Niranjan Majhi vs State of Assam

AM Bujor Barua, J

Heard Mr. B Baruah, learned Amicus Curiae appearing for the appellants and also Mr. M Phukan, learned Additional Public Prosecutor

representing the State of Assam.

The accused, Niranjan Majhi has preferred this appeal against the Judgment and Order dated15.11.2014 of the learned Additional Sessions Judge,

Jorhat in Sessions Case No.34(JJ)/2013, convicting the accused appellant under Section 302 of the IPC and sentencing him to undergo life

imprisonment and also to pay a fine of Rs.6000/-, in default, further rigorous imprisonment of 6(six) months.

The prosecution case in brief is that one Susen Murmu had lodged an ejahar on 23.07.2012before the Officer-in-Charge of Deberapara Police

Outpost under Mariani Police Station that at about 7.30 A.M., on 23.07.2012, his son-in-law Niranjan Majhi had chased his daughter, who was his

wife from his house to the house of Lafang Majhi at Nopam kheroni Gaon and had hit her on the left side of her forehead with a short legged stool

and caused death. Thereafter, the accused had left the place and on the road of Nopam village had hit Lalit Chetia, a resident of Gharpholia village, on

his head with a lathi, while he was coming home upon getting his paddy husked. After hitting Lalit Chetia, the accused straight away went to the house

of Tutu Majhi at Nopam Mura village and caused serious injury to his mother Bina Majhi by hitting her on the head.

The inquest report of Malati Majhi, shows grievous injuries on the forehead caused by bluntweapon with deformed face, while inquest report on

Bina Majhi showed severe injuries on the right side of the head with deformed face.

The learned Sessions Judge framed the charge against the accused that on or about 23.07.2012at about 7.30 A.M., he had first hit his wife Malati

Majhi with a wooden stool, which led to her instantaneous death and also assaulted his mother Bina Majhi and another person Lalit Chetia, both of

whom succumbed to their death as a result of the injuries inflicted by him and hence have committed the triple murder of his wife Malati Majhi,

Mother Bina Majhi and another person Lalit Chetia.

In our view, the three incidents of causing death to the wife Malati Majhi, mother Bina Majhi andanother person Lalit Chetia being separate

incidents, there ought to have been three separate charges. But it being too late in the day and the trial having proceeded on the premises of there

being one charge, the appeal is being proceeded by taking note of that the act on the part of the accused appellant in causing death to the deceased

persons are separate incidents, although there is only one charge framed against the accused incorporating all the three incidents.

The accused pleaded not guilty to the charge framed against him and claimed to be tried. Theprosecution examined 10(ten) witnesses, including the

informant, the Investigating Officer (IO) and the two Doctors, who had performed the post mortem on the deceased.Â

PW-1, Susen Murmu, stated that the accused is his son-in-law and at about 11A.M., on the givenday, some neighbours had informed him that the

accused had murdered his daughter. Upon getting the information, he went to the house of the accused and found his daughter dead. The witness

further stated that after killing his daughter, the accused went to the house of one Tutu Majhi, where he killed his mother Bina Majhi. He also stated

that he came to know that one more person was killed by the accused on his way. The witness also stated that he had lodged the ejahar, which is

exhibited as exhibit-1 and exhibit-1(1) is his signature. In cross-examination, the witness stated that he had not seen the incident.

PW-2, Suren Gogoi, stated that the brother of the accused Ganesh had informed him that theaccused had killed his wife and after killing her, he had

gone out on the road. Later on, he got the information that the accused had assaulted one more person and thereafter was informed that he had also

assaulted his mother in the house of one of his relatives. He stated that the accused was chased away by many people and he was caught. The

witness stated that the Police had seized one small wooden stool from the place of occurrence which is the material exhibit-1. Later on, when the

witness went to the place where the accused had assaulted his mother, he had seen that the mother was in an unconscious state and one bamboo log

was lying near her.

