Judgment & Order

M. Zothankhuma, J.

1. Heard Mr. N.J. Das, learned Amicus Curiae for the appellant. Also heard Ms. B. Bhuyan, learned Senior Counsel and Additional Public Prosecutor, Assam, assisted by Ms. R. Das, learned advocate for the State.

2. The appellant has put to challenge the impugned judgment dated 08.06.2020 passed by the learned Court of the Additional Sessions Judge (FTC- 1) at Margherita, Tinsukia, in Sessions Case No.83(M)/2016, by which the appellant has been convicted under Section 302 of IPC for killing his wife and sentenced to undergo rigorous imprisonment for life, with a fine of Rs.10,000/- (Rupees ten thousand), in default, to undergo simple imprisonment for another 6 (six) months.

3. The Prosecution case in brief is that the informant (PW-1) submitted an FIR dated 22.10.2015 to the Officer-in-Charge of the Pengaree Police Station, Tinsukia, stating that the appellant, who resides at the informant’s Bijulibar Tea Garden Line started beating his wife since 4 p.m. The informant further learnt from his neighbours as well as the appellant that the deceased had been assaulted till 10 p.m. On going to the house of the deceased in the morning, he found her dead. Pursuant to the FIR, Pengaree P.S. Case No.87/2015 under Section 302 IPC was registered.

4. The Investigating Officer after completing the investigation submitted his Charge-sheet, on finding a prima facie case under Section 302 IPC against the appellant. The learned Trial Court thereafter framed Charge under Section 302 IPC, to which the appellant pleaded not guilty and claimed to be tried.

5. The learned Trial Court thereafter examined 6 (six) Prosecution Witnesses (PWs). The appellant was also examined under Section 313 Cr.P.C. The learned Trial Court thereafter came to a finding that the appellant had killed his wife. Accordingly, the appellant was convicted and sentenced to life imprisonment with a fine of Rupees ten thousand, in default to undergo simple imprisonment for another six months under Section 302 IPC.

6. The learned Amicus Curiae for the appellant submits that there is no proof that there was any mens rea on the part of the appellant in the act of killing his wife. As such, the Charge under Section 302 IPC should be altered to Section 304 Part-I or Part-II IPC.

7. The learned Amicus Curiae for the appellant further submits that no weapon was recovered from the appellant to prove that the appellant had caused the death of his wife. He further submits that the deceased had apparently gone to the house of PW Nos.2 & 4, who were a neighbouring couple at around 4 p.m, after being assaulted by her husband, the appellant. If there was any intention on the part of the appellant to kill his wife, the deceased would not have been able to go to the house of PW Nos.2 & 4 at 4 p.m, as she would have been killed around 4 p.m itself.

8. Ms. B. Bhuyan, learned Additional Public Prosecution submits that the injuries on the victim show that there was intention on the part of the appellant to kill the deceased. The learned Additional Public Prosecution submits that the deceased had died in her own house during the presence of the appellant only. As such, the circumstantial evidence proved that the appellant had caused the death of his wife. Further, the evidence of PW-1 shows that the appellant had confessed before him that he had killed the deceased. Also, the evidence of PW Nos.2 & 4 shows that there was a continuing offence committed by the appellant, which eventually led to the death of the victim. Further, the evidence of PW Nos.2 & 4 also shows that the deceased had informed them at around 4 p.m that the appellant had assaulted the deceased. Keeping the above in view and the fact that PW Nos.2 & 4 had heard the sound of a quarrel between the appellant and the deceased at around 8 p.m on the same night, which was followed by the discovery of the dead body of the deceased in her house the next morning, proved that the appellant was the only person who could have killed the deceased.

9. The learned Additional Public Prosecutor submits that the explanation given by the appellant under Section 313 Cr.P.C that the injuries sustained by the deceased was due to her fall, after consuming alcohol, is not in tandem with the Medical Report, which shows multiple injuries on different parts of the body of the deceased. The learned Additional Public Prosecution submits that in view of the extra judicial confession made to the PW-1 by the appellant and the evidence of PW Nos.2 & 4, the circumstantial evidence points only to the appellant being the person who could have killed the deceased and no one else could have been involved in the said act. As such, the appeal should be dismissed.

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

11. The evidence of PW-1 (the informant) is to the effect that on asking the appellant as to how his wife had died, the appellant had told him that he had assaulted his wife (deceased) with his own hands. Thereafter PW-1 informed the police, due to which Inquest Report was prepared.

