Sanju Rabidas vs State Of Assam And Anr

A.M. Bujor Barua, J Heard Mr. L.R. Mazumder, learned counsel for the appellant. Also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam and Mr. U. Choudhury, learned counsel appearing for the informant respondent No.2.

An ejahar was lodged by Motilal Rabidas before the In-Charge of Baskandi Police Outpost of Lakhipur Police Station inter alia stating that at around 9.00 a.m on 12.09.2015 he came to know from a person over phone that his niece Rita Rabidas was killed in the house of the accused persons named therein and upon receiving the information when he went to the house of the accused persons, he found that his niece was lying dead and there were several injuries on her body.

We have taken note of that the FIR as regards the said ejahar was entered by the Officer in Charge of Lakhipur Police Station at about 6.00 p.m on 12.09.2015. The FIR further reveals that there was a General Diary entry bearing No.254 dated 12.09.2015 at about 2.30 p.m as regards the occurrence. We further take note of that the investigating officer PW-6 had stated that around 9.30 am he had received a phone call from one Ananda Kumar Singh PW-3 to the effect that one person of Badribasti had been physically assaulted by dao resulting in grievous injuries and the accused was threatening and chasing the other people by brandishing a dao and accordingly GD Entry No.248 dated 12.09.2015 was entered which was proved as Exbt-7 and thereafter, the investigating officer proceeded towards the place of occurrence. The said evidence of PW-6 is also corroborated by PW-3 who had informed the police and had deposed in his deposition that at about 8.30 am of the given day, he received a telephonic information from PW-1 Sibu Rabidas stating that his sister-in-law had been killed and that the accused with a dao in his hand had not allowed anyone to enter the house. PW-3 deposed that accordingly he informed the police of Baskandi Police Outpost over phone and the police came. As regards the GD Entry No.248 dated 12.09.2015, the same appears to be consistent with the evidence of the investigating officer as well as that of PW-3 which again has been proved as Exbt-7. Accordingly, we take the GD Entry No.248 to be the First Information Report and proceeded accordingly.

GD Entry No.248 dated 12.09.2015 being the First Information Report has further relevance from the point of view that in the post mortem report, which is exhibited as Exbt-6, the timing of the examination is recorded to be 2.30 p.m on 12.09.2015. If the post mortem examination through the police was conducted at 2.30 pm of 12.09.2015, the FIR anyway could not have been lodged at 6.00 pm on the same date. Consequently, the ejahar entered at 6.00 p.m would be h it by Section 162 CrPC.

In the aforesaid circumstance, the accused Sanju Rabidas was charged under Section 302 IPC for having committed the offence of murder of Rita Rabidas by intentionally causing her death. In course of trial, Sibu Rabidas the informant PW-3 in his deposition in examination-in-chief stated that the accused used to live with his wife and his mother and in the morning of the following day when he went to the place of occurrence to provide warm water to his mother the accused had prevented him from entering the house. But when he forcefully entered the room of his mother, he noticed that his sister-in-law had not woken up. Accordingly, when he entered the room of his sister in law he found that she was lying dead on the bed and some injury marks on her chest were noticed. The witness further deposed that when he asked the accused as to how the deceased had died, the accused replied that he had killed his wife. In cross, a suggestion put to the witness that he had falsely stated that the accused had confessed before him was denied. Without there being any further cross-examination the statement of PW-1 that the accused had made the extra judicial confession before him that he had killed his wife remains unrebutted. PW-2 who was informed about the incident over phone, had deposed that the accused along with his mother and wife resided in one house. PW-2 further deposed that when he had asked the villagers as to how the deceased Rita Rabidas had died they told him that the accused along with four others have killed her. But we have taken note of that the said piece of evidence is heresy evidence by PW-2 and as such would be inadmissible.

The witness also denies a suggestion that his evidence that the accused along with his wife and the mother were living safely from his other brothers i.e. PW-1 and others was false.

PW-3 who was the ward member of Ward No.3 stated that at 8.30 am, he received a telephonic information from PW-1 to the effect that when he entered the house of the accused to offer tea to his mother, he noticed that his sister in law was lying with injuries and was suspected to have been killed. After sometime, the witness proceeded to the place of occurrence and noticed a crowd including PW-1 Sibu Rabidas who had informed him that the accused with a dao in his hand had not allowed anybody to enter the house. Accordingly, the police of Baskandi outpost was informed over phone and thereafter the police came. When he entered the room along with the police he saw that the accused was lying on the bed with the mark of injuries on her face and chest and she was already dead. PW-4 in his deposition stated that on the morning of the occurrence PW-1 came to his house and informed that the accused had killed his wife and thereafter when he proceeded towards the house of the accused, he noticed that the accused was armed with lathi and dao and had not allowed anyone to enter his house. Later on, when the police came, the witness also entered the house of the accused and found that his wife was lying dead with marks of cut injury on her body.

PW-6 in his deposition stated that at about 9.30 a.m on 12.09.2015, when he was in charge of Baskandi police outpost under Lakhipur police station, he had received a telephonic information from PW-3 Ananda Kumar Singh a ward member to the effect that one person of Badribasti had physically assaulted with a dao causing grievous injuries upon his wife and the accused person was threatening and chasing the other person by brandishing a dao. Accordingly, GD Entry No.248 dated 12.09.2015 was entered and thereafter, the witness proceeded to the place of occurrence along with several police officials. Upon reaching the place of occurrence, the witness found that the accused Sanju Rabidas was roaming in the courtyard and also found the dead body of his wife lying in her bed with injuries. Later on after re-examination, PW-6 exhibited the GD Entry No.248 dated 12.09.2015 as Exhibit-6.

