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Gauhati High Court · body

2002 DIGILAW 158 (GAU)

Nabab Ali v. State of Assam

2002-04-09

D.BISWAS, I.A.ANSARI

body2002
I.A. ANSARI, J- Aggrieved by the judgment and order, dated 14.9.98, passed by the learned Additional Sessions Judge, Kamrup, Guwahati, in Secessions Case No. 218(K)/ 95 convicting the accused appellant under Section 302, IPC, and sentencing him to undergo imprisonment for life and pay a fine of Rs. 1000.00. and in default, to undergo rigorous imprisonment for a further period of three months, the accused-appellant has preferred this appeal. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be stated as follows: Daliman Nessa, daughter of Md Bahej Uddin Munchi, died after about 12 to 14 years of her marriage with accused Nabab AH. Since the accused wanted to marry another woman, he started assaulting and torturing Daliman. About 10-12 days before her death, Daliman had come to her father's house and remained there for a few days. Thereafter, her parents sent her along with their co-villagers, namely, Sorab Ali Munshi. Hakim Uddin and Kalu Diwani to Nabab Ali's house, who somehow, persuaded the accused to let Daliman live there. Three or four days thereafter, accused brought Daliman, lying on a wooden plank with injuries on her person, to her father's house. She told Sorab Ali and others that she had been beaten by her husband. Later on, accused Nabab and others took Daliman to doctor from her father's house. Three or four days thereafter, Daliman died, on 9.6.92, at the house of the accused. On coming to know about her death, her father lodged a written ejahar, on 9.6.92, itself, at Sontoli Police Outpost, alleging inter alia, that on the previous night, accused had killed Daliman by assaulting her inhumanity. Based on this ejahar, Boko PS Case No. 81/92 under Section 302IPC was registered against the accused. Police held inquest over the said dead body and prepared inquest report. Post-mortem examination was concluded on the said dead body. The stomach contents of the said deceased, on chemical analysis, revealed presence of carbonate pesticide. Upon completion of investigation, police laid charge sheet (Ext-3) against the accused under Section 302 IPC. 3. On the case being committed to the Court of Sessions, learned Additional Sessions Judge framed a charge under Section 302 IPC against the accused, but when the said charge was read over and explained to the accused, he pleaded not guilty thereto. 4. Upon completion of investigation, police laid charge sheet (Ext-3) against the accused under Section 302 IPC. 3. On the case being committed to the Court of Sessions, learned Additional Sessions Judge framed a charge under Section 302 IPC against the accused, but when the said charge was read over and explained to the accused, he pleaded not guilty thereto. 4. During trial, prosecution examined as many as 7 witnesses including Investigating Officer. The accused was, then, examined under Section 313 CrPC the case of the defence being that of denial. No evidence was, however, adduced by the defence. 5. On conclusion of the trial, learned Judge pronounced judgment and order, dated 14.9.98, convincing and sentencing the accused-appellant as hereinabove mentioned. 6. The moot question, which falls for determination in this appeal, is thus: Whether the finding of guilt arrived at by the learned trial Court is justified on the basis of the evidence on record and the law relevant thereto? 7. We have carefully perused the entire records of the case including the impugned judgment and order. We have heard Mr A.S. Choudhury, learned counsel for the appellant, and Mr G. Choudhury, learned Public Prosecutor, Assam. 8. On perusal of records, what attracts our eyes prominently is that according to PW-6 (Dr Dipak Das), post-mortem examination performed on the said deadbody revealed abrasion measuring 2cm x 5cm on right temporal region of the deceased above her right cheek and 3cm on the right from lateral angle of the right eye. It is also in the evidence of PW-6 that the viscera preserved, on chemical analysis by Forensic Science Laboratory, disclosed that the stomach contents had given positive tests for carbonate pesticide. PW-6, therefore, concluded that Daliman's death was caused due to carbonate pesticide, Ext-1 being the post-mortem report and Ext-2 being the report from the said laboratory. 9. When PW-6 was cross-examined by defence, his findings and opinion were not disputed by the defence. Even when this aspect of the evidence on record was put to the accused, while he was examined under Section 313 CrPC he did not dispute the correctness of the findings and/or to the opinion. This apart, we do not find the opinion of PW-6, with regard to cause of Daliman's death, illogical. It can, therefore, be safely concluded that Daliman died, because of consumption of carbonate pesticide. 10. This apart, we do not find the opinion of PW-6, with regard to cause of Daliman's death, illogical. It can, therefore, be safely concluded that Daliman died, because of consumption of carbonate pesticide. 