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2007 DIGILAW 428 (JHR)

Md. Yusuf v. State Of Jharkhand

2007-05-16

DABBIRU GANESHRAO PATNAIK, DILIP KUMAR SINHA

body2007
JUDGMENT D.G.R. Patnaik, J. 1. Both the appellants were tried and convicted for offences under Sections 302/34 of the Indian Penal Code and sentenced to undergo imprisonment for life by the judgment of conviction rendered by the Trial Court. 2. The gist of charge, as framed against them is that on the night of 25/ 26th March, 1991, in furtherance of their common intention, the appellants committed murder of Amilan Nisha, wife of the appellant No. 1, in the house of the appellants within village Borobin, P.S. Ramgarh, District Hazaribagh. The case was registered on the basis of the Fardbeyan of the informant namely Md. Tasaur Ansari (PW9) who is the brother of the deceased, recorded by the SI of Police, Chandra Bhushan Prasad Singh, on 26.3.1991 at 15.30 hours. Case of the prosecution, in brief, is that the deceased namely Amilan Nisha, was married to the appellant No. 1 on 25.5.1990. After her marriage, she went to her matrimonial house where she lived for two/three months whereafter her husband brought her and left her at her paternal house refusing to allow her to live with him on the ground that she used to discharge urine on the bed during night. After some medical treatment, she became normal whereafter she went back to her matrimonial house where she lived for about four months. During this period, her brother (the informant) used to make frequent visits to her and at that time, she used to complain that her husband and mother-in-law, namely the appellants herein, used to assault her and ill-treat her. About 11/2 months prior to the date of the occurrence, the husband brought her back to the house of the informant after assaulting her and had left her there. At that time, she was in her advanced stage of pregnancy. Later, her husband along with his brother-in-law visited the informants house and took her back to her matrimonial house with an assurance that he would treat her well. On the date of occurrence i.e. 26.3.1991, the husband of the deceased came to the house of the informant (PW9) and informed that his wife (deceased) had died on account of abdominal pain. The informant along with co-villagers went to the house of the appellants where he found his sister lying dead. Some froth was seen coming out of her nose and there were marks of violence on her body. The informant along with co-villagers went to the house of the appellants where he found his sister lying dead. Some froth was seen coming out of her nose and there were marks of violence on her body. The informant was told by the villagers that on the previous night, the deceased was assaulted by her husband and mother-in-law and they had administered poisonous substance to the deceased causing her death. On receipt of information, the police (PW10) arrived, saw the dead body, prepared inquest and forwarded the dead body for post-mortem examination. The Doctor (PW1) who had conducted autopsy on the dead body of the dead lady had found following ante mortem injuries on the body: (i) Both eyes were closed, blood was coming out from her nose and mouth; (ii) Ligature marks on the neck; (iii) Thrombosied vein on the chest and lower abdomen; tracheal valve collapsed, hyoid bones fractured. Ribs on the right side, 3rd to 6th, were found fractured at costocordinal junction. The appellants, in their defence, pleaded not guilty to the charge, claiming their implication in the case on false accusation. 3. As many as ten witnesses were examined by the prosecution at the trial. These witnesses, including the informant (PW9), another brother of the deceased (PW 8), the doctor who had conducted the post-mortem examination on the dead body of the deceased (PW1) and the investigating officer (PW10). The learned Trial Court placed reliance on the testimony of the informant finding support from the evidences of PW 8 and that of the doctor PW10 and recorded its finding of guilt against both these appellants for committing murder of the deceased. 4. Mr. G.C. Sahu, learned Counsel for the appellants has assailed the impugned judgment of conviction of the appellants on the ground that the findings recorded by the learned Trial Court is against the weight of evidence on record and that the learned Trial Court has erred in placing implicit reliance on the testimony of the informant and that of the PW8 despite the fact that neither of these witnesses were eye-witnesses to the alleged murder of the deceased and despite the fact that both of them being the nearest relations of the deceased, were highly interested witnesses whose testimony did not find adequate corroboration. Learned Counsel explains further that the Trial Court has failed to consider that there was no direct evidence regarding the alleged assault on the deceased and the circumstance which the prosecution has tried to put forth through the aforesaid witnesses do not complete the chain of circumstances nor does it lead to any definite conclusive inference of guilt against these appellants. Learned Counsel adds further that the learned Court below has failed to consider the inconsistencies in the ocular testimony of the witnesses and the medical evidence inasmuch as though the prosecution vide the First Information Report (FIR) claims that the deceased died on account of administering poisonous substance to her, the medical report does not confirm that the death was caused on account of poisoning. Learned Counsel adds that the opinion of the doctor (PW1) that the death of the deceased was on account of strangulation is not definite and conclusive and cannot be relied upon. Learned Counsel explains that in case of strangulation, there should have been nail or finger marks on the neck and fracture of the larynx and trachea. In the present case, the doctor has admitted that he