Ananda Hazarika vs State Of Assam

P.K. Deka, J

Heard Ms. R. Dutta, the learned Amicus Curiae and Mr. M. P. Goswami, the learned Additional Public Prosecutor, Assam.

This appeal is against the judgment and order of sentence dated 05.09.2010 passedby the learned Sessions Judge, Nagaon in Sessions Case

Sessions (T-1) Case No.174(N) of 2010.

It is the case of the prosecution that on 10.06.2009, at about 11.00 AM, the deceased Kanak Hazarika, the husband of the informant, Smti. Isikan

Hazarika (PW1) of village Maz Ghilani under Kampur Police Station went out from his residence along with the Fishery Officer and arrived at the

house of Homeswar Hazarika. At around 3.00 PM on the same day, the said informant was informed that the accused/appellant, Ananda Hazarika

called the deceased husband, Kanak Hazarika to his house and thereafter the said accused person killed him by strangulation. Upon hearing such

information the informant, with other persons arrived at the house of the accused person and found the dead body of her husband lying in the

courtyard of the accused person, following which FIR was lodged before the Officer-incharge, Kampur Police Station and thereafter Kampur P.S.

Case No.61/2009, under Section 302 of the IPC was registered. Police completed the investigation and submitted the charge sheet under Section 302

of the IPC against the accused/appellant, Ananda Hazarika. After commital, the learned Additional Sessions Judge (FTC), Nagaon framed the formal

charge under Section 302 of the IPC against the accused/appellant. Later on, the case was withdrawn from the Court of the learned Additional

Sessions Judge (FTC), Nagaon and the said case was tried and disposed of by the impugned judgment and order of sentence by the learned Sessions

Judge, Nagaon.

The point for determination was framed as follows:

“i) Whether on last 10.06.2009 at Ghilaniati Gaon under Kampur P.S., the accused committed murder by intentionally causing death of Kanak

Hazarika and thereby committed an offence punishable under Section 302 IPC?â€​

After the trial, wherein in total 13 (thirteen) numbers of prosecution witnesses wereexamined by the prosecution side and on recording the

statement under Section 313 of the Cr.P.C., the learned trial court held as follows:

“13. Thus, after careful scrutiny of all the circumstances which the prosecution tried to establish by adducing cogent, reliable and trustworthy

evidence and also after considering the settled position of law regarding basing of conviction, I find that the circumstances which are established by

the prosecution leaves no room for doubt that he is the accused and no one else, who on the day of occurrence committed murder of the victim. These

established circumstances unerringly pointed towards the culpability of the accused himself and wholly rules out any other reasonable hypothesis of

the innocence of the accused. Thus, the chain of circumstances is so complete so as to rule out any reasonable possibility of false implication.

Therefore, after considering all the meticulous aspects of the law and facts, evidence adduced by the PWs, statement recorded under Section 313 of

the Cr.P.C. and having regard to the above cited judicial Authorities, this Court is of the view that in course of trial, the prosecution had succeeded to

bring home the charge under Section 302 of the Indian Panel Code against the accused person beyond all reasonable doubt.â€​

The learned trial court after hearing on the part of the sentence was satisfied to pass the same against the accused/appellant for his offence under

Section 302 of the IPC to undergo Rigorous Imprisonment for life and to pay a fine of Rs.10,000.00 (Rupees ten thousand) and in default a further

term of Simple Imprisonment of one year.

Ms. Dutta, the learned Amicus Curiae submits that the prosecution totally failed toprove the charge under Section 302 of the IPC against the

accused/appellant inasmuch as none of the witnesses examined by the prosecution stated that they saw the accused person causing death of the

victim by throttling. Reverting to the evidence of PW1-Isikan Hazarika, the learned Amicus Curiae submits that as per the deposition of PW1, the

PW11-Homeswar Hazarika was all along present with the deceased just prior to the accused/appellant called him to his house. But such facts were

not supported by the said PW11 while adducing his evidence and as such no reliance could be placed on the testimony of PW1. The motive behind the

crime has not been proved by the prosecution. The circumstances leading to the death of Kanak Hazarika are not complete in order to convict the

present appellant and as such the accused/appellant is liable to be given the benefit of doubt.

The defence case that the deceased was a drunken person and under influence ofliquor fell on the ground leading to his death ought to have been

considered by the learned trial court inasmuch as evidence of throttling the deceased by the accused/appellant is totally missing. Under such

circumstances the judgment and order of sentence by the learned trial court is liable to be set aside.

Opposing strongly by the learned Additional Public Prosecutor he submits that this is apure case of circumstantial evidence and as the defence

taken by the accused/appellant of falling on the ground due to the influence of alcohol being the cause of death is not at all supported by the medical

evidence and as there is no eye witness/witnesses, under such circumstances the medical evidence is to be considered. On the other hand, the

defence failed to discharge its onus in order to show that the deceased met his death after falling on the ground. Thus, it is not a case for interference

by this Court.

We have considered the submission of the learned counsel. Without recording theprosecution story at the cost of repetition it would be proper to

look into the postmortem report and the opinion thereof which shows that marks of ligature on the right and front of neck, ecchymosis around the neck

were found both lungs were congested. The opinion of the doctor is, death due to asphyxia as a result of throttling. The said report was dated

11.06.2009. It would not be out of place to mention here that the fact of discovery of the dead body of the deceased on the courtyard of the

accused/appellant was never disputed by the defence side. There were no eye witnesses to the incident and the learned trial court has rightly held that

the entire prosecution case hinges on the circumstantial evidence.