12. The evidence of PW-2, who is a neighbour of the appellant, is to the effect that on the date of the incident at about 4 p.m, a quarrel took place between the appellant and his wife. Thereafter, the appellant’s wife came to the house of PW-2 and showed him the injury on her face and told him that she had been assaulted by the appellant. After PW-2 pacified the appellant’s wife, PW-2 and PW-4 (wife of PW-2) escorted back the deceased to her house. However at about 8 p.m in the night, PW-2 heard the sounds of a quarrel between the appellant and his wife. Since it was night, PW-2 did not come out of his house. In the morning, the appellant came to the house of PW-2, heavily drunk and told him that his wife could not wake up. The appellant then asked PW-2 to send his wife (PW-4) to wake up the deceased. On going to the house of the appellant, PW-2 found the appellant’s wife was dead, due to which the matter was informed to the owner of the Tea garden. On being asked by the owner of the Tea garden as to what had happened, the appellant stated that he was heavily drunk the previous night and he did not know when and how he had assaulted the deceased. PW-2 further stated that he noticed marks of injury above the ear of the deceased.

13. The evidence of PW-3, who is the Senior Medical & Health Officer of Tinsukia Civil Hospital is to the effect that he had performed the Post-mortem Examination on the deceased at about 2:30 p.m on 22.10.2015. The report on the External Appearance of the deceased and the Opinion of PW-3 is reproduced hereinbelow, as follows :

                   “External Appearance:-

                   A female body of average built, brown complexioned having long black hair, wearing a printed violet coloured nighty and a green petticoat. Clothes and body were mud stained. Rigormortis was present.

                   Following injuries were found on the body:-

                   (1) Contusion on right cheek of size 3cm x 2cm, caused by blunt object.

                   (2) Contusion on left cheek of size 3cm x 4cm, caused by blunt object.

                   (3) Contusion in the middle of the chest of size 4cm x 7cm. On dissection, blood was found collected under skin. The sternum was fractured in the middle part. Median sternum was filled with blood. Injury was caused by blunt force impact.

                   (4) Contusion of scalp was present on the left temporal region of size 3.5 x 5 cm. On dissection, blood under the scalp was seen. A hairline fracture was found on the temporal bone.

                   (5) Contusion on occipital region of size 3cm x 4cm was present. Blood was found collected under scalp. A hairline fracture was present on the underlying bone.

                   Both injuries of scalp (Injury Nos. 4 and 5) were caused by blunt object

                   On dissection of the thorax, right pleural cavity contains 72 ml. of blood. Right lung was contused in the middle. On dissection of the head, the extra dural space contains 62 ml of blood and sub dural space contains 85 mi of blood. On dissection, brain was found congested with blood. Ventricles contain blood. All other organs were normal and healthy.

                   Opinion: In my opinion, death was due to shock and haemorhage, as a result of injuries sustained. All injuries were ante-mortem and homicidal in nature. Time since death 12 to 18 hours.

                   Injury Nos.3 and 5 are individually sufficient to cause the death of a person in ordinary course of nature.

                   Ext.3 is the post-mortem report and Ext.3(1) is my signature. I have also gone through the inquest report in connection with Pengaree P.S. G.D. Entry No. 474, dtd. 22.10.15. Ext.2 is the inquest report and Exts.2(3), 2(4) and 2(5) are my signatures.”

14. The evidence of PW-4, who is the wife of PW-2 is to the effect that she knew the deceased and the appellant. At about 4 p.m on the occasion of Durga Puja, there was a quarrel between the appellant and the deceased. On going to their house, PW-4 pacified the appellant and the deceased. Then again in the evening at about 6 p.m, a quarrel took place during which the appellant assaulted the deceased, for which she sustained injury on her ear. Further, blood was also coming out. After the quarrel, the deceased came to the house of PW- 4. However, PW-4 told the deceased to go back to her house and take food and sleep, which the deceased did. The next morning, the appellant came to their house and told them that the deceased was sleeping and asked PW-4 to give water to the deceased. On going to their house, PW-4 found that the deceased was already dead. Accordingly, the matter was informed to the owner of the Tea garden. PW-4 further stated that the appellant and the deceased used to quarrel frequently.

15. The evidence of PW-5, who is the Gaonburah, is to the effect that the owner of the Tea garden had made a telephone call and told him that some incident had occurred in the labourers’ quarters and asked him to come. On going to the house of the appellant, he found that the appellant had been tied up by some persons, as the appellant had killed his wife.

16. The evidence of PW-6, who is the investigating officer is to the effect that while working as an O/C of Pengaree P.S. on 22.10.2015, the informant submitted an FIR to the effect that the appellant had assaulted his wife, due to which she died. He accordingly made a G.D Entry, Vide Pengaree P.S. G.D Entry No.474 dated 22.10.2015. The incident occurred in the quarter of the appellant where he found the dead body of the appellant’s wife lying on the ground inside the quarter. He saw marks of injuries on her face and neck. Blood was visible on those injuries. The Magistrate was informed, who held an inquest over the dead body. The dead body was then sent for Post-mortem Examination and a sketch map of the place of occurrence was drawn. The appellant was also taken to the police station. He also stated that on finding incriminating materials against the appellant, Charge-sheet was filed.