10. Keeping in view of the above aspect of the case, when we turn to the remaining evidence on record, we notice that PW-1 (Bahej Uddin Munchi) has deposed that his daughter, Daliman, had been married off to the accused about 10 or 12 years before her death on 9.6.92. As the accused wanted to marry another woman, he started assaulting and oppressing Daliman. Some 12/13 days prior to her death, Daliman came to the house of PW-1 and stayed there for about 10/12 days. Thereafter, PW-1 sent Daliman to the house of the accused along with his co-villagers, namely, Sorab Ali (PW-5), Kalimuddin and Kalu Diwani (PW-3). On their return, PW-5, PW-3 and others informed PW-1 that though the accused was not willing to keep Daliman at his house and had expressed his desire that he wanted to marry another woman, they had persuaded the accused to let Daliman live there and they had also asked him not to beat Daliman. It is in the evidence of PW-1 that four days after they had left Daliman at accused Naba's house, Daliman died at the house of the accused and, on receiving the information of her death, he, accompanied by his wife, Tarabanu (PW-2), his son, Taher Ali, Kalu Diwani and Hakim Uddin went to the house of the accused and saw the deadbody of Daliman lying there. PW-1 has also deposed that accused Nabab's father's younger sister's son, Salu (not examined), told him (PW-1) that Daliman had died as a result of beating by Nabab Ali, whereupon he (PW-1) came to Sontoli Police Station and lodged a written ejahar there. 11. In his cross-examination, PW-1 admitted that he has not seen the accused beating Daliman and that he had not been to see Daliman at her husband's house after the elders in the village had left Daliman there and that he went there after her death. PW-1 has further clarified in his evidence that on receipt of information of Daliman's death, he went first, to the Police Station and, then, went to the house of the accused to see Daliman's deadbody. 12. PW-1 has further clarified in his evidence that on receipt of information of Daliman's death, he went first, to the Police Station and, then, went to the house of the accused to see Daliman's deadbody. 12. Close on the heels of the evidence of PW-1, his wife, Tarabanu Nessa (PW-2), has deposed that Daliman died as a result of her having been beaten up by the accused with a pira (i.e. a low stool) and that this information was, received by her from accused Nabab's younger brother's wife Aisa (not examined). PW-2 has further deposed that Daliman used to come to her father's house and inform them that Nabab used to beat her (Daliman) since after their marriage. 13. In her cross-examination, PW-2 has clarified that she herself had not seen Daliman being beaten by the accused Nabab and that six days after Daliman's return to accused Nabab's house from the house of her father, Daliman died. 14. In view of the fact that Salu and Aisa, who had allegedly told PW-1 and PW-2 respectively, that accused had beaten Daliman to death, have not been examined as witnesses, the evidence given by PW-1 and PW-2 indicating that the accused had reportedly beaten Daliman to death is nothing but hearsay and we keep these assertions of PW-1 and PW-2 wholly excluded from the purview of our consideration. 15. What, thus, transpires from the evidence discussed above is that neither PW-1 nor PW-2 claim that they were witnesses to the beatings of Daliman at the hands of the accused, however, PW-2, claims to have been told by Daliman that the accused used to assault her. 16. Similarly, the evidence of PW-1 and PW-2 give no indication at all that the accused or Daliman had told them that the accused wanted to marry some one else. In this view of the matter, mere assertion of PW-1 that the accused wanted to marry another woman carries no evidentiary value at all. 16. Similarly, the evidence of PW-1 and PW-2 give no indication at all that the accused or Daliman had told them that the accused wanted to marry some one else. In this view of the matter, mere assertion of PW-1 that the accused wanted to marry another woman carries no evidentiary value at all. This impression gains strength from the fact that though PW-1 claims that PWs 3,4 and 5 had informed him (PW-1) that the accused had expressed before them that he wanted to marry another woman, PWs 3,4 and 5 have nowhere deposed that either they were told by the accused that he wanted to marry another woman or that they (PWs 3,4 and 5) had informed PW-1 that the accused had expressed his desire before them that he wanted to marry another woman. 17. What, however, surfaces from the evidence of PW-1 and PW-2 is that prior to her death, Daliman stayed at her parental house for about 10 to 12 days and thereafter, Daliman's parents sent her to the house of the accused along with their co-villagers, namely, PWs 3, 4 and 5 and though the accused was unwilling to keep Daliman at his house, PWs 3, 4 and 5, somehow, persuaded the accused and left Daliman there. It is clear from the evidence of PW-1, PW-2 and PW-6 that after about 4 days of Daliman having been so left at her husband's house, she was found lying dead there with injuries on her face and carbonate pesticide inside her stomach. 