Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Gau) 832

IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
MICHAEL ZOTHANKHUMA, MALASRI NANDI, JJ.
Fatima Khatun W/o. Md. Salman Ali – Appellant
Versus
The State Of Assam – Respondent
Crl.A(J) 18 of 2020
Decided on : 02-08-2023

Advocates:
Advocate Appeared:
For the Appellant : MR A TIWARI, AMICUS CURIAE

Point of Law: Burden of proof under section 106 Indian Evidence Act, 1872, falls upon accused to prove his innocence.

Headnote:
Criminal Procedure Code, 1973 - Section 374 – Indian Penal Code, 1860 - Section 302 - Indian Evidence Act, 1872 - Section 7, 106 - Murder offence – Appeal against conviction - Appellant seeks to challenge judgment and order passed by learned Additional Sessions Judge, whereby accused/appellant was convicted under section 302 IPC – When victim was playing near well, she accidently fell into well and died, for which she had been blamed by her mother-in-law. Para 39.
Finding of the Court: Present case is based on circumstantial evidence and as per settled legal position, in a case based on circumstantial evidence, all incriminating circumstances must be supported by reliable and clinching evidence and circumstances proved must form a chain of events so complete, as would permit no conclusion other than one of guilt of accused – Court find that prosecution has failed to prove offence against accused/appellant beyond reasonable doubt - Only on basis of last seen evidence, accused cannot be convicted for offence of murder, keeping in view facts of this case - Conviction and sentence recorded by learned Additional Sessions Judge against accused/appellant in connection with S.C. under Section 302 IPC is hereby set aside.
Result: Appeal allowed.

JUDGMENT :

Malasri Nandi, J

Heard Mr. A. Tewari, learned AmicusCuriae. Also heard Ms. B. Bhuyan, learned Public Prosecutor for the State/respondent.

2. By this appeal filed under Section 374 Cr.P.C., the appellant seeks to challenge the judgment and order dated 25.06.2019 passed by the learned Additional Sessions Judge, Hojai in S.C. No. 19(N)/2017, whereby the accused/appellant was convicted under section 302 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/-, in default, to further undergo simple imprisonment for two months.

3. The case of the prosecution is that the informant who is the grandmother of the deceased lodged an FIR on 17.01.2017 before the in-charge Nakhuti Police Outpost, stating interalia that her four years old granddaughter of her youngest son Hussain Ali had been missing from her house since 15.01.2017. After failing to trace her out even after extensive search, suspicion arose in her mind against her daughter-in-law, i.e. the accused/appellant. On questioning her daughter-in-law with the help of the public, her daughter-in-law confessed that she had thrown her into a kutcha well located at No.3 Khring Khring Chadhayaghar village. It is also stated that on 17.01.2017 at around 7/8 a.m., the informant along with some people of her village, went to Nakhuti police out post and informed them about the incident. She along with police personnel then went to the said kutcha well at Khring Khring village and when the accused/appellant showed them the well, they saw the dead body of her granddaughter floating in the water inside the well. The appellant confessed that she took the deceased and killed her by throwing her into the well.

4. On receipt of the FIR, a GD Entry was recorded vide GDE No. 252 dated 17.01.2017 and forwarded the same to O/C, Lumding P.S. for registering a case under proper section of law and accordingly, a case was registered vide Lumding P.S. Case No. 14/2014 under Section 302 IPC. Subsequently, the investigating officer started the investigation. During investigation, the investigating officer visited the place of occurrence and recorded the statement of the witnesses. The inquest was done on the dead body of the victim and after inquest, the dead body of the deceased was sent for postmortem examination to the Civil Hospital, Nagaon.

5. After completion of investigation, charge-sheet was submitted against the accused/appellant under Section 302 IPC before the SDJM, Hojai. As the offence under Section 302 IPC is exclusively triable by the court of Sessions, the case was committed accordingly.

6. During trial, on appearance of the accused/appellant before the court of Sessions, charge was framed under Section 302 IPC which was read over and explained to the accused/appellant, to which she pleaded not guilty and claimed to be tried.

7. To prove the guilt of the accused, the prosecution examined 8(eight) witnesses and exhibited 5(five) documents. On the other hand, the accused/appellant did not choose to adduce any evidence in her defence. After completion of trial, the statement of the accused/appellant was recorded under Section 313 Cr.P.C. wherein incriminating materials found in the evidence of the witnesses were put to her, to which she denied the same and pleaded her innocence.

8. In her statement under Section 313 Cr.P.C., the accused/appellant stated that prior to the incident, a quarrel took place between her and her mother-in-law i.e. the informant. On the next day, the victim accidently fell into the well and died. However, her mother-in-law accused her of killing the victim. On the day of the quarrel, her husband assaulted her by demanding Rs.20,000/-and asked her to bring the said money from her parents. Due to assault, she went to her parents house. In connection with the instant case, the police sent her to jail hajot and during her tenure to stay in jail, her husband married another woman. Her husband and her mother-in-law, after making a plan to