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2001 DIGILAW 145 (GAU)

Baharan Bibi v. State of Assam

2001-05-24

H.K.SEMA, P.G.AGARWAL

body2001
P. G. Agarwal, J.- This appeal is directed against the judgment dated 7.6.97 passed by the Additional Sessions Judge, Dhubri in Sessions Case No. 40/94, whereby the accused appellants were sentenced to rigorous imprisonment for life and to pay a fine of Rs. 1,000 each, in default to rigorous imprisonment for one year for the offence under section 302 IPC and to suffer another two years h rigorous imprisonment for the offence under section 201 IPC and to pay a fine of Rs. 500 each, in default to another three months rigorous imprisonment. The sentences were directed to run concurrently. 2. The prosecution story of the case in brief is that the accused appellant Baharan Bibi was married to one Faijal Hoque (since deceased) and they were living together as husband and wife on the bank of a river. The said Faijal Hoque was found missing since 15th August, 1990. The wife was asked about Faijal Hoque but she gave out different stories. Subsequently, she confessed before the Secretary of the VDP and others that her husband has been killed by her paramour, namely, Hasen Ali and the dead body was recovered from the river Jinjiram in a decomposed state. The blood stained clothes and the weapon of assault etc were seized on being led by the accused persons and the two accused persons were tried for the offence under section 302/34 IPC. On conclusion of the trial, the learned Sessions Judge convicted the two accused appellants under section 302 and 201 IPC and sentenced them to imprisonment for life for the offence under section 302 IPC and rigorous imprisonment for two years and to pay a fine of Rs.500 for the offence under section 201 IPC. Both the sentences were to run concurrently. Hence the present appeal. 3. In the present case, there is no eye witness to the occurrence and the entire prosecution story rests upon the circumstantial evidence and extra judicial confession and discovery under section 27 of the Evidence Act. The incident took place on 15th August, 1990 and the dead body was recovered after 8/9 days and the post-mortem was held by Dr. KN Deka on 24.8.90. The Doctor, PW 12 stated as follows : "External appearance : Human Skeleton with grossly decomposed soft tissue with Maggots. No external injury can be determined. The incident took place on 15th August, 1990 and the dead body was recovered after 8/9 days and the post-mortem was held by Dr. KN Deka on 24.8.90. The Doctor, PW 12 stated as follows : "External appearance : Human Skeleton with grossly decomposed soft tissue with Maggots. No external injury can be determined. One lungi and jangia is received from Skeleton which suggests it to be male body. Internal examination. Right temporal bone is fractured under the being of thorax. Only ribs are seen with grossly decomposed soft tissues. No brain matter is seen, All decomposed injury on the skull bone is ante mortem. In my opinion the cause of death is head injury with chock. Ext 11 is the PM. Report, Ext 11 (1) is my signature." 4. In view of the above evidence of the Doctor, learned counsel for the appellant has submitted that the prosecution has failed to establish the identity of the dead body and as such the appellants are entitled to acquittal. The prosecution witnesses on recovery of the dead body had seen the same and all of them have deposed that the dead body was that of deceased Faijal Hoque. There was no cross examination of the witness on that point. Moreover the Investigating Police Officer has stated that even the dead body was identified by the accused Baharan Bibi before him and this part of the evidence was also not challenged. Although the body was decomposed but from the cloth etc, the dead body was identified as that of Faijal Hoque not only by the witnesses but also by his wife. We, & therefore, find no force in the submission. In the case of corpus delicti even conviction can be entered into. 5. Although the body was decomposed but from the cloth etc, the dead body was identified as that of Faijal Hoque not only by the witnesses but also by his wife. We, & therefore, find no force in the submission. In the case of corpus delicti even conviction can be entered into. 5. In the present case, the following circumstances were relied on by the prosecution to bring home the charge against the accused person : (i) the deceased was the husband of Baharan Bibi and they were living together as husband and wife; (ii) the co-accused Hasen Ali was a co-villager and he had illicit relations with the co-accused Baharan Bibi; (iii) the deceased was last seen in the company of the accused Baharan Bibi; (iv) accused Baharan Bibi did not inform police about her missing husband; (v) when enquired by the villagers and relations, she made false statement of about the whereabouts of the deceased; (vi) accused Baharan Bibi made extra judicial confession before the witnesses; (vii) The incident took place in the house of the accused Baharan Bibi, where blood stained clothes were found by the witnesses and the police; (viii) Accused Baharan Bibi produced blood stained cloth and these were seized by the police; (ix) The seized cloth contain human blood as per FSL report. (x) Accused Hasen Ali procured the weapon of assault from PW Abdul Munshi on false pretext; (xi) The Dao was recovered on being led by the accused Hasen Ali. In the case of Sarad Bridhi Chand Sarda vs. State of Maharashtra, AIR 1984 SC 1622 , the Supreme Court laid down the five golden principles, if we may say, construe the Panchsil of proof of a case based on circumstantial evidence. The Apex Court held : " 1. the circumstances from which the conclusion of guilt is to be drawn should be fully established. 