with the branch of a tree and had taken his wife to the hospital. Further, the appellant had, in his examination under Section 313 Cr.PC, stated that his wife had fallen under the influence of liquor. When the evidence of PW-6 is juxtaposed with the explanation given by the appellant in his examination under Section 313 Cr.PC that his wife had died due to a fall under the influence of liquor, the same proved the involvement of the appellant in the death of his wife, inasmuch, the presence of the appellant at the time of death of the deceased, had been proved. Thus, in the absence of any explanation given by the appellant with regard to how his wife had died, as required under Section 106 of the Evidence Act, the non-explanation of the cause of death of his wife was another link in the circumstantial evidence, pointing to the hypothesis that the appellant was the only person, who could have killed his wife.

9. We have heard the learned counsels for the parties.

10. The evidence of the witnesses have been gone into by us and in none of the testimonies of PW Nos. 1 to 5, we see any connection being made between the appellant and the death of his deceased wife, except to prove the fact that the appellant was the husband of the deceased. The only evidence that points the finger of blame in the death of the deceased to the appellant, has been made by the Investigating Officer (PW-6), who states that “During interrogation the accused stated that he went to the special line of Tara T.E. where he consumed alcohol and after returning to the P.O. he assaulted his wife, as a result of which she died."........"The accused showed us the P.O. and he confessed that he assaulted the deceased with a branch of tea tree. The accused also stated before me that the deceased was taken to the garden hospital by him in injured condition, but as no doctor was available at the hospital he returned the injured and kept her at his house." Interestingly, no person employed in the hospital in which the appellant had allegedly taken the deceased to, has been made a prosecution witness, to prove the veracity of the alleged statement made by the appellant to PW-6 that he had taken his wife to the hospital.

11. In any event, Section 25 of the Evidence Act provides that no confession made to a Police Officer, shall be proved as against a person accused of any offence. Thus, any alleged confessional statement made by an accused before the police is inadmissible in evidence and cannot be made the basis for any conviction by the learned Trial Court.

12. The evidence of PW-1, who is the sister of the deceased, is to the effect that he came to know from the Chowkidar of the Tea Estate that the appellant had killed his wife. However, the said Chowkidar has not been made a witness in this case.

13. The evidence of PW-2, who is the Medical and Health Officer, Tinsukia Civil Hospital, is to the effect that on 06.06.2023, he conducted the postmortem examination on the deceased at around 3 pm. The result of his examination, as stated by him, was as follows:-

                   “"A female dead body of around 40 years, seen in decomposed state, hefty built wearing black petticoat, black blouse with blistering and peeling of skin at places with bloating of face and abdomen, lips were swollen and everted, black eyes. Rigormortis passed off. Injuries:-

                   1. Diffuse contusion seen all over the scalp with fracture of frontal bone with ruptured underline membrane.

                   2. Sub-dural, sub-arachnoid haemorrhage involving both cerebral hemisphere seen in grain with fourth ventricle filled with blood.

                   3. All the other organs were early decomposed.

                   In my opinion death was due to coma as a result of head injury sustained as described. All the injuries were ante-mortem in nature and caused by blunt force impact."

In his examination, PW-2 stated that the injury Nos. 1 & 2 may be caused by falling or collision with a hard substance.

14. The cross-examination of PW-3, who is the daughter of the appellant and the deceased, is to the effect that her mother used to take alcohol. On the day of the incident, her parents had gone to a nearby marriage function and her mother took alcohol. Her father never scolded and assaulted her. Though she has stated in her examination-in-chief that some persons had told her that her mother had been killed by the appellant, no such evidence to that effect has been made by any such person as a witness.

15. The evidence of PW-4 is to the effect that he was informed by one person about the incident.

16. The evidence of PW-5 is to the effect that the informant was his neighbour. He stated that he came to know from villagers that the deceased had been killed by her husband.

17. The above being said, we have also noticed that the learned Trial court had also taken into consideration the explanation given by the appellant in his examination under Section 313 Cr.PC, to the effect that he was falsely implicated in this case and his wife died by falling under the influence of liquor.

18. On considering the evidence that had been adduced, there is nothing stated by any of the prosecution witnesses, except for PW-6, that the appellant had anything to do with the death of the deceased. In fact, the evidence of PW Nos. 2 & 3 appears to corroborate the explanation given by the appellant, that his wife had died due to a fall under the influence of liquor. We have no reason to doubt the said explanation given by the appellant, as the same is a plausible reason for the death of the deceased. Even if there is another view, on the assumption that the appellant had not given a true account of what had happened to his wife and was somehow involved in murdering his wife, it is settled law that if two views are possible, the view in favour of the accused/appellant would have to be accepted by the Court.

19. For the reasons stated above, we are not inclined to accept the impugned judgment passed by the learned Trial Court, as the basis for the said judgment is clearly hit by Section 25 of the Evidence Act. There is no evidence given by any of the prosecution witness stating that the appellant killed his wife or that there were witnesses to the crime, if any. The Chowkidar, who had allegedly told PW-1 that the appellant had killed his wife, has also not been made a witness. The entire prosecution case is based on speculation and the circumstantial evidence sought to be relied upon by the prosecution, to prove that the appellant was guilty, is not complete. There are many un-answered gaps in the prosecution case. As such, we do not find the impugned judgment to be sustainable in law, as the circumstantial evidence does not form a complete chain.

20. Accordingly, the impugned judgment dated 06.09.2024 passed by the learned Sessions Judge (FTC-2), Tinsukia in Sessions Case No. 135(T)/2023, is hereby set aside. The appellant is accordingly acquitted of the charge framed against him under Section 302 IPC. The respondents are directed to release the appellant from judicial custody immediately.

21. The appeal is accordingly allowed.

22. Send back the TCR.

23. In appreciation of the assistance provided by the learned Legal Aid Counsel, her fees should be paid by the Assam State Legal Services Authority as per norms.