PW-3, Biman Gogoi, stated that while he was in the paddy field, he had seen the accusedcoming out of his house having one bamboo log in his

hand and when one Lalit Chetia, who was standing near a culvert had called him, the accused went near Lalit Chetia and suddenly hit him on his head

with the bamboo log and that the whole incident had taken place in front of him. The witness also stated that later he came to know that the accused

went to the house of Tutu Majhi and there he had assaulted his mother. He also stated that he came to know that the accused had killed his wife

Malati Majhi.

   In cross-examination, the witness to a suggestion had stated that it is not a fact that he did not state before the Police that he saw Lalit Chetia

calling the accused, whereupon the accused hit him on his head with a bamboo log.

To understand the reliability of the witness, who claims to be an eye witness to act of causing death to Lalit Chetia, the statement under Section 161

Cr.P.C. is examined. Under Section 161, the witness had stated that having learnt about the incident, they came and informed the Police about the

matter and immediately, thereafter, the Police came. The public had helped the Police to apprehend the accused. The witness, thereafter stated that

on being furious the accused had chased his wife to the house of his neighbour, Langfah Majhi and killed her there, by hitting with a wooden stool.

Thereafter, he looked for his mother in order to kill her and upon not finding her he went towards the house of Pradip @ Tutu Majhi. He also seriously

injured a pedestrian, Lalit Chetia, who was returning after husking rice at Gharpholia path. He also stated that he again attacked his mother with a

heavy bamboo stick and caused death to her.

PW-4, Ritul Gogoi stated that after hearing a hue and cry from the house of Tutu Majhi, he sawthe accused coming out of the house with a

bamboo log in his hand and saw him jumping over the fence. On seeing the accused running away, he went to the house of Tutu Majhi and saw that

Bina Majhi, the mother of the accused, was lying in the floor, bleeding profusely, with a grievous injury on her head. He stated that later on he heard

that the accused had killed his wife in his own residence and had also killed Lalit Chetia, who was a resident of the village.

    In cross-examination, the witness stated that it is not a fact that he had not stated before the

Police that he had heard a hue and cry from the house of Tutu Majhi and then saw the accused, Niranjan Majhi running away from the house with a

bamboo log. But in the statement under Section 161, the witness stated that on 26.09.2012, there was a hue and cry in the village since the morning

and a resident of Kheroni Basti, namely Niranjan, at first, attacked his wife and then upon chasing her to the house of Langfah Majhi, had killed her

there. Thereafter, the accused, went to the road of Nopam village and assaulted one person, and, subsequently, went to the house of Pradip Hadsa @

Tutu and killed his mother who was working there by giving blow with bamboo.

PW-7 Pradip Hasda states that having heard some hue and cry coming from his home, he wentto his home and saw that the accused Niranjan

Majhi was running away from there and the mother of the accused was lying on the floor with grievous injuries on her head.

In cross-examination, the said witness stated that it is not a fact that he had not stated before the police that he saw the accused running away from

the place of occurrence. The said witness in his statement under Section 161 Cr.P.C. before the police stated that the accused armed with a bamboo

stick came chasing his mother who had gone to his house for agricultural work and that he had severely assaulted her, as a result of which, she was

profusely bleeding.

PW-8 Mayurjit Gogoi, who was the Investigating Officer stated that he had sent Biman Gogoiand Ritul Gogoi before the Magistrate for recording

of their statements under Section 164 Cr.P.C.

  In cross, the witness states that PW-3 Biman Gogoi had not stated before him that Lalit Chetia had called the accused Niranjan Majhi. He also

stated that PW-4 Ritul Gogoi had not stated before him that he had heard some hue and cry from the house of Tutu Majhi and then saw the accused

jumping over the fence towards the paddy field and also that the said witness had seen the wife of the accused in pool of blood. It has also stated that

PW-7 Pradip Hadsa @ Tutu had not stated before him that he had seen the accused running away from the place of occurrence.

In the appeal, a stand has been taken that there were no eye witnesses to the incident and inthe circumstantial evidence that has been led the

chain of event is not complete to conclude beyond reasonable doubt that it is the accused who had committed the offence.

