Emphasizing that the prosecution has not been able to prove that the shock which caused the death, had occurred due to the burn injuries suffered by the deceased, the Gauhati High Court held that a false defence can only be considered as an additional link, if the other circumstantial evidence proves the guilt of the appellant.

Otherwise, it would amount to requiring an accused to prove his innocence, which would be completely opposite to the requirement of the prosecution requiring to prove the case against an accused, beyond all reasonable doubt, added the Court.

The Division Bench of Justice Michael Zothankhuma and Justice Malasri Nandi observed that “On considering all the above facts and discrepancies in the investigation conducted by the police and the consequential prosecution of the case, we are of the view that the respondents have intentionally hidden some facts from this Court, thereby denying the learned Trial Court and this Court, the possibility of going into the truth of the matter. In that view of the matter, we are of the view that the conviction of the appellant cannot be based solely on the evidence given by PW-3, who is the son of the appellant and the deceased. The reason being that though it was possible for PW-3 to be tutored as he was only 9 years living with PW-4, the pertinent question that arises is as to whether the deceased had died due to being burnt by fire”.

The Bench added that the discrepancy regarding the date and time of death of the deceased, coupled with the fact that doctors who had in all probability attended upon the deceased in Dangtol Railway Hospital, Bongaigaon and M.J.N. Hospital, Coochbehar not having been made prosecution witnesses, besides documents not being exhibited by the prosecution, gives rise to a suspicion as to whether the prosecution hid material facts.

Amicus Curiae A. Dhar appeared for the Appellant, whereas Additional PP B. Bhuyan appeared for the Respondent.

The brief facts of the case were that an FIR was filed by the mother of the deceased victim and mother-in-law of the appellant, alleging that the appellant used to torture the deceased demanding dowry. It was further alleged that as the deceased refused to give money to the appellant, the appellant poured kerosene on her body and set her on fire with an intention to kill her. In pursuance to the FIR, a case under Section 498(A) IPC was registered. After completion of the investigation, the First Investigating Officer submitted the Charge-sheet, after finding the appellant guilty of having committed an offence under Section 302/498(A) IPC. The Trial Court after examining the prosecution witnesses and recording the statement of the appellant that he was not involved in the death of his wife, concluded that the appellant was guilty of having murdered his wife, by setting her on fire. Hence, the appellant was convicted under Section 302 IPC and 498(A) IPC and sentenced accordingly.

After considering the submission, the Bench found that even though the FIR states that deceased was undergoing treatment at Dangtol Railway Hospital and that her mother was thinking of taking her to a nursing home in Coochbehar for better treatment, however, surprisingly, the prosecution has not made any Doctor, who had treated the deceased in Dangtol Railway Hospital, Bongaigaon and the doctor who referred her for treatment to Coochbehar as a prosecution witness.

Though the Inquest Report made in Coochbehar has not been exhibited by the prosecution, the same is in the Trial Court records and it shows that the date and hour of death of the deceased was on 03.04.2010 at 7:05 p.m. The above cannot be the exact time of death of the deceased, inasmuch as, the deceased had been apparently brought dead to the MJN Hospital, Coochbehar on 03.04.2010 at 1905 hours, i.e. 7:05 p.m”, added the Bench.

The Bench noted that the issue that has arisen based on the non-exhibited Inquest Report is that while the date and time of death of the deceased was Apr 03, 2010, at 7:05 p.m., the prosecution witness had submitted the FIR 3½ hours later, i.e. at 10:30 p.m. in Bongaigaon, which is apparently around 142 km away, stating that she was intending to take the deceased to Coochbehar for better treatment.

The Bench, therefore, observed that the discrepancies in the date and time of death of the deceased, coupled with the date and time of submission of the FIR, leave a big question mark as to when the deceased had died and whether at all the deceased required any treatment for the burns she allegedly suffered at the hands of the appellant.

PW-7 stated that he had not mentioned the percentage of burn injuries. It was also stated by PW-7 in his cross-examination that if a patient party takes away the patient from the hospital, the responsibility lies on the patient party. He stated in his report that he had not mentioned the time since the death of the deceased as well as the age of the burn injuries. The evidence given by PW-7 is to the effect that the burn injuries were skin deep and as such cannot be serious, as the burn injuries were stated to be superficial burn injuries. The percentage of burn injuries is not reflected in the Post Mortem Report”, added the Bench.

In the present case, the prosecution having failed to produce witnesses (doctors) and failing to exhibit documents to enable the appellant/accused to have all the opportunity available to him to prove his innocence, the High Court observed that the advantage in the inherent weakness of the prosecution case should be to the advantage of the appellant.

Accordingly, the High Court acquitted the appellant of the charges under Section 302 IPC and 498(A) IPC, by giving him the benefit of the doubt.

Cause Title: Kalyan Barman v. State of Assam and Anr.

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