BEFORE HON BLE THE CHIEF JUSTICE MR. AJIT SINGH HON BLE MR. JUSTICE MANOJIT BHUYAN

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1 THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, ARUNACHAL PRADESH AND MIZORAM) Criminal Appeal No. 129(J) of 2013 Appellant/Accused. Brindaban Mandal and another Respondents. The State of Assam BEFORE HON BLE THE CHIEF JUSTICE MR. AJIT SINGH HON BLE MR. JUSTICE MANOJIT BHUYAN For the Appellant/Accused Mr. S Borgohain, Ms. Binita Devi and Ms.B Zodinliani, learned coounsel For the Respondents Mr. BB Gogoi and Mr.NK Kalita, learned Additional Public Prosecutor, Assam Date of hearing & Judgment JUDGMENT AND ORDER (Ajit Singh, C.J.) The appellants Brindaban Mandal and Nitai Mandal have been convicted under Section 302/34 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.10,000/- each with default stipulation. Another accused Madhab Biswas was however acquitted of the charge. 2. The victim of the incident was Sobharani, aged about 25 years. She was wife of Nitai and daughter-in-law of Brindaban. Nitai is son of Brindaban. 3. According to the prosecution case, Sobharani was married to Nitai about 7/8 years before the date of occurrence. Although, they lived happily, Sobharani often complained that her father-inlaw Brindaban was soliciting physical relationship with her which she repeatedly denied. She complained the matter to Nitai, but he also put a deaf ear. A few days before the incident, she came to Page 1 of 6

2 her parental home along with Nitai on the occasion of her uncle- Jogesh Biswas s (PW-2) daughter s marriage ceremony. There also she narrated her father-narayan Biswas (PW-1)-about the trauma she was going through in her marital home and expressed her desire not to go back there or else she would have to compromise with her father-in-law Brindaban. But, Narayan somehow convinced her and sent her back to her matrimonial home. After 2-3 days news of sudden and unnatural death of Sobharani came to Narayan. He was informed that on 11/08/2011 at about 3 a.m., Sobharani committed suicide. On receipt of the news, he accompanied by his brother Jogesh (PW-2) and one Premchand Biswas, went to the house of Brindaban and Nitai where he saw the dead body of Sobharani lying on the verandah. On query, Brindaban did show a tree about 2-2 ½ feet tall-in the west side of his house and told them that she committed suicide by hanging from that tree at about 3 a.m. When she committed suicide, there was a hue and cry in the locality and the neighbours - Keshab Sarkar (PW-3), Suhagi Biswas (PW-4) and Madhubala Biswas (PW- 5) came to the spot of incident and saw the wife of Brindaban pouring water on the head of Sobharani, already dead. Brindaban and Nitai were also pouring water. Brindaban then also told to Madhubala that she died due to strangulation. 4. Narayan suspecting foul play by Brindaban and Nitai made Ejahar Exhibit-1 at Police Station Bhuragaon against them and one Madhab Biswas for committing the murder of Sobharani. On receiving the information, Investigating Officer Rudra Kanta Bora (PW-8) rushed to the spot and recorded statement of the witnesses. He also prepared the inquest report, Exhibit-4 sketch map and arrested the Brindaban and Nitai. When both of them were taken to the police station, Nitai begged for mercy from Krishna Biswas(PW-7) touching his feet saying that the allegations were correct. Page 2 of 6

