The case established the importance of circumstantial evidence, burden of proof, and the application of the last seen theory in establishing guilt.

JUDGMENT :

(S.P. Khaund, J.)

1. Heard Mr. N. Deka, learned Amicus Curiae for the appellant and Ms. B. Bhuyan, learned Addl. PP for the State of Assam.

2. This appeal is preferred u/s 374(2) of the Code of Criminal Procedure seeking defeasance of the Judgment & Order dated 12.07.2021 passed by the learned Additional Sessions Judge, Sivasagar in Sessions Case No. 35(S-N) of 2016 arising out of Nazira P.S. Case No. 202/2015 (corresponding G.R. Case No. 604/2015) convicting the appellant Sanjay Bhumij for the offence u/s 302 of the Indian Penal Code, 1860 (IPC for short) and sentencing him to undergo Imprisonment for Life and to pay a fine of Rs. 10,000/-with default stipulation.

3. The genesis of the case was that Asha Bhumij (hereinafter also referred to as the victim or deceased) who was married to Sanjay Bhumij (hereinafter referred to as the accused) was compelled to take shelter in her parental home as her husband i.e. the accused used to quarrel with her frequently. On 24.11.2015 at about 6 PM while Asha Bhumij wasreturning home after work, the accused pulled her from the road towards his house and after sometime she was found unconscious. Asha Bhumij was taken to the Tea Estate Hospital and the doctor declared her as dead. Her father Sri Deonath Garh, (hereinafter referred to as the informant) strongly suspecting that the accused had strangulated his daughter lodged an FIR with the police at Nazira PS. The informant claimed to have noticed marks of assault on his daughter’s face and neck and hesaw blood oozing out from her nostrils and ears.

4. The FIR was registered as Nazira P.S. Case No. 202/2015 u/s 302 IPC and the Investigating Officer (IO in short) embarked upon the investigation. The body of the deceased was forwarded for autopsy and the statements of the witnesses were recorded u/s 161 Cr.PC. On completion of investigation, charge-sheet was laid against the accused u/s 302 IPC.

5. On appearance of the accused, copies were furnished and the case was committed for trial. On commencement of trial, a formal charge u/s 302 IPC was framed and read over and explained to the accused. The accused adjured his guilt and claimed innocence.

6. To connect the accused to the crime, the prosecution adduced the evidence of 6 witnesses, including the Medical Officer (MO in short) and the IO. Two witnesses were however not cross-examined by the defence. The remaining witnesses were cross-examined by the defence to refute the charges.

7. On the incriminating circumstances arising against him, the statement of the accused under Section 313(1)(b) of the Cr.P.C was recorded. He denied the circumstances projected against him by the prosecution in its evidence and claimed to be innocent. He did not tender any evidence in defence.

8. After hearing the arguments advanced by the learned Addl.P.P. and the defence counsel and upon appreciating the evidence available on record the learned trial Judge, proceeded to convict and sentence the accused, as above, by the impugned judgment and order dated 12.07.2021, which is subject matter of challenge in this appeal.

9. Mr. N. Deka, the learned Amicus Curiae appearing for the appellant laid stress in his argument that this case suffers from a major discrepancy as the informant was not examined as a witness. The evidence of PWs-2, 3, 4 and 5 clearly reveals that the accused called them to his house informing them that his wife Asha Bhumij sustained injuries as she fell down from the bed. Had he been guilty of any offence, the accused would not have informed his neighbours about his wife’s condition. The accused made every endeavour to resuscitate his wife. It is also emphasised by the learned Amicus Curiae for the accused that the MO admitted in his cross-examination that except the bruise and abrasion found on his wife’s cheeks, no external injuries were detected during the post-mortem examination of the deceased. The MO also admitted that such injuries may be caused by haemorrhage due to a sudden fall