2. the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say they should not be explainable an any other hypothesis except that the accused is guilty; 3. the circumstances should be of a conclusive nature and tendency; 4. they should exclude every possible hypothesis except the one to be proved, and 5. the circumstances should be of a conclusive nature and tendency; 4. they should exclude every possible hypothesis except the one to be proved, and 5. there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." 6. In the present case, the prosecution examined, as many as, 12 witnesses and the circumstances, as quoted above, has been fully established by leading cogent evidence. PW 1 is the cousin of the deceased and he has deposed that on 21.8.90. he was informed by Abdul Hussain, elder brother of the accused Baharan Bibi that Faijal is missing since 15th August, 1990. They came to the house of the accused Baharan and saw the blood marks on the ground and walls of the house. When asked Baharan informed them that Faizal has gone to Guwahati on 15.8.90 and they made enquiries at Guwahati and found that Faijal had not gone to Guwahati. The witness thereafter informed Abdul Hussain, PW 5, the brother of the appellant Baharan who has deposed that on enquiry the accused informed him that Faijal has gone to Lakhimpur to do some marketing. On the other hand, the accused informed her mother PW 8 that her husband Faijal has gone to Gaimara Bazar. PW 8 has deposed that her son waited at Gaimara Bazar for Faijal to arrive but Faizal never came to Gaimara Bazar. The false explanation given by the accused is a conduct which is relevant under section 8 of the Evidence Act. In the case of Md Mahirudin vs. State of Bihar, (1999) 1 SCC 252 the Apex Court held : "That this false explanation or statements provides the missing links in a case resting on circumstantial evidence." 7. PW 4 Abdul Munsi has deposed that the accused borrowed a Dao from him saying that he needs the same for cutting bamboo. The accused Hasen however did not return the same and on their demand the accused Hasen returned back the Dao. About 3-4 days thereafter police came to their house along with the accused stating that the Dao has been used for killing Faijal Hoque. Police seized the Dao from him. 8. The accused Hasen however did not return the same and on their demand the accused Hasen returned back the Dao. About 3-4 days thereafter police came to their house along with the accused stating that the Dao has been used for killing Faijal Hoque. Police seized the Dao from him. 8. In the case of Rajendra Kumar vs. State of Punjab, AIR 1976 SC 1322, the following circumstances were considered sufficient for maintaining conviction. (i) the deceased last seen in the company of the accused; (ii) accused making contrary statements as to the whereabouts of the deceased; (iii) the recovery of the dead body at the instance of the accused. In the present case also we find that the deceased was last seen with Baharan Bibi and they lived together in the same house. Accused Baharan also gave false and misleading statements or explanations regarding the whereabouts of her husband for 5/6 days. The dead body of her husband was recovered from the river in which it was thrown by them. 9. Besides the circumstances stated above, there is extra judicial confession of Baharan Bibi to bring home the charge against the accused-appellants, PW 2 Ainudin Sheikh has deposed that he is a neighbour of the accused Baharan. He has deposed that on coming to know about the missing of Faijal he went to enquire and saw blood marks inside the house of the accused. He along with the VDP Secretary Atowar went to the house of the accused Baharan and found the accused sitting and pretending to cry. When they asked her about the whereabouts of her husband she was crying and laughing simultaneously. They waited there for sufficient time and the VDP Secretary asked Baharan to tell them exactly what has happened to her husband. She told the VDP Secretary that she will disclose everything and speak the truth of no atrocity is committed on her. On the next day accursed Baharan stated as follows before them : "Secretary, one day I got caught by my husband for mixing with another man. He beat me severely. Because of this I hatched a conspiracy and killed my husband. "When the Secretary asked Baharan as to how she had committed the murder, the latter said, "I served my husband his meal. Hasen came from behind and hit him in the neck with a Dao. He beat me severely. Because of this I hatched a conspiracy and killed my husband. "When the Secretary asked Baharan as to how she had committed the murder, the latter said, "I served my husband his meal. Hasen came from behind and hit him in the neck with a Dao. At this my husband jumped up whereupon blood spread all over." The Secretary then said, "I have seen blood only on the walls and the roof." What happened to the rest of the blood" Baharan then said, "I have kept the pillows, quilt and gunny bags covered with a mattress." When the Secretary asked her as to where she had kept these articles, Baharan took out the quilt, mattress, gunny bags, etc and placed them before the Secretary. Having seen