The principle relating to circumstantial evidence is settled by the Hon’ble Apex Court in Sharad Birdhi Chand Sarda vs. State of Maharashtra,

reported in AIR 1984 SC 1622 wherein the required conditions/ the golden principles to be fulfilled before a case against an accused can be said to be

fully established on the basis of circumstantial evidence are laid:-

“152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be

fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fullyestablished. It may be noted here that this Court indicated that

the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be

proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(1973) 2 SCC 793 :

(AIR 1973 SC 2622) where the following observations were made:

Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between

'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

(2) the facts so established should be consistent only with the hypothesis of the guiltof the accused, that is to say. they should not be explainable on

any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonableground for the conclusion consistent with the innocence of the

accused and must show that in all human probability the act must have been done by the accused.

These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.â€​

PW1 deposed that her husband Kanak Hazarika went to take photograph of HomeswarHazarika’s pond which was situated near the accused

person’s house in connection with a government grant. After an hour of her husband’s departure, one Dipon Hazarika informed her that the

accused/appellant Ananda had killed her husband by strangulating him. Immediately she went to the house of the accused person and found the dead

body of her husband lying within the courtyard of Ananda’s house. In her cross-examination she deposed that they were on visiting terms with the

accused/appellant and the nephew of the deceased Kanak Hazarika. She specifically denied the defence of the accused/appellant that her husband, on

the day of occurrence, went to the house of the accused person after consuming alcohol and died after a fall. PW3 (a) is Rajeswar Hazarika who

deposed that he saw the dead body lying in the door way of the house of the accused/appellant. On being asked by him the accused/appellant Ananda

said that his maternal uncle Kanak died by falling down. On the other hand, Ananda’s wife replied to him that Kanak, the deceased had chased

Ananda. PW4- Dr. Durgeswar Borah who supported the findings and his opinion in Exhibit-2 (the postmortem report), the defence side cross-

examined him whereupon he deposed that ecchymosis can be developed also by falling on hard substance. PW8, Smti. Urmila Hazarika deposed that

after the commotion which had taken place at the house of the accused/appellant she went there and saw the deceased lying outside near the door.

PW10, Sri Khagen Saikia, the investigating officer who supported the fact that he recorded the statements of various witnesses but from his cross-

examination it is found that there was no contradiction of the statement of the PW 3 (a) to the effect that Ananda said that his maternal uncle Kanak

died by falling down and Ananda’s wife replied that Kanak had chased Ananda.

12.    From the evidence it is seen that it is fully established that the dead body of the deceased Kanak Hazarika was lying within the premises

of the house of the accused/appellant. If the evidence of PW3 (a) is considered it is also seen that there are two contradictory versions, one by the

accused/appellant Ananda that the deceased died by falling down and on the other hand, the wife of the accused person informed the said PW 3

(a) that the deceased Kanak Hazarika chased the accused person, Ananda. In the statement under Section 313 of the Cr.P.C. the accused/appellant

made his statement that the husband of the complainant was his maternal uncle. He used to visit his place frequently. That day he was lying on his

courtyard after consuming liquor. Then he called his neighbours. His maternal uncle used to consume liquor and cannabis. He died on his own. The

accused did not kill him. Except these statements he denied rest of the incriminating piece of evidence against him as put by the learned trial court.

The fact that the deceased died after a fall was taken as a defence by the accused/appellant and the onus of proving of the said fact lies on the

accused/appellant as per Section 106 of the Indian Evidence Act, 1872 inasmuch as on the face of the postmortem report which goes against the

defence, the said fact of death by falling down must be especially within the knowledge of the accused/appellant. The postmortem report shows there

were ligature marks around the neck. The learned trial court disbelieved the defence of the accused/appellant on the ground that ligature marks and

ecchymosis were observed on the neck of the victim. He failed to adduce any evidence in support of the stand taken by him. Under such

circumstances presumption goes against the accused until and unless the accused/appellant discharged his onus of proving the said fact which is

especially within his knowledge that such defence taken by the accused/appellant is true.

The postmortem report is very clear and specific. There are marks of ligature aroundthe neck, lungs are congested and blackish in colour and in

addition to that ecchymosis had already taken place and the cause of death being due to asphyxia owing to throttling, the point of suspicion causing the

death of the deceased which is homicidal in nature goes towards the accused/appellant and the circumstances clearly established the culpability of the

accused. In addition to that the dead body was within the premises of the house of the accused/appellant and he is supposed to give the explanation as

to how the dead body of the deceased was lying in his premises and as there is no explanation to that effect, considering the totality of the evidence on

record, we are unable to accept the submission of the learned Amicus Curiae and upheld the judgment and order of sentence passed by the learned

Sessions Judge, Nagaon against the accused/appellant.

In the result, the appeal is dismissed. We express our gratitude to the learned AmicusCuriae, Ms. Reetuja Dutta, in assisting this Court in

conducting the appeal and a sum of Rs.7,500.00 (Rupees seven thousand, five hundred) only be paid to the learned Amicus Curiae for rendering her

valuable service in assisting this Court in this Appeal.

Copy of the judgment be served on the accused/appellant through the Superintendentof Central Jail, Nagaon immediately.

Send back the LCR.