The prosecution on the other hand had taken the stand that the manner in which the injurieswere inflicted on the deceased shows that the same

were brutal in nature and therefore, a lenient view should not be taken in the matter.

It is taken note that the prosecution intends to project the PW-3 to be the eye witness and PW-4and PW-7 to be the witnesses who had seen the

accused within the vicinity of the place of occurrence and running way with a bamboo log in his hand. All other witnesses including the informant and

the witness who had written the ejahar in their own evidence claims to have heard that the accused had caused the death of the three deceased.

PW-3 Biman Gogoi claims that he had seen the accused giving the fatal blow to Lalit Chetia witha bamboo log when the deceased had called him

on the road. Apart from his statement on the fatal blow being given by the accused Lalit Chetia, the witness does not state anything about the blows

that were inflicted on the head of Malati Majhi and Bina Majhi. But when the statement of the said witness made before the police under Section 161

Cr.P.C. is examined, it is noticed that there is no such statement stating that he had seen the accused inflicting the fatal blow on the head of deceased

Lalit Chetia with a bamboo log. The said contradiction leads to a conclusion that the evidence of PW-3 claiming himself to be an eye witness is

unreliable.

PW-4 Ritul Gogoi as well as PW-7 Pradip Hasda had made statement in their depositions thatthey had seen the accused running away from the

place of occurrence with a bamboo log in his hand. But when such statement is examined in the context of their statements made before the police

under Section 161 Cr.P.C., it is noticed that there was no such statement that they had seen the accused running away from the place of occurrence

with a bamboo log in his hand. Further the PW-8, the Investigating Officer, in his cross-examination had stated that the said two witnesses had not

stated before him that they had seen the accused running away from the place of occurrence with a bamboo log in his hand. The statements of the

two witnesses are also contradictory to the evidence of PW-2 Suren Gogoi who had stated in his deposition that when he along with the police and

other people went to the place of occurrence of causing death to Bina Majhi, they had seen her in an unconscious state and had also seen one bamboo

log lying near her. The bamboo log having been seen by the PW-2 to be lying near the deceased person, the statement of the aforesaid two witnesses

that they had seen the accused running away from the place of occurrence with a bamboo log is disbelievable.

On a reading of the evidence on record, it is taken note of that the evidence does not reveal theexistence of any eye witness who had witnessed

the incident.

But the evidence on record reveals that the incident had occurred around 7.30 a.m. in themorning of 23.07.2012. The PW-2 Suren Gogoi, who is

the Gaonburah of the village had stated that the accused after assaulting the two persons was trying to flee away and he was chased and caught by

the people and at that time, the police arrived and arrested the accused. In his statement under 161 Cr.P.C. also the witness stated that the accused

was caught by the police with the help of the people of the locality. The said statement is also in conformity with the statement of PW-3 under Section

161 Cr.P.C.

From the said piece of evidence, it is established that the accused while he was trying to run away from the place of occurrence was caught by the

people of the locality.

Further it is also taken note of that the accused being the husband of the deceased Malati Majhiis ordinarily understood to have been at his place

of residence at around 7.00 a.m. in the morning, unless the accused in his defence under Section 313 Cr.P.C. takes a contrary stand.

    In his statement under Section 313 Cr.P.C., the accused had not taken a stand that he was not present in his house at the time of the

occurrence. Further in his statement under Section 313 Cr.P.C., the accused apart from stating that quarrel did took place between him and his wife,

he has said that he does not know anything about what has been alleged against him. Apart from a general denial of the questions put to him as

regards the evidence available on record, the accused has not taken any other stand.

In this respect, the law laid down by the Supreme Court in Trimukh Maroti Kirkan â€"vs- State ofMaharashtra reported in (2006) 10 SCC 681

would be relevant.

12.    In the case in hand there is no eye-witness of the occurrence and the case of the prosecution rests on circumstantial evidence. The

normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be

cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the

circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the

crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and

inconsistent with his innocence.

