Raju Nunia, Laika vs State Of Assam

[1] This appeal from Jail challenges the judgment and order, dated 27.06.2014, passed by the learned Sessions Judge, Cachar, Silchar in Sessions Case

No. 19/2012, whereby the appellant Sri Raju Nunia stands convicted for the offence under Section 302 of the Indian Penal Code (IPC) and has been

sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 20,000/-, in default, to suffer simple imprisonment for 6 (six) months.

Accused Ramzanam Nunia and Mohan Nunia were also put to trial alongwith the present accused-appellant but the learned trial court has acquitted

them by the impugned judgment.        Â

[2] The prosecution case is that, on 05.06.2009, one Sri Bhola Nunia lodged a written FIR with the In-Charge, Ghungoor Police Outpost, alleging that

his deceased daughter Mania Nunia’s husband, Chota Nunu Nunia, died about 6 (six) years back although she continued to live in her

husband’s residence. He also alleged that while her deceased daughter continued to stay in the residence of her husband, she developed an illicit

relationship with accused No. 2, (named in the FIR), her brother-in-law. The informant further alleged that on the advice of the other accused persons,

named in the FIR, the accused No. 2 entered into the room of his deceased daughter and after beating her, strangled her to death with a gamocha.

According to the informant prior to death of his said daughter there was a village meeting wherein Narayan Nunia, Bahagban Lal Kahar, Ram

Singhasan Nunia, Suchan Singh were present to settle the dispute between the accused No. 2/Raju Nunia and his deceased daughter.

[3] On receipt of the FIR, on the above facts, through the aforesaid Police Outpost, the Silchar Police Station registered a case under Sections

449/302/34 of the IPC, and on completion of investigation, a charge-sheet was laid against the accusedappellant alongwith Ramzanam Nunia and

Mohan Nunia for commission of offences under Sections 449/302/34 of the IPC.

[4] On receipt of the case, on being committed to it, the learned Sessions Judge framed a formal charge against the accused-appellant and the co-

accused under Sections 449/302/34 of the IPC to which they pleaded innocence and claimed to be tried. Therefore, the trial commenced.

[5] In order to substantiate the charges, prosecution examined 6 (six) witnesses including the Investigating Police Officer and the Medical Officer. At

the closure of prosecution evidence, the incriminating materials were put to the accused-appellant and the co-accused persons. They took the plea of

total denial and pleaded innocence. They also declined to adduce any evidence in their defence.

[6] Having heard the arguments, the learned trial court delivered the impugned judgment, convicting and sentencing the accused-appellant and

acquitting the other two accused persons, as aforesaid.

[7] We have gone through the records of the learned trial court and examined the evidence as well as the impugned judgment.

[8] We have also heard Mr. Jogesh Chandra Roy Choudhury, learned Amicus Curiae for the accused-appellant as well as Mr. PP Baruah, learned

Public Prosecutor, appearing for the State of Assam.

[9] PW1, Bhola Nunia, is the father of the deceased Mania Nunia. He deposed that her daughter was given in marriage to Chota Nunu Nunia about

15-16 years ago. Chota Nunu Nunia died about 4-5 years back but even after the death of Chota Nunu Nunia the deceased continued to live in the

house of her deceased husband. PW1 also deposed that Mania Nuina became pregnant while living with accused-appellant Raju Nunia. This accused-

appellant is the brother of the deceased husband of his deceased daughter. Thereafter, a village arbitration was held wherein Mania Nuina and her

three children were given in the custody of accused-appellant Raju Nunia. PW1 alleged that accused-appellant Raju Nunia alongwith Mohan Nunia

and Ramzanam Nunia strangled his daughter to death. In cross-examination, this PW1 stated that he suspects that the accused-persons, including the

accused-appellant, killed his daughter Mania Nunia.

[10] PW2, Bihari Lal Nunia, is the brother of the deceased and his evidence is identical to that of PW1, Bhola Nunia.

[11] PW3, Pradip Nunia, deposed that after the death of her husband, Mania Nunia used to live with her brother-in-law, Raju Nunia, and in a village

meting it was decided that Raju Nunia would marry Mania Nunia. The evidence which he has led about the death of Mania Nunia is hearsay, and

hence, need not be discussed. In crossexamination, PW3 denied the suggestion that no village meeting ever took place.

[12] The evidence of the doctor who performed the post-mortem examination of the deceased would be discussed, slightly later, at relevant time.

