TAPAN KUMAR DAS Vs. STATE OF ASSAM

JUDGEMENT

(1.) The appellant having been convicted for an offence under Section 302 of the Indian Penal Code after finding him guilty has been ordered to undergo sentence of rigorous imprisonment for life. This appeal has been filed by him against the order of Additional Sessions Judge, Kamrup, Guwahati in Sessions Case No. 232(K)/95.

(2.) The prosecution story as has been unfolded in the first information report and the evidence brought on the record of the case, in short, is that the appellant-husband has burnt his wife alive by pouring kerosene oil on the night of 9-9-1995 at about 10.30 P.M. after a quarrel ensured between the two. She died on the next day at 5 A.M. The prosecution has produced as many as 7 witnesses in order to bring home the guilt to the accused. The Additional Sessions Judge has primarily recorded the order of conviction on the sole testimony of maid servant (PW 5) Kantibala Roy who is alleged to have seen the entire occurrence.

(3.) The learned counsel for the appellant Shri J.M. Choudhury a senior Advocate at the very outset has strenuously argued that the conduct of the investigating agency in the instant case was not fair inasmuch as the sale eye witness was kept under detention for a period of two days before leading her to the Court of Magistrate for recording the statement under Section 164 of the Criminal Procedure Code. He has further argued that the sale eyewitness did not disclose at the earliest opportunity that it was the appellant who committed the crime. The counsel has argued several other points. However, we do not intend to refer to the detailed submissions of the counsel as we intend to remand this case for the simple reason that the statement of the sole eye-witness under Section 164 of the Criminal Procedure Code has remained unexhibited. The maid servant did appear in the witness box as P.W. 5 as has been noticed above but her statement under Section 164 Cr. P.C. having remained unexhibited we are of the view that the present is one of the few cases which need be remanded to the Court of Additional Sessions Judge for the reasons to be recorded in the latter part of the judgment.