In his cross-examination, PW-6 stated that the appellant’s quarter was a single room without any window. It had one door which was open.

17. In his examination under Section 313 Cr.P.C, the appellant denied killing his wife. However, when asked about the injuries on the face of the deceased, the appellant answered that she had fallen down after consuming alcohol and that he did not beat her.

18. As can be seen from the evidence of PW-1, the appellant had confessed that he had killed his wife.

19. In the case of Moorthy vs. State of Tamil Nadu, reported in (2023) Live Law (SC) 679, the Supreme Court has held that conviction can be based on the basis of an extra-judicial confession, provided it is voluntary and truthful.

20. Though an extra-judicial confession is a weak type of evidence, the extrajudicial confession made by the appellant to PW-1 appears to be truthful and voluntary. Further, the evidence of PW Nos.2 & 4 corroborate the fact that the appellant had beaten his wife, inasmuch as, the wife of the appellant had run to their house during the day and informed them that she had been beaten by the appellant.

21. The evidence of PW Nos.2 & 4 thus clearly contradicts the explanation given by the appellant in his examination under Section 313 Cr.P.C that he did not beat his wife. PW Nos.2 & 4 had seen the injury sustained by the wife while she was alive, as the deceased had gone to their house in the evening, after being beaten up by the appellant. Further, the evidence of PW-2 is that after the deceased had been escorted back to her house by PW Nos.2 & 4 in the evening, a quarrel took place between the appellant and the deceased wife at around 8 p.m. It was only in the morning that the dead body of the deceased was found in the quarter of the appellant. There is no whisper of the appellant not being with his wife from 4 p.m of the day of the quarrel till the discovery of her death. There is also no evidence that after PW Nos.2 & 4 had escorted the deceased wife back to her quarter, some third person had entered the quarter of the deceased and the appellant.

22. The evidence of PW-6 shows that the living quarter of the appellant was made up of one room having no windows and only one door. There being nothing to show that the appellant or the deceased had left the house at any time during the night of the incident or that some other person had entered their living quarters, it was the responsibility of the appellant to throw light as to how his wife had died during the night, in terms of Section 106 of the Evidence Act.

23. The foundational facts having been proved to the effect that the appellant had assaulted his wife with his hands due to which blood had come out from her injured ear and the fact that she was returned back to the house by PW Nos.2 & 4, shows that the circumstantial evidence all pointed to a continuing offence and the guilt of the appellant in killing his wife.

24. In his examination under Section 313 Cr.P.C, the appellant had stated that the deceased had fallen due to alcohol, when asked as to how the deceased had received so many injuries on her body. A perusal of the injuries found on the body of the deceased in terms of the evidence of the Doctor (PW-3), belies the explanation given by the appellant, that the injuries were due to a fall. Numerous injuries on different parts of the body of the deceased could not have occurred on the basis of the deceased falling to the ground.

25. The explanation given by the appellant with regard to the questions put to him shows that no plea of alibi had been taken by the appellant. Further, the nature of multiple injuries on the vital parts of the body of the deceased leads us to believe that there was mens rea on the part of the appellant to kill the deceased. There is also nothing pleaded by the appellant’s counsel, besides no evidence being available, to show that any of the Exceptions to Section 300 IPC was attracted, to prove that the act of the appellant was culpable homicide not amounting to murder. As such, we have no reason to hold that Section 304 IPC is attracted to the facts of this case.

26. Considering all the above facts, we have no hesitation in holding that all the circumstantial evidence points only to the fact that the appellant was the only person who killed his wife, despite no weapon being recovered by the Police. Further, when it is the stand of the deceased wife before PW Nos.2 & 4 when she was alive, that the appellant had assaulted her, we find no reason to come to any other finding, except to agree with the learned Trial Court in holding that the circumstances all point to the appellant having killed his wife. As such, we find that the conditions to be fulfilled for coming to a conclusion that the guilt of the appellant has been fully established, as laid down by the Supreme Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, reported in AIR 1984 SC 1622, has been established.

27. For all the reasons stated above, we do not find any reason to interfere with the impugned judgment dated 08.06.2020 passed by the learned Court of the Additional Sessions Judge (FTC-1) at Margherita, Tinsukia, in Sessions Case No.83(M)/2016.

28. The appeal is accordingly dismissed.

29. Send back the TCR.

30. In appreciation of the assistance provided by Mr. N.J. Das, learned Amicus Curiae for the appellant, his fees should be paid by the Assam State Legal Services Authority as per norms.