[13] PW5, Ram Saran Nunia, is the maternal uncle of deceased Mania Nunia. Reiterating the version of PW1 and PW2, PW5 also deposed that he

came to know from deceased that Raju Nunia had caused her pregnancy. Thereafter, two village meetings were held and the accused-appellant Raju

Nunia was asked in the village meeting to take care of the deceased and her children. He further deposed that after a week of the second meeting,

the accused persons killed Mania Nunia. PW5 further deposed that he had accompanied the Police and the Executive Magistrate in the residence of

Mania Nunia where the accused-appellant Raju Nunia confessed that he had killed Mania Nunia by strangulating her. He exhibited the seizure list,

Ext.-4, whereby a gamocha was seized from the place of occurrence and also exhibited his signature in the inquest report, Ext.2, prepared by the

Executive Magistrate. This PW5 was not cross-examined at all by the defence on material aspects. The cross-examination of this witness does not

relate to evidence led by him in his examination-in-chief.

[14] Having embodied the evidence on record it would now be proper to appreciate the evidence in the light of relevant laws.

[15] The accused-appellant, in his examination under Section 313 of the Cr.PC, took a plea that Mania Nunia had eloped with a Muslim boy, named

Rafique, who impregnated her. A meeting was held and she was brought back and he was asked to keep her to preserve the family name. He

pleaded that Mania Nunia committed suicide by hanging with a Gamocha herself which he had held loose.

[16] Now, since there is no direct evidence as to who caused the death of the deceased it is necessary to first ascertain whether the death of Mania

Nunia was suicidal or homicidal.

[17] PW4, Dr. B.C. Roy Medhi, a Professor of Forensic Science Medicine at Silchar Medical College, conducted the post-mortem examination on the

deceased Mania Nunia. Amongst the findings recorded by the PW4, the finding relevant to the facts before us is reproduced as follows:-

Injury:- ........On the neck one transversely placed ligature mark (pressure abrasion) present around the neck below the level of thyroid cartilage,

present in front and both sides of neck, 30 X 2.5 cm, and on back side the mark was not visible. The ligature mark as dry, broad and faintly

marked and parchmentized.

18]Â Â Â Â Â Â Â Â Â Â Â Â Later, in the same report Ext.-1, PW4 records a finding that cause of death is asphyxia as a result of ligature

strangulation on the neck. The ligature mark and injuries on neck and upper lip were antemortem and homicidal in nature. The deceased was pregnant

at the time of death and duration of pregnancy was approximately 5/6 months.

[19] In Modi’s Medical Jurisprudence and Toxicology the differences between hanging and strangulation are give in tabulated form, two of them

being as follows:-

Hanging

Ligature mark- Oblique, non-continuous placed high up in the neck between the chin and the larynx, the base of the groove or furrow being hard,

yellow and parchment-like.

Strangulation

         Ligature mark- Horizontal or transverse continuous, round the neck, low down in the neck below the thyroid, the base of the

groove or furrow being soft and reddish.

 HangingÂ

Scratches, abrasions and bruises on the face, neck and other parts of the body-

Usually not present.

 “Strangulation

Scratches, abrasions fingernail marks and bruises on the face, neck and other parts of the body- Usually present.â€​

[20] It will be seen that findings of PW4, recorded after the post-mortem examination of deceased, leaves no manner of doubt that the death of Mania

Nunia was nothing but homicidal and she was strangulated first and later shown to be hanging.

[21] Since there is no direct evidence linking the accused-appellant to the death it would be necessary to look into the circumstances which the

evidence on record presents.

[22] In this regard, the learned trial court has enumerated certain circumstances to record a finding of guilt against the accused-appellant. The

circumstances are as follows:-

i. The deceased died due to asphyxia resulting from ligature strangulation andsuch death was antemortem and homicidal in nature.

ii. The murder of the deceased took place in her house and there is no evidenceto indicate otherwise.

iii. The deceased and the accused-appellant Raju Nunia were residing in thesame house at the time of occurrence and no other adult person except

the children of the deceased resided there.

iv. The deceased was pregnant of 5/6 months duration at the time of her death,which pregnancy was caused by Raju Nunia and he was ordered in the

village Bichar to take the deceased in his custody, and therefore, he had motive to commit murder. Even if the version of accused Raju Nunia

regarding causing of pregnancy by a Muslim boy is taken into account the same also supplies a motive to accused Raju Nunia to cause her death as

already discussed earlier.

v. The accused Raju Nunia in his statement recorded under Section 313 of theCr.PC stated that the deceased committed suicide by hanging with a

gamocha, which he let loose after discovering her hanging in the morning. The aforesaid version of accused-appellant Raju Nunia is totally belied by

the medical evidence which establishes homicidal death by ligature strangulation. Giving a false statement in defence is a circumstance that goes

against the accused persons and provides a missing link. (Referred; Anthony D’Souza & Ors. â€" vs- State of Karnataka, reported in 2003 Cri LJ

434).Â

[23] In the case of Jaharlal Das â€"vs- State of Orissa, reported in (1991) 3 SCC 27, the Hon’ble Supreme Court reiterated the principles of

circumstantial evidence as follows:-

i. the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; ii. those circumstances should be

of a definite tendency unerringly pointing towards the guilt of the accused; iii. the circumstances, taken cumulatively, should form a chain so complete

that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should be

incapable of explanation of any other hypothesis than that of the guilt of the accused.

