Manoj Baishya vs State Of Meghalaya.

The appellant original accused has approached this Court by way of aforesaid appeal challenging the judgment and order dated 23-04-2019 in Sessions Case No. 18 of 2014, where under he has been convicted for an offence punishable under Section 302 IPC and sentenced to suffer imprisonment for life and also fine of Rs. 5000/- (Rupees Five thousand) only and in default to undergo additional rigorous imprisonment for two months.

The FIR which set criminal law in motion was registered on 5th September, 2010 at the instance of Shri. Mono Banai before the Williamnagar Police Station as Williamnagar P.S. Case No. 39(9) 2010 under Section 302 IPC, to the effect that on 04-09-2010 at about 11:30 a.m., the niece of the informant, Smti. Babli Koch was killed by her husband i.e. the appellant/ accused Shri. Manoj Baishya in his residence at P.W.D. Colony, Williamnagar.

After registration of the aforesaid FIR, investigation was taken up by IO, WPSI V.Ch. Marak and after completion of the investigation, charge-sheet was filed on 02-12-2010 against the appellant accused for an offence punishable under Section 302 IPC.

After hearing the state defence counsel and prosecutor, in terms of provision 227 Cr.P.C., charge was framed by the Sessions Court against the accused person on 10-03-2015 for committing an offence punishable under Section 302 IPC. The charge was read over and explained to the appellant accused to which he pleaded not guilty and claimed to be tried.

In order to prove the case against the appellant/accused, prosecutor examined seventeen witnesses. After the evidence of the prosecution witnesses, appellant/accused was examined by the Court in terms of provision 313 Cr. P.C., wherein he denied his involvement for the alleged crime. The appellant/accused however, did not adduce any witnesses.

After appreciating the evidence on record, learned Sessions Judge came to the conclusion that offence against the appellant/accused punishable under Section 302 IPC is proved and accordingly as stated above, sentenced him to suffer life imprisonment.

We have heard Mr. R.Kar, learned counsel for the appellant/accused and Mr. A.Kumar, learned AG for the state.

Mr. R.Kar, learned counsel for the appellant/accused submitted that there is no eye witnesses to the incident and the prosecution has failed to prove the motive for the crime and the entire prosecution case is based on the edifice of circumstantial evidence. Mr. R.Kar further submitted that in a case based on circumstantial evidence, there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and prosecution must show that in all human probability the act must have been done by the accused. Mr. R.Kar also submitted that though the prosecution examined altogether seventeen witnesses, there are contradiction in their evidence. In this regard he submitted that PW-1, Shri. Mono Banai deposed that he received a phone call regarding the death of the victim and filed the FIR on the same day, but the appellant/ accused was already at the police lockup by then as one more FIR had been filed before that by Smti.G.R.Marak, but neither the said witness was examined by the prosecution nor her FIR was proved or exhibited in Court. He also submitted that the post mortem was performed on 05-09-2010 but collection of viscera is shown on 04-09-2010, therefore there is a serious lapse on the part of investigation and collection of viscera cannot be prior to the conduct of post mortem. Mr. R.Kar further submitted that the Sessions Court failed to appreciate the fact that non collection of finger prints of the accused had adversely affected the accused and only on that ground, conviction of the present accused is bad in law. Mr. R.Kar lastly submitted that the evidence adduced by the prosecution in the present case is not enough to convict the appellant/accused with the crime in question and on overall consideration of evidence as a whole, the prosecution has not been able to prove the charges beyond reasonable doubt and as such, he is entitled to benefit of doubt.

Mr. A.Kumar, learned AG supported the impugned judgment and order. He submitted that it is true that there are no eye witnesses to the incident in question and prosecution case entirely depends upon circumstantial evidence. He submitted that prosecution by leading cogent evidence has established following circumstances against the appellant accused namely;

(i) Death of the deceased was homicidal.

(ii) Appellant/accused had motive to kill the deceased, his wife.

(iii) Appellant was last seen together with the deceased in his residential quarter at P.W.D. Colony, Williamnagar.

(iv) Conduct of the accused immediately after the commission of the crime.

(v) Non-explanation of the facts which were within the knowledge of appellant/accused regarding the death of the victim i.e. his wife under Section 106 of the Evidence Act, 1872.

(vi) False denial by the appellant/accused to the incriminating circumstances put to him under Section 313 Cr.P.C.

Learned AG submitted all the incriminating circumstances which are established beyond doubt by the prosecution are sufficient to come to the conclusion that it was the appellant/accused who committed murder of his wife.

