IMPORTANT POINT
Statement recorded under section 164 Cr.P.C. cannot be treated as substantive evidence but same can only be used for the purpose of contradicting or corroborating the witness.

JUDGMENT (CAV)

Suman Shyam. J.—This Criminal Appeal filed under Section 374(2) of the Code of Criminal Procedure is directed against the judgment and order dated 290.12.2017 passed by the learned Additional District & Sessions Judge, Hojai, Sankardev Nagar in connection with Sessions Case No.448/2013. By the impugned judgment and order dated 20.12.2017, the sole appellant has been convicted under section 302 of the Indian Penal Code (IPC) for committing the murder of his wife Asiya Begum and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs.10,000/-, and in default thereof, to undergo rigorous imprisonment for another six months.

2. The prosecution case, as unfolded during trial, is that the accused/appellant is the husband of the victim Asiya Begum. On 03.07.2013, a quarrel took place between the accused and his wife Asiya whereafter, the accused had killed his wife by hacking her with a “dao”. The victim had died immediately. The accused was then seen loitering and shouting at the bank of a pond with a “dao” in his hand.

3. Upon receipt of telephonic information from Md. Fakar Uddin (PW-2) G.D. Entry No.39 dated 03.07.2013 was made by the Officer-in-Charge of Debasthan Police Outpost coming under Murajhar Police Station. Thereafter, the matter was informed to the Officer-in-Charge, Murajhar Police Station. On 03.07.2013, Md. Tayab Ali, i.e. the elder brother of the accused had lodged an ejahar with the Officer-in-Charge, Murajhar Police Station informing him that due to a quarrel that took place between his younger brother Amir Hamja and his sister-in-law Mustt. Asiya Begum, his brother had killed his wife inside his own house by a sharp weapon. On receipt of the ejahar, Murajhar P.S. Case No.133/2013 was registered under section 302 of the IPC and the matter was taken up for investigation. Upon completion of investigation, police had laid charge-sheet against the accused under Section 302 of the IPC. The accused had pleaded innocence. As such, the matter went up for trial.

4. In order to bring home the charge, the prosecution side had examined as many as 12 (twelve) witnesses. After recording the evidence of the prosecution side, the statement of the accused was recorded under Section 313 of the Cr.P.C. The accused had denied all the incriminating circumstances put to him and had also declined to adduce evidence in his defense.

5. At the very outset, it would be significant to note here-in that the statements of Mustt. Afiya Begum (PW-7) i.e. the sister of the accused, Mustt. Afiya Khatun (PW-8) i.e. the wife of the informant and Muksidul Islam (PW 9) i.e. the son of the deceased had been recorded under Section 164 of the Cr.P.C. wherein, all of them had stated that they had seen the accused person hack his wife to death with a dao. However, during their deposition before the court, the PWs- 7, 8 and 9 had not stated the said fact as a result of which, PWs-7 and 8 were declared as hostile witnesses. Likewise, PW-1 also did not depose before the Court the fact stated in the F.I.R. to the effect that the accused had killed his wife Asiya Begum inside his own house by a sharp weapon as a result of which, he was also declared as a hostile witness.

6. Taking note of the evidence brought on record which included the testimony of the doctor (PW-4), who had conducted the post-mortem examination and the evidence of PW-11 Ms. Mili Hussain, Judicial Magistrate First Class (JMFC), who had recorded the statements of PWs-7, 8 and 9 under Section 164 of the Cr.P.C. the learned trial court had held that the murder charge brought against the accused was established beyond all reasonable doubt. The learned trial court was also of the view that since the occurrence took place inside the house, there was a duty upon the accused under section 106 of the Evidence Act, 1872 to explain the circumstances under which his wife had suffered fatal injuries but the accused had failed to offer any explanation. Taking n