those articles, the Secretary said "Whatever had to happen has happened. What have you done with the dead body ?" Baharan said, "I can not produce the dead body. It has been floated in the river." Learned counsel for the appellant submitted that the above extra judicial confession has not been proved as the VDP Secretary has not been examined. a The said extra judicial confession was made before the VDP Secretary and PW 2 who has categorically stated that he along with the VDP Secretary went inside the house of Baharan and thereafter the statement was made before them. The above statement discloses the motive for killing and the details as to how the incident took place. The statement is fully corroborated by the other evidence on record. Referring to the decision of the Apex Court in the case of Kavita vs. State of Tamilnadu (1998) 6 SCC 108 , learned counsel for the appellant submits that the extra judicial confession is a weak piece of evidence. In an earlier case Narain Singh vs. State of MP, AIR 1985 SC 1678 , the Apex Court had expressly observed that it is not open to any Court to start with a presumption that an extra judicial confession is a weak type of evidence. In Baldev Raj vs. State of Haryana, AIR 1991 SC 37 , the Apex Court held . "An extra judicial confession, if voluntary, can be relied upon by the Court along with other evidence in convicting the accused. In Baldev Raj vs. State of Haryana, AIR 1991 SC 37 , the Apex Court held . "An extra judicial confession, if voluntary, can be relied upon by the Court along with other evidence in convicting the accused. The value of the evidence as to the confession depends upon the veracity of the witnesses to whom it is made. It is true that the Court required the witness to give the actual words used by the accused as nearly as possible but it is not an invariable rule hat the Court should not accept the evidence, if not the actual words but the substance were given. It is for the Court having regard to the credibility of the witness to accept the evidence or not when the Court believes the witness before whom the confession is made and it is satisfied that the confession was voluntary, conviction can be founded on such evidence. Keeping these principles in mind, we find that the confession has been properly accepted and acted upon by the Courts below and there is no scope for any doubt regarding the complicity of the appellant in the crime. The confession of the appellant was voluntary. The testimony of PW 4 and 5 being responsible persons could not be doubted in the absence of any material to show that they had been motivated to falsely implicate the appellant. The very presence of the appellant and his father with the party of Ishar Dass throughout the operation up to lodging of complaint at the police station dispel any suspicion against the prosecution case and clearly point into the truthfulness of the same. We are, therefore, unable to find any infirmity in the confession which has been accepted and relied upon by the courts below." 10. In a recent case, State of Punjab vs. Gurdeep Singh, (1999) 7 SCC 714 , the Apex Court considering its earlier decisions held : "There is no denial of the fact that an extra judicial confession is admissible in evidence and the Court in appropriate cases can rely thereon to the extent of even basing conviction of the accused. In a recent case, State of Punjab vs. Gurdeep Singh, (1999) 7 SCC 714 , the Apex Court considering its earlier decisions held : "There is no denial of the fact that an extra judicial confession is admissible in evidence and the Court in appropriate cases can rely thereon to the extent of even basing conviction of the accused. In a long catena of decisions of the Supreme Court, the settled position of the present day is that the extra judicial confession by itself, if otherwise in conformity with the law, can be treated as substantive evidence, and in appropriate cases it can be used to punish an offender. However, this statement of law stands qualified to the extent that the Court should insist on some assuring material or circumstance to treat the same as a piece of substantive evidence." In the present case we find that the confession was made by the young wife before the VDP Secretary and PW 2, a neighbour and an elderly person. From her statement it is clear that she wanted some protection and in a village who can be a better person than the VDP Secretary to protect her from the ire of the co-villagers. Neither the VDP Secretary not the PW 2 had any animus with the accused-appellant and the trial Court rightly held that the evidence of PW 2 is reliable and trustworthy. If the evidence of the person before whom the confession was made inspires confidence, the extra judicial confession can be acted upon. In the present case as stated above, the extra judicial confession stands fully corroborated by the other circumstantial evidence on record and the discovery made consequent upon the extra judicial confession made by her. As regards the motive the subsequent conduct of the accused persons supports the same. There is evidence on record that after the incident and after their release on bail, the two accused persons have married each other and they are living together as husband and wife (evidence of PW 2). 11. In view of the foregoing discussion, we find that the prosecution has been able to bring home the charge against the accused-appellants and there is no merit in this appeal, the appeal is accordingly dismissed.