14.    If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan

and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish

the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside

over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public

duties. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate

extremely difficult to be led.

(b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him.

Where an offence like murder is committed in secrecy inside a house, the initial burden toestablish the case would undoubtedly be upon the

prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of

circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a

corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot

get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the

prosecution and there is no duty at all on an accused to offer any explanation.

A somewhat similar question was examined by this Court in connection with Section 167 and178-A of the Sea Customs Act in Collector of

Customs, Madras & Ors. v. D. Bhoormull AIR 1974 SC 859 and it will be apt to reproduce paras 30 to 32 of the reports which are as under :

32.    On the principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person concerned; and if he falls

to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the

prosecution or the Department would rebut the initial presumption of innocence in favour of that person, and in the result prove him guilty.

In a case based on circumstantial evidence where no eye- witness account is available, there isanother principle of law which must be kept in

mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an

explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete.

Where an accused is alleged to have committed the murder of his wife and the prosecutionsucceeds in leading evidence to show that shortly

before the commission of crime they were seen together or the offence takes placed 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.

From the aforesaid pronouncement, as well as the other decisions relied therein, the followingcan be culled out:-

i) in a case where there is no eye witness and the offence takes place inside the privacy of a house where the assailant has all the opportunity to

plan and commit the offence at the time and circumstances of their choice, it would extremely difficult for the prosecution to lead evidence under the

strict principle of circumstantial evidence.

ii) a judge presides over a criminal trial not only to see that no innocent man is punished but also to see that a guilty man does not escape and both

are public duties.Â

iii) the law does not enjoin a duty on the prosecution to lead evidence which would be eitherimpossible or extremely difficult to be led.

iv) where an offence like murder is committed in secrecy inside a house, under Section 106 ofthe Evidence Act, there will be a corresponding burden

on the inmates of the house to give a cogent explanation as to how the crime was committed and the inmates of the house cannot get away by simply

keeping quiet and offering no explanation by relying upon the premise that the burden to establish its case lies entirely on the prosecution.

v) the underlying principle of Section 106 of the Evidence Act, is that the burden to establish thefact is cast on the person concerned and if he fails to

establish or explain the facts, an adverse inference of the facts may arise against him, which coupled with the presumpting evidence adduced by the

prosecution would rebut the initial presumption of innocence favour of the accused and in the result would prove him guilty.

vi) in a case of circumstantial evidence where no eye witnesses are available, when anincriminating circumstance is put to the accused and the

accused either offers no explanation or offers an explanation which is found to be untrue, the same becomes an additional link in the chain of

circumstance to make it complete.

vii) when an accused is alleged to have committed the murder of his wife and the prosecutionsucceeds a leading evidence to show that the offence

took place in the dwelling home where the husband also normally resides, it has been consistently held that if the accused does not offer any

explanation as to how the wife had received the injuries or offers an explanation which is found to be false, there is a strong circumstance that the

accused is responsible for commission of the crime.

In the instant case the evidence on record reveals that the occurrence of causing death to MalatiMajhi had occurred in her dwelling home, where

the accused also resided. The accused in his defence under section 313 Cr.P.C. has failed to state any circumstance as to how the brutal injury was

inflicted upon his wife nor he has stated that he was not present in the house at the time of occurrence. On the other hand the accused has stated that

there used to be frequent quarrel between him and his wife.

In the circumstance, we are of the view that the principle enunciated by the Supreme Court inTrimukh Maroti Kirkon Case, as indicated above,

would be applicable against the accused and a conclusion that the accused had inflicted the brutal injury upon Malati Majhi and caused her death can

be arrived.

Further the evidence on record also reveals that the accused was caught by the public alongwith the police when he was running away after the

occurrence of the three incidents and the accused in his defence has failed to explain any circumstance which required him to run away from the

place of occurrence, if he had otherwise not committed the acts of inflicting the brutal blows on the three deceased person, which resulted in their

deaths. The silence of the accused to that effect also leads to a conclusion of his involvement in the incidents of inflicting the three brutal blows on the

three deceased person which had caused their death.

