Gauhati High CourtBrinesh Daimary vs The State Of Assam on 24 October, 2016THE GAUHATI HIGH COURT
     (THE HIGH COURT OF ASSAM, NAGALAND, ARUNACHAL PRADESH AND MIZORAM)

              Criminal Appeal No. 63 (J) of 2013

              Appellant/Accused .... Brinesh Daimary

              Respondent          .... The State of AssamBEFORE
          HON'BLE THE CHIEF JUSTICE MR. AJIT SINGH
            HON'BLE MR. JUSTICE MANOJIT BHUYAN

For the Appellant/Accused ...         Mrs. R.S. Choudhury,
                                    Learned Amicus Curiae
For the Respondents         ...       Mr. M Phukan, learned
                                    Additional Public Prosecutor, Assam
Date of hearing & judgment...         24.10.2016


                       JUDGMENT AND ORDER

(Ajit Singh, C.J.)
       The sole appellant Brinesh Daimary has been convicted underSection 302of the Indian Penal Code and sentenced to imprisonment
for life and fine of Rs.5,000/- with default stipulation.2.     The victim of incident was Rina Daimary, aged about 25 years.3.     According to the prosecution case, Rina Daimary was married to
appellant five years prior to the date of incident and they have two
daughters aged four years and two years. All of them lived together in
a house situated at village Jalahgaon falling within the jurisdiction of
Police Station Simla, District Baksa. Mother Bimala Daimary (PW-4) and
sister Nazita Boro (PW-5) of the appellant also lived with him. On
6.5.2011 at about 7 p.m., the appellant quarrelled with Rina Daimary
over some issue and thereafter caused as many as four injuries on her
neck and head with a saw and fled. The incident took place in the
kitchen of their house. Station Officer Khetra Konwar (PW-9) of Jalah
Police Station on receiving telephonic information from "Gaonburah"
about the incident rushed to the house of appellant. He found injured
dead body of Rina Daimary lying inside the kitchen. He also foundPage 1 of 4blood stained saw by the side of dead body. He, therefore, seized the
saw vide seizure memo exhibit 2. An inquest of the dead body was
prepared by Executive Magistrate Ansulal Basumatary (PW-10). Khetra
Konwar then referred the dead body of Rina Daimary for post mortem
examination. Samin Boro (PW-1) father of Rina Daimary made the
ejahar exhibit 1 against the appellant which was registered as First
Information Report.4.    Dr. Nayan Kumar Das (PW-11) conducted the post mortem
examination on the dead body. He found as many as four chop
wounds on the face, head and neck of Rina Daimary. According to the
opinion of doctor, Rina Daimary died due to ante mortem chop
wounds, which were caused by moderately heavy sharp cutting
weapon. His post mortem examination report is exhibit 7.5.    The appellant could be arrested by the police on 8.5.2011, when
he returned home. After completing the investigation the police filed a
charge sheet against the appellant for his prosecution underSection
302of the Indian Penal Code.6.    During trial, the appellant abjured his guilt and pleaded false
implication. His defence was that he and Rina Daimary were attacked
by Bodo militants in their house. But, while being examined as an
accused underSection 313of the Code of Criminal Procedure, the
appellant admitted that he had caused cut injuries to Rina Daimary.7.    It is argued on behalf of the appellant that he is innocent and
has wrongly been convicted. Learned Additional Public Prosecutor, on
the other hand, defended the conviction and sentence of the appellant.8.InGaneshlal Vs. State of Maharashtra(1992) 3 SCC 106, the
accused was prosecuted for the murder of his wife which took place
inside his house. In this case, the Supreme Court observed that when
the death had occurred in the custody of accused, he is under an
obligation to give a plausible explanation for the cause of her death in
his statement underSection 313of the Code of Criminal Procedure.
The mere denial of the prosecution case coupled with absence of anyPage 2 of 4explanation was held to be inconsistent with the innocence of the
accused, but consistent with the hypothesis that the appellant is a
prime accused in the commission of murder of his wife.9.    The Supreme Court in the case ofTrimukh Maroti Kirkan Vs.
State of Maharashtra(2006) 10 SCC 681 has again 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.   In the present case the dead body of Rina Daimary was found in
the kitchen of appellant's house where both of them lived. As
mentioned above, Nazita Boro is elder sister of appellant. She has
testified that she was cutting potatoes by sitting on the outer edge of
the mud floor of house and Rina Daimary was cooking rice. At that
time, the appellant was roping the cattle whereafter he entered inside
the house. According to the evidence of Nazita Boro, on hearing the
scream of Rina Daimary, she went to the kitchen and saw her lying on
the floor with cut injuries and the appellant had a saw in his hand.
Nazita Boro has also testified that on seeing the dead body of Rina
Daimary, she became terrified and ran away from the house. Nazita
Boro in her cross examination categorically denied the suggestion that
Bodo militants had killed Rina Daimary or caused a cut injury on the
neck of appellant. Nothing has been brought out in the cross
examination of Nazita Boro to discredit her evidence. No suggestionPage 3 of 4has also been put by the appellant for his false implication by Nazita
Boro. Similar is the evidence of Bimala Daimary, mother of the
appellant. She has also testified that in the evening on the date of
incident a quarrel took place between the appellant and Rina Daimary
whereafter she heard an alarm raised by Rina Daimary and when she
rushed to the house, she found Rina Daimary lying with cut injuries on
her neck. Although Bimala Daimary admits in her cross examination
that she did not see the appellant inside the house, this was because
by the time she reached inside, he had fled. Bimala Daimary has
admitted the presence of Nazita Boro in the house at the time of
incident. She has also admitted that Nazita Boro had told her that
appellant had killed Rina Daimary by cutting her neck. Even this
witness has denied the suggestion of appellant that some extremists
had killed Rina Daimary and had caused injuries in this neck. Be that
as it may, we find the evidence of Nazita Bora and Bimala Daimary
fully reliable and truthful.11.    Besides this, the appellant has also admitted while being
examined as an accused that he himself had hacked Rina Daimary in
anger as he was taking liquor. This statement of appellant stands fully
corroborated by the evidence of Nazita Boro and Bimala Daimary, his
own sister and mother. The post mortem examination report exhibit 7
has confirmed that cause of death of Rina Daimary was homicidal due
to cut injuries on her neck which were caused by moderately heavy
sharp edged weapon. There is thus ample evidence against the
appellant that he killed his wife Rina Daimary with a saw in the kitchen
of their house.12.    We find no merit in the appeal. It is accordingly dismissed.JUDGE                             CHIEF JUSTICE




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