JUDGMENT & ORDER (CAV)

(M. Zothankhuma, J)

1. Heard Mr. H.R.A. Choudhury, learned Sr. Counsel assisted by Mr. I.U. Chowdhury, learned counsel for the appellant. Also heard Ms. B. Bhuyan, learned Sr. Counsel and Addl. P.P, Assam assisted by Ms. R. Das, learned counsel for the State respondent.

2. This appeal has been filed against the impugned Judgment dated 04/12/2024, passed by the learned Sessions Judge, Charaideo, Sonari, in Sessions (Cha) Case No.18/2019, by which the appellant has been convicted under Section 302 IPC, for having caused the death of his wife, by pouring kerosene over his wife and setting her on fire.

3. One ground of challenge made to the impugned judgment is that the deceased had told PW-6 that the appellant was innocent. The evidence of the independent witness (PW-6) is to the effect that he had gone to the hospital, where the deceased was undergoing treatment, wherein he was told by the deceased that the appellant was not guilty in relation to the deceased being set on fire.

4. The learned Sr. Counsel for the appellant also submits that though the evidence of the sister of the deceased (PW-2), in her examination-in-chief, is to the effect that the appellant husband had first strangulated the deceased and then poured oil and set her on fire, the same had been denied by her in her cross-examination. In the re-examination of PW-2, which had been done 4 ½ years later on 26/06/2024, with regard to the contradictory evidence given by PW-2 on 15/11/2019, PW-2 had stated that the appellant had poured kerosene on her deceased sister and set her on fire. The learned Sr. Counsel for the appellant submits that the above contradictory statements of PW-2 shows that PW-2 is not a credible witness and her evidence would have to be corroborated before her testimony can be relied upon. On the other hand, there is nothing to show that PW-6 was not a credible witness, as his evidence was not shaken or controverted during cross-examination. Thus, when there are two sets of evidence/views with regard to a particular fact, the evidence/view in favour of the accused would have to be accepted by the Court.

5. On the other hand, the learned Addl. P.P submits that the evidence of PW-2 having clearly proved that the appellant had set the deceased on fire, there was no infirmity with the decision of the learned Trial Court in convicting the appellant under section 302 IPC. Further, the evidence of the witnesses showed that the relationship between the deceased and the appellant, who were a married couple, was not smooth and there were frequent quarrels between them. Thus, there was motive for the appellant to have killed his wife. The learned Addl. P.P further submits that the appellant has not discharged his burden under Section 106 of the Evidence Act with regard to his knowledge, in relation to the death of the deceased.

6. We have heard the learned counsels for the parties.

7. The brief facts of the case is that the informant (PW-1), who is the brother of the deceased and the brother-in-law of the appellant, is to the effect that he submitted an FIR dated 08/09/2017 stating that the appellant and his deceased sister had married about 11 years ago. However, after about 2 years, the appellant began subjecting his sister to physical and mental torture over household issues. Around 10 pm on 31/08/2017, the appellant had slapped, kicked and punched his sister and also assaulted her with a bamboo stick. As a result, she sustained severe injuries. Moreover, the appellant poured kerosene oil on her body and set her on fire inside his house. Though his sister was taken to Assam Medical College and Hospital (AMCH), Dibrugarh, she breathed her last on 07/09/2017. He also stated that his younger sister (PW-2) also sustained injuries while trying to save the deceased. Pursuant to the FIR dated 08/09/2017, Sapekhati Police Station Case No. 78/2017 under section 302 IPC was registered. After charge sheet had been filed, the learned Trial Cour