It is taken note of that the post-mortem reports in respect of the three deceased shows thefollowing injuries:-

    Malati Majhi

    Injuries: (1) A lacerated injury of 1.5 x 1 cm x brain deep size present on the forehead, middle part with surrounding contusion of 8 x 8 cm

and depression of the contused area. Underlying frontal bone is found fractured, with fragmentation and depression of the fragments. Underlying

meninges found torn and lacerated. Brain is found lacerated and oozing out through the injury.

Blood clots are found adherent to the wound margins which are resistant to washing with running water. Bina Majhi

    Injuries: (1) A stitch wound of 5 cm length and closed by 7 silk sutures present on the forehead, right side, extending from the midline

towards the outer aspect of right eye.

(2) A stitch would of 2 cm length and closed by 3 silk sutures, vertically placed, present in the forehead, middle part, 1 cm to the right of and below

injury No.1.

On dissection, the underlying frontal bone found fractured with depression of fragments and radiating fractures. Underlying subdural heamorrhage

present in the frontal lobe area. Brain found contused in the frontal lobe area.

Lalit Chetia

(1) One lacerated injury present back side of the (Rt) ear size 7 x 1 cm x bone deep, stitchwith 8 No. of black nylon.

(2) One lacerated injury present over the Lt. eyebrow. Size 6 cm x 1 cm x bone deep, stitch with 6No. black nylon.Â

All the injuries as revealed from the post-mortem report are of the same nature and inflicted inthe same manner, in more or less same area of the

body, i.e. head. The nature of the injuries caused also reveals that it was done in a brutal manner with great force and the head had been bludgeoned

with a blunt weapon. The proximity of the time within which all the three injuries were inflicted, the nature and manner in which the injuries were

caused indicates that it was done by the same person and also the aspect that the accused was found and caught by the public and the police while he

was running away from the place of occurrence after the third incident, are also an indication that it was the accused who had committed all the three

offense.

    The brutality of the offence committed in a serial manner by striking the victims on their head with a great force also is an indication of the

intent of the accused, which can be said to be a rarest of rare case, where death sentences can also be awarded.

The learned Sessions Judge having awarded the sentence of life imprisonment, it can also belooked from the point of view that the life sentence

awarded by the learned Sessions Judge can be in the nature of commuting a death sentence to that of a sentence of life imprisonment. In such cases,

the Supreme Court has clarified the law in its pronouncement in Swamy Shraddananda (2) Alias Murali

Manohar Mishra â€"vs- State of Karnataka reported (2008) 13 SCC 767 wherein, in paragraph 72, 73 and 94, it has been held as under:-

    “72. Before us it was submitted that just as the Court could not direct the appropriate government for granting remission to a convicted

prisoner, it was not open to the Court to direct the appropriate government not to consider the case of a convict for grant of remission in sentence. It

was contended that giving punishment for an offence was indeed a judicial function but once the judgment was pronounced and punishment awarded

the matter no longer remained in the hands of the Court. The execution of the punishment passed into the hands of the executive and under the

scheme of the statute the Court had no control over the execution.

    73. In our view, the submission is wholly misconceived and untenable and the decision in the case of Prem Raj has no application to the

issue under consideration.

    94. In light of the discussions made above we are clearly of the view that there is a good and strong basis for the Court to substitute a

death sentence by life imprisonment or by a term in excess of fourteen years and further to direct that the convict must not be released from the

prison for the rest of his life or for the actual term as specified in the order, as the case may be.â€​

In view of the aforesaid conclusion, as well as the law laid down by the Supreme Court, theappeal by the accused appellant fails and the

conviction and sentence imposed by the trial court is upheld. Accordingly, the sentence of life imprisonment meted out by the trial court upon the

accused appellant is upheld by further providing that considering the brutal manner in which the offences were committed and also considering the

circumstance in which the brutal injuries were inflicted, the sentence of life imprisonment shall continue till the accused appellant continues to live.

    In terms of the above, appeal is dismissed.