To prove the defence, the appellant does not need to present any direct or positive proof: Gauhati High Court

It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. The onus of proof lies upon the accused person is to prove his case by a preponderance of probability. The judgment was passed by the High Court of Gauhati in the case of Radharaman Bhowmik v. State of Assam [CRL.A(J)/5/2018] by Division Bench consisting of Hon’ble Justice Mir Alfaz Ali & Justice Manish Choudhury.

The facts of the case are that the appellant married the victim and they were also blessed with two children, however, their conjugal life was not very happy and eventually on the date of occurrence, the appellant assaulted the victim being his wife demanding money whereby caused serious injury, to which the victim succumbed, FIR was lodged, on the basis of which police registered Case under Sections 498(A)/304(B), IPC and on completion of the investigation, submitted charge sheet against the appellant.

Learned Amicus Curiae while assailing the judgment does not contest the finding of the learned trial Court holding that the injury leading to the death of the victim was caused by the present appellant. However, the contention of the learned Amicus Curiae is that there was no intention to cause death and, as such, the ingredients of the offence of murder as defined under Section 300, Cr PC was not present. Therefore, the learned trial Court ought not to have recorded conviction under Section 302, IPC. At best, according to the learned Amicus Curiae, it was a case of culpable homicide not amounting to murder punishable under Section 304 Part II, IPC.

Counsel for defense is sought to be raised by the appellant to the effect that, the injury to the victim was caused accidentally and he did not have any intention to assault his wife, no evidence could be brought on record to substantiate the stand taken by the appellant.

While partly allowing the petition the court ordered that “the conviction of the appellant recorded under Section 302, IPC. Instead, we convict him under Section 304 Part II, IPC. It reveals from the record that the appellant has been in jail for about 7 years and, as such, we are of the view that the period which the accused had already undergone in custody would commensurate with the gravity of the offence. Accordingly, we modify the sentence of imprisonment and sentence the appellant to imprisonment for the period which he has already undergone during the investigation and trial. We also reduce the default sentence for non-payment of fine to 15 days. Upon due payment of fine or after completing the default sentence, the appellant shall be released if not required in any other case.”

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