Point of Law: Conviction upheld - Offence of Murder – Delay in filing FIR - Burden of proving the plea of alibi is clearly on the defence side.

JUDGMENT :

Suman Shyam, J.

Heard Mr. A. R. Sikdar, learned counsel appearing for the appellant. We have also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam, representing the State. Mr. M. I. Hussain, learned counsel is present on behalf of the informant/respondent No.2.

2. This appeal is preferred against the judgment dated 26.07.2017 passed by the learned Sessions Judge, Bongaigaon, Assam in connection with Sessions Case No.25(M)/2016 whereby, the sole appellant was convicted under Sections 302/201 of the Indian Penal Code (IPC) for committing the murder of his wife and also for destruction of evidence so as to screen the actual offender. Consequently, the learned Sessions Judge, Bongaigaon had sentenced the appellant to undergo rigorous imprisonment for life and also to pay a fine of Rs.10,000/- with default stipulation for committing the offence punishable under Section 302 of the IPC. The appellant was also sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.2000/-with default stipulation for committing the offence punishable under Section 201 of the IPC.

3. The prosecution case, in a nutshell, is that the appellant, who is the husband of the deceased, had an affair with another woman whom he wanted to marry and therefore, with a view to fulfill his aforesaid desire the appellant had inflicted grievous injury on the body of his wife Sabia Khatun leading to her death. Thereafter, without informing the police, the appellant, with the help of his near and dear ones had hastily buried the dead body so as to remove the evidence of homicidal death of his wife.

4. On 10.10.2015, Md. Amir Ali had lodged an ejahar with the Officer-in-Charge of Manikpur Police Station reporting the incident. In the F.I.R. the name of the appellant has been mentioned as the accused person. Further the F.I.R. has also mentioned that the incident had taken place on 09.10.2015. On receipt of the aforesaid ejahar Manikpur P.S. Case No.151/2015 was registered under Sections 302/201 of the IPC and the matter was entrusted to Inspector Dilip Dutta for carrying out investigation. On completion of investigation the I.O. had submitted charge-sheet against the accused, based on which, the learned trial court had framed charge against the appellant under Sections 302/201 of the IPC. The charge was read over and explained to the accused/appellant to which, he had claimed innocence. As such, the matter went up for trial.

5. The prosecution case is entirely based on circumstantial evidence. In order to bring home the charge the prosecution had examined as many as 12 witnesses including the doctor who had conducted post-mortem examination on the dead body (PW-10), the Executive Magistrate who had held the inquest on the dead body (PW-11) and the I.O. (PW-12) who had conducted investigation and submitted charge-sheet. The case of defence side was one of total denial. In his statement recorded under Section 313 of the Cr.P.C. the appellant/ accused had not only denied his involvement but had also taken the plea of alibi by stating that on the intervening night he was not at home but he had gone to the house of his uncle Mazid Mandal. On returning to his house he went out for fishing at around 2.00 a.m. and then he went to Nagari Bazar where his younger son had come to meet him at about 6.45 a.m. and had informed him about the death of his wife. Thereafter, he had gone home.

6. On conclusion of trial, the learned Sessions Judge had found the appellant guilty of committing the offence punishable under Sections 302/201 of the IPC and sentenced him as aforesaid.

7. Assailing the impugned judgment dated 26.07.2017 Mr. Sikdar, learned counsel for the appellant, has argued that there are material contradictions in the statements of the witnesses. Since there is no eye-witness to the occurrence and therefore, the prosecution was bound to establish the charge brought against the accused/appellant beyond reasonable doubt by adducing circums