PW-7 Dr. Netramoni Kataki had conducted the post mortem examination in his deposition stated the following injuries to have been found in the body of the deceased:-

"(1) Lacerated wound bite mark of size varying from 4 cm X 2 cm to 3 cm X 1.5 cm present over both right and left breast all over the surfaces except in the lateral surface which are tissue deep. Margins are abraded and surrounding tissues contused.

(2) Lacerated wound present obliquely over left cheek of size 3 cm X .5 cm X 01 cm lateral to left angle of mouth which is muscle deep. Margins are abraded, surrounding tissues contused.

(3) Contusion of size 5 X 3 cm, 5 X 2.5 cm present over left side of face and right side of face respectively.

(4) scratch abrasion present over left upper chest over the left clavicle of size 3 Cm X 0.2 Cm.

(5) The upper part of neck bluish in appearance with cresentric scratch abrasion nail mark two in numbers of sizes 01 X 0.5 cm each in the left side of neck. One crescentric scratch abrasion nail mark in the posterior aspect of the right side of the neck. On dissection diffuse contusion of neck in the upper half with comprssion of trachea antero posteriorly thyroid bond is found healthy. "

The witness also gave his opinion that death was due to asphyxia as a result of manual strangulation which was also ante mortem and homicidal in nature and the Injury Nos. 1,2, 3 and 4 and were ante mortem in nature caused by force impact. We have also taken note of from the Exhbt-6 the post mortem report, that the post mortem examination was conducted on 12.09.2015 at about 2.30 p.m and further that the Rigor mortis was present and the death had occurred between 12 to 24 hour prior to the examination being done at 2.30 p.m of 12.09.2015. If the death had occurred between 12 to 24 hour prior to it, it would have to be understood that the death had occurred sometime in the intervening night between 11.09.2015 to 12.09.2015.

Mr. L.R. Mazumder, learned counsel for the appellant raises the contention that there is no eye witness to the occurrence and the accused appellant had been convicted of the offence under Section 302 merely based upon circumstantial evidence in a situation where the chain of events is not complete so as to prove it beyond all reasonable doubt that it is the accused who alone had committed the offence. The said contention of Mr. L.R. Mazumder otherwise would have been acceptable had it not been for the relation between the accused and the deceased i.e. they were husband and wife and that the death had occurred in the room where for ordinary purpose the accused and the deceased lived together as husband and wife. In this respect we refer to the pronouncement of the Hon'ble Supreme Court in Trimukh Maroti Kirkan -vs- State of Maharashtra reported in (2006) 10 SCC 681 wherein in paragraph-21 and 22 it has been held as under:-

"21. In a case based on circumstantial evidence where no eye- witness account is available, there is another 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 prosecution succeeds 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 proposition it can be culled out that when the offence takes place in the dwelling house where the husband also normally resided,it has been consistently held that if the accused had not offered any explanation as to how the deceased received the injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that it is the accused who is responsible for commission on the crime.

PW-1 in his deposition stated that the accused used to live with his wife and his mother and on the following morning of the occurrence, he went to the house of the accused to provide warm water to his mother. When he entered the room which was occupied by his mother to provide her with water, he noticed that his sister-in-law had not woken up. Accordingly he entered in her room and found that she was lying dead on the bed.

PW-2 in his evidence also stated that the accused along with his mother and his wife used to reside in one house and the other brothers were residing separately.

PW-6, the Investigating Officer in his cross has stated that the mother of the accused person was an aged lady suffering from paralysis.

From the aforesaid piece of evidence, it is found that the accused and the deceased were living in the same room as husband and wife and further the aged mother who was living in the adjacent room was not in a physical condition to move around and she remained confined to her bed. Further we also take note of that the possible timing of the death as indicated above was sometime from the intervening night of 11.09.2015 to 12.09.2015.

In the aforesaid circumstances, the consideration contemplated in paragraph 22 of Trimukh Maroti Kirkan (supra) that when the offence took place in a dwelling house where the husband also normally resided and the accused fails to offer any explanation as to how the wife received the injuries or the explanation offered is found to be false, the circumstance would indicate that it is the accused who is responsible for the commission of the crime, is squarely applicable in the facts and circumstances of the present case.

To support such conclusion, we also take note of the evidence of PW-1 wherein it was stated that when he entered the house of the accused and asked him as to how the deceased had died, the accused had replied that he had killed his wife. Such extra judicial confession by the accused also remains uncontroverted which again supports the circumstantial evidence against the accused as indicated above. We also take note of the further circumstances, which again remains un-rebutted that when PW-1 being another brother tried to enter the house for providing warm water to his mother, the accused had resisted him from entering the house, such conduct on the part of the accused is a further circumstance, which points towards his guilt. Although the same on its own may not be sufficient to be so but it definitely does constitute a supporting circumstance. We also do not find any mitigating circumstance to arrive at the conclusion that the act of the accused come within the purview of any of the exception to Section 300 IPC. Accordingly we are of the view that no interference is required in the judgment and order dated 26.09.2016 of the learned Additional Sessions Judge (FTC) Cachar, Silchar in Sessions Case No.176/2015 by which the accused appellant was convicted for committing an offence under Section 302 of the IPC and thereby sentencing him to undergo rigorous imprisonment for life and a fine of Rs.5000/- in default thereof further rigorous imprisonment for another six months.

We are of the view that the chain of circumstance leading to the accused having committed the offence is complete, which leads to the conclusion that it is the accused alone who had committed the offence, and, accordingly, the conviction of the accused under Section 302 IPC and sentencing him to undergo rigorous imprisonment for life and a fine of Rs.5000/- in default thereof further rigorous imprisonment for another six months is confirmed and upheld.

Appeal stands dismissed.

Send back the LCR.