The law relating to appreciation of the evidence in a case based on circumstantial evidence is reiterated by the Apex Court in G.Parshwanath v. State of Karnataka (2010) 8 SCC 593. In paragraphs 22, 23 and 24, the Apex Court observed as follows:

"22. The evidence tendered in a court of law is either direct or circumstantial. Evidence is said to be direct if it consists of an eyewitness account of the facts in issue in a criminal case. On the other hand, circumstantial evidence is evidence of relevant facts from which, one can, by process of intuitive reasoning, infer about the existence of facts in issue or factum probandum. In dealing with circumstantial evidence there is always a danger that conjecture or suspicion lingering on mind may take place of proof. Suspicion, however, strong cannot be allowed to take place of proof and, therefore, the court has to be watchful and ensure that conjectures and suspicions do not take place of legal proof. However, it is not derogation of evidence to say that it is circumstantial. Human agency may be faulty in expressing picturisation of actual incident, but the circumstances cannot fail. Therefore, many a times it is aptly said that "men may tell lies, but circumstances do not".

In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts.

In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused, where various links in chain are in themselves complete, then the false plea or false defense may be called into aid to lend assurance to the court."

In the light of the above principles governing a case based on circumstantial evidence, we propose to consider the circumstances relied upon by the prosecution.

(i) Death of the deceased wife of the appellant/accused was homicidal - The prosecution examined Dr. Ameen A. Momin as PW-14. He deposed that he has conducted the post mortem examination on the dead body of Smti. Babli Koch, wife of the appellant/accused. Death body was received on 05-09-2010 at 7 a.m. which was brought by WPSI V.Ch. Marak and UBC 74 E.Hynniewta of Williamnagar Police Station. He further deposed that during examination, the death body was found with external injuries as follows:

(i) Abrasion on the lower left mandibular area.

(ii) Abrasion on the right lateral neck.

(iii) Bruises all over the neck (anterior).

(iv) Bruises on the back of the neck.

He found the brain congested, mouth closed and the tongue was slightly swollen. This witness opined that the probable time of death of the deceased was 18-20 hours before completion of autopsy which was done at 9 a.m. on 05-09-2010. He also deposed that all injuries are ante mortem and cause of death is asphyxia due to strangulation. PW-14, Dr. Momin opined that all the injuries collectively sufficient to cause death means the application of force on the neck will interfere with respiration resulting in lack of oxygen in air and there will be more collection of carbon dioxide resulting in unconsciousness or death. PW-14 proved the post mortem report which was exhibited at Ext-5.

The prosecution examined PW-15, Smti. Newverlyne Nongkynrih, an FSL Expert. She deposed that she received the exhibits which were packed and sealed in a cartoon box. After verification that the box was not tampered and intact, she opened the box in front of her senior colleague and one laboratory assistant and found six small plastic container, each containing the following listed materials namely;

(i) Small portion of a liver, marked in the division as Tox-734/10A.

(ii) Small portion of heart, marked in the division as Tox-734/10B.

(iii) Small portion of kidney, marked in the division as Tox-734/10C.

(iv) Small portion of cotton swab containing dry blood stain, marked in the division as Tox-734/10D.

(v) Small portion of lungs, marked in the division as Tox-734/10E.

(vi) Small portion of stomach wall, marked in the division as Tox-734/10F.

She has further deposed that she did the examination of the above materials and after thorough and careful examination, the exhibits stated above gave negative result for common poison. PW-15 proved the FSL report which is exhibited at Ext-6. The deposition of PW-15 concludes that the death of deceased Babli was not by consuming poison and the suicide theory was ruled out.

In the light of the evidence of PW-14, Dr. Momin and Pw-15, FSL Expert, in our considered opinion, the prosecution beyond doubt proved that the death of deceased Babli, was homicidal.

(ii) Appellant/accused had motive to kill the deceased, his wife - In order to prove motive, prosecution relied upon the evidence of PW-1, PW-16 and PW-17.

PW-1, Shri. Mono Banai is the first informant and the deceased was his niece. He has deposed that his niece and the appellant/accused had love marriage and it was a good relationship at the initial stage but later on appellant/accused started drinking and becoming an alcoholic and started to torture his niece. He further deposed that he knows about this because his niece came home due to torture by the appellant/accused. He testified that his niece was frequently tortured but it was only once that she came home.

