Point of Law: If a person is last seen with the deceased, in that case regarding the death of the deceased, he must offer an explanation which is probable and satisfactory. If he does so, then it will be held that he has discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, it will be considered that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act.

JUDGMENT :

Heard Mr. P. Goswami the learned amicus curie appearing for the appellant. Also heard Ms. B. Bhuiyan the leaned Additional Public Prosecutor for the State.

1. This is a jail appeal u/s 385 of the Cr.P.C. whereby, the judgment and order dated 06.02.2015, passed by the learned Sessions Judge, Kamrup, Amingaon in Sessions Case No. 435/2014, is under challenged. By the impugned judgment the appellant is convicted u/s 302 of the IPC.

2. On 03.09.2014, Sri. Swadhin Rabha (PW-2) had lodged one FIR before police stating that his elder sister Rashmi Kalita (the deceased) was married to the appellant and during the period of one year before filing the FIR, the appellant had physically tortured her. According to the informant, the appellant had demanded dowry from the deceased and as she failed to comply with his demand, he had killed her at 3 a.m. in the previous night. In the FIR, it has been alleged that the parents of the appellant and one Smt. Nijora Kalita were also involved in the said incident.

3. On the basis of the said FIR, police registered Chaygaon P.S. Case No. 285/2014. After that, police started investigation.

4. The dead-body of the deceased was sent for post-mortem examination. Doctor (PW-1) found the following injuries upon the dead-body of the deceased:

(1) One continuous ligature mark of size 2.5 cm in breadth, and 31 cm in length, present encircling the neck, over the thyroid cartilage, which is transversely present. On destruction contusion of the neck muscles in mid-line in the front of neck from above the thyroid cartilage and over it. Hyoid bone is intact.

(2) Contusion of size 3 x 2 cm over right side of the neck, 5 cm below ramus of mandible and 7 cm to right of midline.

Cranium and spinal canal:

1. Scalp contusion of size 2 cm x 2 cm in right temporalis muscle radish in colour.

2. Scalp contusion size 4 cm x 3 cm over left frontal eminence yellow in colour.

3. Scalp contusion, size 2 cm x 2 cm in occipital area over the occipital protuberance.

Membranes congested.

5. Doctor (PW-1) opined that the deceased died due to asphyxia as a result of ligature triangulation during life time and the death is homicidal in nature. The PW-1 further opined that all the injuries found the dead-body of the deceased were antemortem and were caused by blunt impact.

6. On conclusion of investigation, police filed the charge-sheet against the appellant u/s 304(B)/302 of the IPC. The trial Court framed the charges u/s 304(B)/302 of IPC. On being read over the charges, the appellant pleaded not guilty and claimed to be stand trial.

7. During the trial of the case, the prosecution side examined as many as eight witnesses.

8. In his examination u/s 313 of the Cr.P.C. the appellant has claimed that on the day of the occurrence, he was absent from his house as he had spent that night in the house of his aunt. He further stated that at about 2/2.30 a.m. his brother Maheshwar Kalita called him over phone and told him that a big incident had happened in his house and therefore he should immediately returned home. The appellant has disclosed that when he reached home, his father told him that the deceased had committed suicide by hanging herself.

9. The appellant did not adduce any evidence. Therefore, on the basis of the prosecution evidence, the trial Court found the appellant guilty u/s 302 of the IPC only. He was acquitted from the charge u/s 304(B) of the IPC on benefit of doubt.

10. We have carefully gone through the prosecution evidence.

11. The first prosecution witness is Dr. Amarjyoti Patowari (PW-1). He has conducted the post-mortem examination upon the dead-body of the deceased in his evidence he has proved the post-mortem report as Ext.1.

12. In his cross-examination, PW-1 has stated that apart from contusions on the neck and the ligature mark, there were three contusions in the scalp which were caused at different times. PW-1 has further stated that the scalp injury no. 1 and no. 3, were caused just before death and scalp injury no. 2