IMPORTANT POINTS
Not crying at death of husband is not indicative of the wife being guilty.
Section 313 is not simply a part of audi alteram partem. It is a valuable right of accused to establish his innocence and fair trial.
Court is duty bound u/s 313(4) to adequately consider the defence of the accused taken under Section 313 Cr.P.C. and to either accept or reject the same for reasons specified in writing.
Unlike the prosecution, accused not required to establish his defence beyond all reasonable doubt. Accused has only to raise doubts on a preponderance of probability.

JUDGMENT :

Navin Sinha, J.

Leave granted.

2. The appellant is the wife of the deceased convicted under Section 302 I.P.C. and sentenced to life imprisonment with fine of Rs.1,000/- and in default, imprisonment for one month.

3. The deceased resided along with the appellant and his minor daughter CW1, Miss Puja Hazarika, aged about 9 years, in the tenanted premises belonging to PW1 Manoj Kumar Deka, PW2 Dipen Deka and PW3 Bhrigumoni Deka, who are brothers. The appellant is stated to have assaulted the deceased in the intervening night of 10.05.2013/11.05.2013. PWs. 1, 2 and 3 are stated to have heard noises and on going there, found the deceased with head injury attributed to a fall, but that the deceased was otherwise alright. They were unable to take him to the hospital because of rains and the unavailability of an ambulance. According to the postmortem report proved by PW6, Dr. Ritu Raj Chaliha the deceased had the following injuries on his person :-

(i) Chop wound of size 11 cm x 2 cm x muscle deep present on left side of cheek 6 cm medial tragus and 1 cm above angle of mandible.

(ii) Chop wound of size 9 cm x 2 cm x muscle deep present back of occipital region.

(iii) Chop wound of size 4 cm x 2 cm x muscle deep present on left side of forearm.

(iv) Laceration of size (5 x 4) cm present over left wrist joint on posterior aspect.

(v) Chop wound of size (4 x 1) cm x muscle deep, present over temporal region on right side.

(vi) Chop wound of size (6 x 2) cm of muscle deep present over back of scapula.

(vii) Fracture of temporal bone on both sides.

All injuries were ante mortem and caused by moderately heavy sharp cutting weapon and homicidal in nature.

4. The Trial Court and the High Court held that the present was a case of circumstantial evidence. The last seen theory establishes the presence of the appellant with the deceased at night. Her unnatural conduct because she was not crying, she was the assailant of the deceased.

5. Mr. Singh, learned counsel for the appellant submitted that the courts below have erred in holding that the links in the chain of circumstances stood established leading to the only inescapable conclusion of the appellant being the assailant and no other hypothesis of innocence being possible. PW6 has deposed that the injuries were caused by a moderately heavy sharp cutting weapon such as a dao, and that the fracture of the temporal bone may have been caused by a moderate heavy weapon. The recovery from the place of occurrence, as proved by PW7 S.I. Nilomani Malakar, is of an ordinary knife used for cutting betel nut, one feet long with a bent sharp point. Chop injuries were not possible with the same. The alleged knife was not even shown to PW6 for eliciting opinion if the injuries could have been caused by the same.

6. Miss Diksha Rai, learned counsel for the State submitted that the appellant was last seen with the deceased in the room, confirmed by CW1. The appellant has failed to offer any explanation of the circumstances as to how the death occurred at night. Her unnatural conduct in not even weeping was also noticed by PW7. The knife used for assault, and blood soaked clothes of the deceased have also been recovered.

7. We have considered the respective submissions, the orders of the courts below, as also the evidence available on record. Normally this court under Article 136 of the Constitution, would be reluctant in appeal to interfere with the concurrent findings of two courts by re-appreciating the facts and evidence. But in an appropriate case, if this court finds that there has been erroneous consideration and appreciation of facts and evidence, leading to miscarriage of justice, this court is duty bound to ensure that ultimately justice prevails. It is a well established principle of criminal jurisprudence that several accused may go free, but an innocent person should not be punished. In Anant Chintaman Lagu v. State of Bombay, (1960) 2 SCR 460 this court observed as follows :-

“16. Ordinarily, it is not