PW-16, Smti. Jayanti Saha was a friend of the deceased Babli. She deposed that on 4th August, 2010, the deceased Babli came from Williamnagar to her parent's place at Tura. This witness is a neighbor of the parents of deceased Babli. She further deposed that she alongwith deceased Babli went to buy bangles from the Bazar on 5th August, 2010. On returning home, deceased Babli told this witness that appellant/accused (her husband) used to torture her and that he had hit her with a heavy object on the right side of her head for which there was swelling. This witness also testified that deceased Babli showed her the swelling and she found that it was on the right side of her head. This witness further told deceased Babli to inform her parents, but she refused to report to her parents. The deceased Babli told this witness that she will talk to the appellant/accused (her husband) by herself and solve the matter amicably. Next day, on 6th August, 2010, deceased Babli left for Williamnagar. The version of PW-16 is corroborated by the statement of the appellant/accused under Section 313 Cr.P.C. in answer to Question No. 51. The appellant/accused has admitted that deceased Babli had gone to Tura on 4th August, 2010.

PW-17, SI V.Ch. Marak, IO has deposed that the close neighbours of deceased Babli and the appellant/accused were examined and they stated that the appellant/accused is an alcoholic and use to beat deceased Babli by torturing her and chase her to go away. PW-17 testified that before the incident in question also, the appellant/accused chased the deceased Babli by throwing all her clothes outside and that night, she halted in her relative's place at P.W.D. Colony. This witness further told that the appellant/accused used to beat the deceased Babli seriously and that they used to argue about the appellant's drinking, however, the appellant/accused never listened.

The evidence of PW-1, PW-16 and PW-17 shows that the relationship between the appellant/accused and deceased Babli (his wife) was strained and acrimonious and thereafter appellant/accused subjected the deceased Babli to frequent torture. Thus, the prosecution successfully proved the circumstance that appellant/accused had motive to kill deceased Babli, his wife.

(iii) Appellant was last seen together with the deceased in his residential quarter at P.W.D.Colony, Williamnagar - In order to prove this circumstance, the prosecution examined PW-6, Shri. Pollendro Banai. PW-6 is a friend of the appellant/accused since school days. This witness deposed that on the date of incident, at about 9 a.m. he was having drinks along with the appellant/accused, one Mr. Pathak, a police constable, one quilt maker and one labourer, Rachael Sangma in the house of overseer, Dilip Bhaskar. He further deposed that they were drinking for more than one and a half hours. From the quarter of the overseer, Dilip Bhaskar, first Mr. Pathak left, then the quilt maker left and then Rachael left and thereafter PW-6 and the appellant/accused left. The distance between the quarter of the overseer and the appellant/accused's quarter is about 50 ft away only. He further testified that after half an hour, he was called by the appellant/accused to his quarter who told him that his wife had consumed phenyl. He testified that when he reached the quarter of the appellant/accused, only the appellant/accused was there and the wife of the appellant/accused i.e. deceased Babli could not talk anymore. He saw her lying unconscious on the floor, he also saw phenyl bottle near her body. He further testified that the appellant/accused told him to arrange for an auto rickshaw, he went to take the auto rickshaw and thereafter, they took deceased Babli to the hospital but in the hospital the Doctor declared her dead, so they brought her back. It was Saturday and as there was no work, PW-6 and the appellant/accused again started drinking. He testified that he and the appellant/accused use to drink together quite often and while drinking, the appellant/accused never share about his family life. The evidence of PW-6 is required to be considered alongwith the evidence of PW-14, Dr. Momin. PW-14 testified that he completed the autopsy by 9:00 a.m. on 05-09-2010 and the probable time of death of deceased Babli could be between 18 to 20 hours before the autopsy.

The evidence of PW-6, Pollendro Bana,i conclusively prove the fact that the appellant/accused was alone with his wife, deceased Babli in his P.W.D. quarter when she was murdered. The fact that the relationship of the appellant/accused with his wife, deceased Babli was strained would, in the absence of any cogent explanation by him point to his guilt.

(iv) Conduct of the accused immediately after the commission of the crime - Under Section 8 of the Evidence Act, 1872, motive, preparation, previous or subsequent conduct of any person and offence against whom is the subject of any proceeding is relevant. Illustration 'e' of Section 8 of the Evidence Act, 1872 reads as follows:

"(e) A is accused of a crime.

The facts that, either before or at the time of, or after the alleged crime, A provided evidence which would tend to give to the facts of the case an appearance favourable to himself, or that he destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant."

In the light of the above provision, conduct of the appellant/accused immediately after the incident in question becomes relevant. While asserting upon the conduct of the appellant/accused as one of the incriminating circumstance, the prosecution relied upon the evidence of PW-2 and PW-6.

PW-2, Shri. Ananda Banai was the uncle of the victim Babli Koch. He deposed that he was informed over phone at about 2:30 p.m. by the appellant/accused that his wife, deceased Babli had consumed phenyl and he was told to come fast as she was serious. Thereafter, PW-2 arranged one ambulance and he reached Williamnagar at 3:30 - 4:00 p.m. When he reached Williamnagar, he was told that the victim had been taken to Williamnagar Civil Hospital. PW-2 specifically deposed that the appellant/accused informed that deceased Babli had consumed phenyl but he found that there were strangulation marks on her neck.