[24] As to the circumstances, pointed out by the learned trial Judge, we believe that there are many circumstances which have not been established by

any cogent evidence.

[25] Firstly, there is no proof that accused-appellant Raju Nunia caused pregnancy of deceased Mania Nunia. The witnesses deposed that they

believe that appellant Raju Nunia had impregnated Mania Nunia and hence there was a village meeting to settle this dispute. In the face of denial by

the accused-appellant that he had impregnated the deceased there was a burden on the prosecution to prove this fact by at least probable evidence.

Thus, we are confronted with two views, one proposed by the prosecution and one given by the accusedappellant. We are of the considered opinion

that the evidence as to pregnancy of deceased by the accused-appellant is not sufficient.

[26] Secondly, the learned trial court has recorded that accused-appellant, in his statement under Section 313 of the Cr.PC, stated that the deceased

committed suicide by hanging with a gamocha, which he let loose after discovering her hanging in the morning. Since the aforesaid version of

accused-appellant Raju Nunia is totally belied by the medical evidence which establishes homicidal death by ligature strangulation, as such the learned

trial court held that the accused-appellant gave a false statement. Reliance in this regard was placed on the case of Anthony D’Souza & Ors.

â€"vs- State of Karnataka, reported in 2003 Cri LJ 434.

[27] The case of Anthony D’Souza (supra) is entirely different than the facts of the present case. In Anthony D’Souza (supra) the

appellants were charged with the offence of dacoity with murder. There were incriminating circumstances otherwise also linking the appellants therein

for committing the offences alleged. There were four incriminating circumstances against the appellants therein and coupled with these circumstances

the conduct of the appellants in giving false answers in their examination under Section 313 of the Cr.PC was taken into account.

[28] The case of Anthony D’Souza (supra) does not lay down a proposition that dehors independent and incriminating circumstances a false

answer in the examination under Section 313 of the Cr.PC can be the sole basis of conviction of the accused. The relevant observation in Anthony

D’Souza (supra) is reproduced below:-

“14.................. In their examination under Section 313 Cr.PC the accused denied the prosecution story in toto. They denied that lorry accident had

taken place. They also denied to have received any injuries. In short, in their Section 313 statement they completely denied the established facts and

offered false answers. By now it is a well-established principle of law that in a case of circumstantial evidence where an accused offers false answer

in his examination under Section 313 against the established facts, that can be counted as providing a missing link for completing the chainâ€​.

[29] In the present case, there is absolutely no evidence providing motive for murder of the deceased. If it is assumed that accused-appellant had

impregnated the deceased and was asked by villager to take her with him, it cannot form the basis of any motive of murder in the absence of any

circumstances that accused-appellant stands to gain something by killing the deceased.

[30] The other circumstances recorded by the learned trial Judge is that at the time of death, the deceased and the accused-appellant were residing

together. Contrary to what has been observed there were two more persons prosecuted for the same offence, namely, Mohan Nunia and Ramzanam

Nunia and these two persons were also staying in the same compound. Hence, there is no evidence that the deceased and the accused-appellant were

residing in the same house.Â

[31] We, therefore, find that there are no cogent and unequivocal circumstances which could link the accused-appellant with the death of Mania

Nunia.

[32] Apprehending the predicament likely to arise in the cases based on circumstantial evidence, the Hon’ble Supreme Court in the leading case of

Hanumant, Son of Govind Nargundkar â€"vs- Raojibhai, Son of Somabhai Patel, reported in AIR 1952 SC 343, struck a note of caution in the

following words:-

“In dealing with circumstantial evidence there is always the danger that conjecture or suspicion may take the place of legal proof. It is therefore

right to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn

should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused.

Again, the circumstances should be of a conclusive nature and tendency, and they should be such as to exclude every hypothesis but the one proposed

to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with

the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.â€​Â

[33] The present case is such that the circumstances, which are the basis of conviction of the accused-appellant, do not justify a conviction of the

accused-appellant, for the reasons stated above, and accordingly, the impugned judgment requires interference.

[34] The accused-appellant is, accordingly, acquitted of the charge under Section 302 of the IPC, on benefit of doubt, and set him at liberty forthwith.

[35] This Court records its appreciation for the assistance rendered by learned Amicus

Curiae, Mr. Jogesh Chandra Roy Choudhury. Learned Amicus Curiae be paid an amount of Rs. 7,000/-, as remuneration.

[36] Send a copy of this Judgment to the Superintendent, Central Jail, Silchar, Cachar for release of the accused-appellant immediately. Release order

be issued immediately.

[37] Send down the LCR alongwith a copy of the judgment.