18. Let us, now, turn to the evidence of PW-3. According to this witness, 4/5 days prior to Daliman's death, he (PW-3) along with PW-1, PW-4, 5 took Daliman to accused Nabab's house and left her there. PW-3 has clarified that some days before Daliman was taken to her husband's house, she had stayed at her parent's house. PW-3 has further clarified that it was Daliman's father, who initially took her to her husband's house, but as her husband did not want to keep her, PW-1 brought her back and thereafter, some elderly persons took Daliman along with them and left her at Nabab's house. PW-3 has added in his evidence that when they took her to accused Nabab's house, he refused to keep Daliman, but, then, they all persuaded the accused and left Daliman there. PW-3 has added in his evidence that when they took her to accused Nabab's house, he refused to keep Daliman, but, then, they all persuaded the accused and left Daliman there. It is the evidence of PW-3 that three or four days after they had left Daliman, Lalchand, accused Nabab and some other carried Daliman lying on a wooden plank from Nabab Ali's house to Bahej Uddin Munchi's house and that at that time, there were injuries at various parts of her person. It is also in the evidence of PW-3 that Daliman told them that she had been beaten by Nabab Ali. PW-3 has further deposed that later on, Nabab and others took Daliman to the Doctor from Bahej Uddin Munchi's (PW-1) house and 3/4 days thereafter, he (PW-3) received the information that Daliman had died. 19. Broadly in tune with the evidence of PW-3, PW-4 has deposed that PW-1 brought Daliman from Nabab's house and kept her at his house and 10/12 days thereafter, when PW-1 returned from Goalpara, he (PW-1) sent Daliman to accused Nabab's house, but accused Nabab sent her back, whereupon, on PW-1's request PW-3, PW-4 and PW-5, accompanied by PW-1 and Daliman, went to the house of the accused and though the accused refused to keep her, they persuaded the accused and left her there. Three or four days thereafter, accused, accompanied by three persons, brought Daliman to her father's house by laying her on a wooden plank, PW-1 called him (PW-4) and, then, both he (PW-4) and PW-5 along with some others came to PW-1 's house and when they arrived, Daliman told them that Nabab Ali had beaten her severely. It is in the evidence of PW-4 that he saw injuries on Daliman's person and that from her father's house, Daliman was taken to the Doctor by the accused and her father accompanied them and that on the following day, he (PW-4) received the information that Daliman had died at the house of the accused. PW-4 has also stated in his evidence that Daliman had told him that she had been beaten by Nabab with a lathi. 20. PW-4 has also stated in his evidence that Daliman had told him that she had been beaten by Nabab with a lathi. 20. Lending support to the evidence of PW-3 and PW-4, PW-5 has deposed that Daliman's father informed him one day that Nabab Ali was unwilling to keep Daliman, whereupon he, accompanied by PW-3, PW-4 and Daliman, went to the house of the accused, the accused refused to keep Daliman, but they persuaded the accused and left Daliman there and about three days thereafter, PW-1 informed him that Nabab AH had beaten up Daliman and had carried her to his (PW-l's) house in injured state and 2/3 days thereafter, he received the information that Daliman had died and, on coming to know of Daliman's death, he went to Nabab's house and saw deadbody of Daliman lying there with injuries on her chest and abdomen. 21. On a close scrutiny of the evidence of PW-1 and PW-2, on the one hand, and PW-3, PW-4 and PW-5, on the other hand, what becomes glaring to the eyes is that according to the evidence of PW-3, PW-4 and PW-5, three or four days after they had left Daliman at the house of the accused, Daliman was seen being carried by the accused and some others, on a wooden plank on which she was lying with injuries on her person, from the house of the accused to the house of Daliman's father, namely, PW-1 and that Dalmian had told PW-3 and PW-4 that the accused had beaten her. It also transpires from the evidence of PW-3, PW-4 and PW-5 that from her parental house, Daliman was taken by the accused to a Doctor and thereafter, to his own house, where she breathed her last. 22. Curiously enough, the fact that Daliman was brought from her husband's house to the house of her father in injured condition is not at all supported by PW-1 and/or PW-2 inasmuch as PW-1 and PW-2 are completely silent in this regard. 23. Situated thus, we find it highly unsafe to place implicit reliance on the evidence of PW-3 and PW-4 that Daliman was brought in injured state to her father's house. 