PW-6, Shri. Pollendro Banai also testified that when he reached the quarter of the appellant/accused, he was told that his wife Babli had consumed phenyl. PW-6 also saw a phenyl bottle near the body of the deceased Babli and deceased Babli was lying unconscious on the floor.

The evidence of PW-2 and PW-6 will have to be considered along with the evidence of PW-15, FSL Expert. PW-15 as stated earlier, has conclusively found that death of deceased Babli was not by consuming poison and FSL Expert ruled out the theory of suicide.

The evidence on record conclusively shows that the death of deceased Babli was homicidal, however, appellant/accused planted phenyle and told the witnesses that deceased Babli committed suicide by consuming phenyl. The appellant/accused tried to create a scene favourable to him. The conduct of the appellant/accused in this regard, immediately after the incident in question is one of the link in the chain of circumstances proved against him.

(v) Non-explanation of the facts which were within the knowledge of appellant/accused regarding the death of the victim i.e. his wife under Section 106 of the Evidence Act, 1872 - In Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681, the Hon'ble Apex Court made an observation in following terms:

"22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."

The above observation of the Apex Court is squarely applicable to the present facts and circumstances of the case inasmuch as the appellant/accused and deceased Babli were husband and wife and were staying together in the P.W.D. quarter. The relation between them were strained. The appellant/accused and the deceased Babli were in the matirmonial house together and the explanation given by the appellant/accused that the deceased Babli consumed phenyl and thereby committed suicide is found to be false.

The false explanation by the appellant/accused that deceased Babli committed suicide is an additional link to the chain of circumstances proved against him,

(vi) False denial by the appellant/accused to the incriminating circumstances put to him under Section 313 Cr.P.C. - The Apex Court in Geetha v. State of Karnataka (2000) 10 SCC 72 held thus:

"8. When all these incriminating circumstances were put to the appellant in her examination under Section 313 CrPC she merely stated that they were false and failed to give any other explanation. The prosecution evidence which has been found reliable proves that the answers given by the appellant in her Section 313 statement were really false. The appellant did not explain how the dead body and articles belonging to the deceased were found from her house. She denied that they were found from her house. This being a case of circumstantial evidence, this false denial assumes importance as it would supply a missing link in the chain of circumstances."

In the present case also when all the above incriminating circumstances were put to the appellant/accused in his examination under 313 Cr.P.C., he merely stated that they were false and did not give any other explanation. The prosecution evidence which in our opinion is reliable, proves that the answer given by the appellant/accused in his statement under 313 Cr.P.C. were really false. In the present case also, false denial would supply a missing link in the chain of circumstances.

We now propose to deal with the argument of Mr. R.Kar, learned counsel for the appellant/accused. The contention of Mr. R.Kar that prosecution failed to prove motive cannot be accepted as we have since held that on the basis of the evidence of PW-1 and PW-16, the relationship of the appellant/accused with his deceased wife was acrimonious and strained. His next submission that post mortem was performed on 05-09-2010 but with regard to collection of viscera, the date is shown as 04-09-2010, therefore, there is serious lapse on the part of the investigation cannot be accepted in the light of the evidence of the Investigating Officer, PW-17 who has deposed that post mortem was not conducted on 04-09-2010 as it was night time, therefore it was conducted on the next day, early in the morning. Thereafter, Dr. Ammen A. Momin, PW-14 handed over the collected viscera to PW-17. The contention of Mr. R.Kar regarding non-collection of finger prints of the appellant/accused had adversely affected the prosecution case also cannot be accepted, as the same by itself would not negate the circumstance which have proved against appellant/accused beyond all reasonable doubt. The contention of Mr. R.Kar that before registration of FIR, the appellant/accused was already at the police lock-up is also without substance and cannot be accepted in the light of the evidence of IO that appellant/accused was detained on the hue and cry of his neighbours. In the light of the incriminating circumstances which are established by the prosecution by leading cogent evidence, in our considered view therefore, submission of Mr. R.Kar that in the chain of evidence prosecution has not been able to prove the charges beyond reasonable doubt and as such he is entitled to the benefit of doubt cannot be accepted.

In our considered opinion, all the incriminating circumstances were established by the prosecution beyond doubt by leading cogent evidence. They were sufficient to come to the conclusion that it was the appellant/accused who had committed murder of his wife, deceased Babli. Hence, we do not find any merit in the appeal. Appeal stands dismissed.