3 5. Dr. Abu Taher Md. Yusuf (PW-6) conducted the post mortem examination on the dead body of Sobharani. He found a poorly circular ligature mark on the neck below the hyoid bone and parchmentisation was found to be absent on dissection of her neck. According to him, hanging did not suggest ante-mortem in nature and no sign of disease, deformity or injury was seen except mild bruise on both the cheeks and poorly demarcated ligature mark on the neck. The doctor opined that Sobharani died due to asphyxia as a result of strangulation and she might have been hung by soft ligature later on. His post mortem examination report is Exhibit- 2. On completion of investigation, Rudra Kanta Bora (PW-8) submitted Exhibit-6 charge-sheet against the accused persons. 6. The trial court relying upon the evidence adduced by the prosecution, convicted and sentenced both Brindaban and Nitai, as aforesaid but acquitted Madhab Biswas for want of evidence. Madhab also explained that on that fateful night, he was not present in the house. 7. It is argued on behalf of the appellants that in the absence of any eye witness against them, the trial court committed an illegality in convicting them under Section 302/34 of the Indian Penal Code. It has also been argued that Sobharani committed suicide by hanging and conviction of the appellants only on the basis of the evidence of Narayan and post mortem report cannot stand a judicial scrutiny. 8. In the instant case, Narayan has categorically deposed that Sobharani told him about the trauma she was going through while living in the house of her in-laws. This piece of evidence is not shaken during his cross-examination. Although, Jogesh (PW-2) also deposed that he was present when Sobharani narrated about her miseries to her father, the same is not reliable since Narayan had stated that Jogesh was not present on that day when she was Page 3 of 6

4 narrating him about the illicit desire of Brindaban to have sexual favour from her. Besides, Jogesh also did not state to that effect before police and his later evidence is nothing but development and afterthought. But, there is ample evidence to establish that Sobharani died due to strangulation. Dr. Abu Taher Md. Yusuf (PW-6) has categorically deposed that the ligature mark on the neck of Sobharani was poor and circular. Besides, the ligature mark was not ante-mortem. It is his evidence that she died due to asphyxia as a result of strangulation and later might have hung by soft ligature. 9. The Supreme Court in the case of Trimukh Maroti Kirkan Vs. State of Maharashtra (2006) 10 SCC 681 has approved the well settled principle that when an incriminating circumstance is put to the accused and that 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. In this case the Supreme Court has also held that where a husband 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 house where the husband also normally resided and if the husband does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it was a strong circumstance pointing that he alone was responsible for the commission of crime. 10. There is yet another decision of the Supreme Court, State of Rajashthan vs. Kashi Ram AIR 2007 SC 144 wherein it is held that when the accused was last seen with his murdered wife, he must give explanation or plead alibi in support of his innocence or else it would be a strong circumstance against him pointing towards his guilt. Page 4 of 6

5 11. Sobharani died in the house of appellants Brindaban and Nitai under mysterious circumstances. There is ample evidence to prove that she died due to strangulation and not by hanging which would rebut the claim of Brindaban and Nitai that she committed suicide by hanging. The medical evidence is clear enough to prove that she was first strangulated to death and then was hung by soft ligature. This evidence would go to show that there was sufficient design to camouflage her death with the colour of suicide. When Keshab, Suhagi and Madhubala went to the house of the Brindaban and Nitai immediately after the occurrence, they saw Sobharani dead and her mother-in-law pouring water on her head. Brindaban and Nitai were present in the house at that time and they were also pouring water on her head. Madhubala deposed that Brindaban said to her that Sobharani died of strangulation and Brindaban also stated to Narayan that she hung herself from a tree in the house which was a short tree from which possibly none can hang. This conduct of Brindaban and Nitai would go to show that they were misleading the people giving false explanations whereas the medical evidence speaks otherwise. This is a conduct which completes the missing link of the circumstances. 12. Besides, during their statements recorded under section 313 of the code of Criminal Procedure, Bridaban did not offer any plausible explanation whereas Nitai explained falsely that Sobharani committed suicide as she was suffering from mental illness. The explanation of mental illness of Sobharani is out and out false and fabricated as well as not proved for want of evidence. There is hardly any whisper that Sobharani was suffering from any such mental illness at any point of time. Both Brindaban and Nitai being present in the house at the time of occurrence, they were naturally expected to offer a plausible explanation leading to the death of Sobharani. Instead of that, both of them resorted to falsehood and silence which would point the finger of guilt towards them. Page 5 of 6

6 13. We, therefore, having regard to the above referred decisions of the Supreme Court as well as the evidence of the prosecution find ourselves in complete agreement with the finding of the trial court that Brindaban and Nitai are the perpetrators of the crime. 14. For these reasons, we find no merit in this appeal and it is accordingly dismissed. JUDGE CHIEF JUSTICE skd Page 6 of 6