23. Situated thus, we find it highly unsafe to place implicit reliance on the evidence of PW-3 and PW-4 that Daliman was brought in injured state to her father's house. As far as PW-5 is concerned, his evidence given in this regard is wholly hearsay and does not help the prosecution case, because PW-5 merely claims to have been told by PW-1, about 3/4 days after they had left Daliman at the house of accused, that the accused had beaten Daliman and had carried her to her father's house in injured state, whereas PW-1 gives no such evidence. We are also distressed to note that the learned trial Court has not questioned the accused, while he was examined under Section 313 CrPC, on the evidence given by PW3 and PW4 that they had seen Daliman being brought on a wooden plank in injured condition by accused Nabab Ali to her father's house and/or that the accused had taken, thereafter, injured Daliman to the Doctor's house. 24. We may mention here that the examination of the accused under Section 313 CrPC is wholly perfunctory and many of the incriminating materials on which the learned trial Court placed reliance to found conviction of the accused were not put to the accused. It is apposite, at this stage, to recall Apex Court's decision in Sharad Birdhi Chand Sarda-Vs-State of Maharashtra, AIR 1984 SC 1622 , which lays down succinctly the law on the subject of examination of accused under Section 313 CrPC in the following words: "Apart from the aforesaid comments, there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz, circumstances Nos. 4,5,6,8,9,11, 12,13,16 and 17. As these circumstances were not put the appellant in his statement under Section 313 of the Criminal Procedure Code, they must be completely excluded from consideration, because the appellant did not have any chance to explain them. "This has been consistently held by this Court as far as back in 1953, where in the case of Hate Singh Bhagat Singh- Vs-State of Madhya Bharat, AIR 1953 SC 468 , this Court held that any circumstance in respect of which an accused was not examined under Section 342 of the Criminal Procedure Code cannot be used against him. "This has been consistently held by this Court as far as back in 1953, where in the case of Hate Singh Bhagat Singh- Vs-State of Madhya Bharat, AIR 1953 SC 468 , this Court held that any circumstance in respect of which an accused was not examined under Section 342 of the Criminal Procedure Code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstances appearing against an accused is put to him in his examination under Section 342 or Section 313 of the Criminal Procedure Code, the same cannot be used against him...... It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which are not put to the appellant in his examination under Section 313 of the Criminal Procedure Code have to be completely excluded from consideration." (Emphasis is added by us) 25. We may also refer, at this stage, to AIR 2001 SC 2924 , 2002(1) SCC 71 , 2001(8) SCC 578 and Janak Yadav & Ors.~ Vs-State of Bihar, 1999 SCC (Cri) 588. 26. In view of the grossly inadequate examination of the accused under Section 313 CrPC, we might have been tempted to either remand the case to the learned trial Court for proper examination of the accused appellant under Section 313 CrPC or we might have examined him under Section 313 CrPC in this very appeal, but we refrain from doing so for the reasons alluded to hereinbelow. 27. What is utmost importance to note in this case is that the medical evidence, coupled with the report of chemical analysis, clearly reveal that Daliman had died as a result of consumption of carbonate pesticide. The question, therefore, is as to how she happened to have consumed the said pesticide? Was the pesticide self consumed or was the same administered by the accused? Answers to these vital questions are not easy to find. 28. Be that as it may, before answering the above crucial'questions, we would like to mention that the law governing the cases of circumstantial evidence is fairly well established. Was the pesticide self consumed or was the same administered by the accused? Answers to these vital questions are not easy to find. 28. Be that as it may, before answering the above crucial'questions, we would like to mention that the law governing the cases of circumstantial evidence is fairly well established. We may refer, in this regard, to the case of State of UP-Vs-Sukhbasi, AIR 1985 SC 1724, wherein it has been laid down as follows: "......in a case in which the evidence is of a circumstantial nature, the facts and circumstances from which conclusion of guilt is sought to be drawn by the prosecution must be fully established beyond all reasonable doubt and the facts and circumstances so established should not only be consistent with the guilt of the accused, but they must be entirely incompatible with the innocence of the accused and must exclude every reasonable hypothesis inconsistence with his innocence." 29. Since the present case is a case, where no eyewitness is available to reveal before the Court as to how exactly Daliman had died, the present case is a case, which is based on circumstantial evidence. This position is not disputed by the prosecution and/or the defence. To found conviction of the accused on the basis of circumstantial evidence, the settled position of law is that every link in the chain of circumstances pointing towards the guilt of the accused must be clearly established and the chain of circumstances so established shall not only be consistent with the guilt of the accused but that it shall also be inconsistent with his innocence. There is yet another rider attached to the basing of conviction on circumstantial evidence, the rider being that every reasonable hypothesis of the innocence of the accused must be excluded before the conviction is founded on such circumstantial evidence. 