Point of Law : It will be almost impossible for the prosecution to establish an offence when it has occurred within the private confines of which except for the person charged, there is no other person present.

JUDGMENT :

N.Kotiswar Singh, J.

Heard Mr. A. Tiwari, learned Amicus Curiae appearing for the appellant. Also heard Ms. B. Bhuyan, learned Senior counsel as well as Additional Public Prosecutor, Assam appearing for the State/respondent No.1.

2. This is an appeal from jail.

3. The present appeal has been preferred against the judgment and order dated 22.06.2018 passed by the learned Sessions Judge, Bongaigaon in Sessions Case No.114 (BNGN)/2014 arising out of G.R. Case No.445 of 2014 by which the appellant has been convicted under Section 302 IPC and was sentenced to undergo rigorous imprisonment for life with fine of Rs.5,000/-(Rupees five thousand) only and in default of payment of fine to undergo rigorous imprisonment for further 3(three) months.

4. This is a case involving death of the wife of appellant within the four walls of the house and as such, there was no eye witness except the presence of the appellant in the place of occurrence.

5. An F.I.R. was lodged on 30.05.2014 by one Aminul Islam Molla, the brother of the deceased Musstt. Jamful Bibi before the New Bongaigaon Police Patrolling Post, New Bongaigaon, Bongaigaon stating that at around 7 P.M. on 29.05.2014 his elder sister Musstt. Jamful Bibi had quarreled over some domestic matter in their residence and in the fit of anger the appellant, Md. Fatik Ali strangled her with the saree which she was wearing and on coming to know about the incident on the next morning, the complaint was lodged.

6. After registration of the F.I.R., the necessary investigation was carried out and on conclusion of the investigation, the appellant was charged under Section 302 IPC for having committed the offence of murder of the deceased on 29.05.2014 at 7 P.M.

7. The prosecution examined as many as 16 (sixteen) witnesses and also adduced other evidences.

8. The appellant pleaded not guilty to the same and in his statement recorded under Section 313 Cr.P.C., the appellant while denying murder of the deceased, admitted that there was a quarrel between him and his deceased wife and that he had hit her once during the quarrel. However, he claimed to have no knowledge under what circumstances she died.

Learned Amicus Curiae appearing for the appellant submits that the incident had occurred in the fit of anger without any premeditation and as such, at best it can be a culpable homicide not amounting to murder and punishable under Section 304 IPC Part II.

9. We will examine the aforesaid submissions advanced. We will examine the evidences on record on the basis of which the learned Trial Court gave the finding. We will also examine the reasons and conclusion arrived at by the learned Tribunal in convicting the appellant under Section 302 IPC before we consider the plea taken before us in this appeal.

10. As mentioned above, as many as 16 (sixteen) witnesses were examined.

11. PW1, Aminul Islam Mollah is the informant who had stated that there used to be frequent quarrel between his sister Jamful Bibi and brother-in-law, Fatik Ali, the appellant. He stated that on the day of occurrence his sister and brother-in-law had quarreled. He also stated that though he was not an eye witness and not present at the time of occurrence , on the day of occurrence, on hearing hue and cry when he went to the house of the deceased, he saw that his elder sister was lying dead on a bed inside the house. He also saw cut injury on the forehead and strangulation mark on the neck of his elder sister. He also stated that the police had seized the saree which was used to commit the crime.

In the cross-examination, PW1 admitted that he was not at the place of occurrence but was in his father-in-law’s house and as such, he was not an eye witness. However, he also stated that on earlier occasion, his sister had lodged a complaint against them over a landed property which however, was reconciled subsequently.

12. Since there was no eye witness account and death had occurred within the four walls of the domestic house of the appellant and