30. In the case at hand, since there is no direct evidence on record showing that it was the accused and none but the accused, who had administered pesticide to Daliman, every reasonable possibility of Daliman having consumed pesticide herself or the possibility that some one other than the accused had administered pesticide to Daliman must be excluded. 31. 30. In the case at hand, since there is no direct evidence on record showing that it was the accused and none but the accused, who had administered pesticide to Daliman, every reasonable possibility of Daliman having consumed pesticide herself or the possibility that some one other than the accused had administered pesticide to Daliman must be excluded. 31. Since the evidence on record does not show that Daliman had inimical relation with any one except the accused, it becomes evidence that either Daliman had consumed pesticide herself or it was the accused, who had administered pesticide to her. Before coming to a definite conclusion that the present one is a case of homicide, possibility of Daliman having committed suicide has to be excluded. 32. In view of the fact that the pesticide, which was found in the stomach of Daliman, is a pesticide which is commonly available in the houses of cultivators, it clearly follows that both Daliman as well as the accused could have had access to such pesticide. This apart, while Daliman could have committed suicide for being unable to bear torture at the hands of the accused, the accused too had, at the same time, motive to get rid of Daliman by deciding to kill her in order to marry another woman. 33. Because of the fact that there is, if we may repeat, no cogent evidence on record showing that it was the accused only, who had administered pesticide to Daliman, the possibility that Daliman had consumed pesticide herself as a result of torture suffered at the hands of the accused cannot be boldly excluded. In this view of the matter, one cannot confidently hold that it was the accused, who had administered poison to Daliman, though he had, in the face of the evidence on record, motive to kill Daliman, because he was, according to the evidence on record, keen to marry another woman and was unwilling to live with Daliman. 34. The prosecution is, thus, required to prove convincingly as to whether Daliman had committed suicide or she had been administered pesticide. The evidence adduced in this regard is, sadly enough, inadequate and inconclusive in nature. Without definite conclusion in either way, it is not possible to hold either that the accused had killed Daliman by administering pesticide or that Daliman had committed suicide. The evidence adduced in this regard is, sadly enough, inadequate and inconclusive in nature. Without definite conclusion in either way, it is not possible to hold either that the accused had killed Daliman by administering pesticide or that Daliman had committed suicide. Since the possibility of suicide cannot be boldly excluded, it cannot be held as a corollary that the accused had killed Daliman. The benefit of such uncertain situation must, obviously, go to the accused. The decision of such uncertain situation must, obviously, go to the accused. The decision of the Apex Court in Ramesh Kumar- Vs-State of Punjab, AIR 1994 SC 945 , may be referred to in this regard. Learned Sessions Judge, while convicting the accused relied on the evidence that Daliman's relation with her husband was strained, accused wanted to marry another woman and that the accused had refused to keep Daliman with him. These facts merely show that the accused could have had motive to eliminate Daliman. Why, however, learned Addl. Sessions Judge convicted the accused was that at the time of her death, Daliman was under the custody of the accused and that the accused could not explain as to how pesticide came to be found in the stomach of Daliman. To say the last, the logic applied by the learned Sessions Judge does not impress us inasmuch as it is for the prosecution to prove, excluding all reasonable possibilities of Daliman having self consumed pesticide, that it was the accused, who had administered poison. 35. In view of the fact that the evidence on record reveals that the accused used to assault Daliman, we might have been tempted to remand the case for retiral of the accused on a charge under Section 498 IPC, but in view of the fact that the accused has already undergone imprisonment for a considerable period, we are not inclined to do so. 36. In the result and for the reasons stated, this appeal succeeds. The impugned order of conviction and sentence passed against the accused-appellants are set aside and the accused is directed to be set at liberty forthwith unless he is required to be detained in connection with any other case. Send back forthwith the LCRs with a copy of this judgment and order.