had not found any such marks, nor did he find the larynx or trachea of the deceased fractured. Learned Counsel argues further that the opinion of the doctor, that the death of the deceased was on account of strangulation cannot be considered as conclusive since it leaves scope to the probability of death being caused other than by way of strangulation. Learned Counsel in this context places reliance on the judgment of the Calcutta High Court reported in 1970 Cr LJ 403. Referring to the evidence of the informant (PW9) and that of his brother (PW8), learned Counsel explains that though both these witnesses claim that the deceased used to suffer ill-treatment besides mental and physical cruelty at the hands of the appellants, but they admit that no complaint was ever lodged either by the deceased or by the witnesses before any authority, including the local Gram Panchayat and neither has any independent witness come forward to support the aforesaid allegation against these appellants. Learned Counsel adds further that even otherwise, neither of these witnesses claim to have seen the actual assault made by the assailants on the deceased and they admittedly rely upon unconfirmed statements of the villagers whose identity has not been disclosed. Learned Counsel adds further that even otherwise, neither of these witnesses claim to have seen the actual assault made by the assailants on the deceased and they admittedly rely upon unconfirmed statements of the villagers whose identity has not been disclosed. Inviting attention to the evidence of PW8 who has claimed that prior to the death of the deceased while she was living in the house of the informant, it was her husband (appellant No. 1) and the brother-in-law of the appellant No. 1 who had visited the house of the informant for taking back the deceased to her matrimonial house and after her departure from the house of the informant, the deceased was found dead in the house of the appellants. Learned Counsel explains that the brother-in-law of the appellant No. 1 has not been examined by the prosecution. It is further submitted that the Trial Court ought to have considered the fact that it was the appellant No. 1 who had informed the informant about the death of the deceased and both these appellants were continuously present in their house as would be evident from the fact that they were arrested on the same day (on the date of the institution of the case). Learned Counsel tries to explains that had the appellants been guilty of the charge, they would have absconded. Referring to the evidence of the investigating officer, learned Counsel submits that though the prosecution has claimed that the deceased was subjected to violence, but the investigating officer did not find any marks of violence on the alleged place of the occurrence, nor did he find any incriminating article at the place of the occurrence. Learned Counsel argues that on reading the evidence of PW 8 and 9, the invariable inference would be that none of them can be considered as wholly reliable. Relying upon the judgment of the Supreme Court in the case of Marwadi Kishor Parmanand v. State of Gujarat , the learned Counsel explains that the principles of appreciation of evidence is that conviction of the accused can be sustained only if the evidence of the witness is wholly reliable and may acquit, if it is wholly unreliable, and must look for corroboration, if it is neither wholly reliable nor wholly unreliable. 5. 5. Learned Counsel for the State controverts the entire grounds advanced on behalf of the appellants and submits that the findings of the learned Trial Court against the appellants is based on the evidence of the informant and that of the PW8, besides the evidence of PWs 2 and 3 who are witnesses to the inquest and the evidence of the doctor who had conducted autopsy on the dead body of the deceased. Learned Counsel explains that the circumstance in which the dead body of the deceased was found in the house of the appellants, marks of violence on her body and cause of death being ante mortem injuries on the dead body of the deceased suggesting strangulation as opined by the doctor lead to the conclusive inference that both these appellants were responsible for the homicidal death of the deceased. 6. It appears from the records that out of ten witnesses examined by the prosecution, PWs 5 and 6 had failed to support the prosecution case and were declared hostile. PWs 4 and 7 were tendered by the prosecution for their respective cross-examination by the defence. PWs 2 and 3 claim themselves to be witnesses to the inquest prepared by the police officer in respect of the dead body of the deceased. The prosecution has thus relied upon the testimony of the informant (PW9) and that of his brother PW8, besides the evidence of inquest witness and the doctor (PW1) and of the investigating officer (PW10). 7. The evidence of PWs 8 and 9 may be categorized in two parts: The first part relating to the alleged ill-treatment of the deceased by the appellants and the alleged hostile attitude of the appellants towards her suggesting lack of cordial relationship between the deceased and the appellants. The second part of the evidence relates to the discovery of the dead body of the deceased within the house of the appellants with marks of injuries on her body. 8. PW9 has virtually reiterated his statement as earlier recorded in his Fardbeyan. He has confirmed that within a few months of her marriage, the appellant No. 1 had brought her back to her paternal house refusing to allow her to live with him stating that she used to discharge urine on the bed at night. 8. PW9 has virtually reiterated his statement as earlier recorded in his Fardbeyan. He has confirmed that within a few months of her marriage, the appellant No. 1 had brought her back to her paternal house refusing to allow her to live with him stating that she used to discharge urine on the bed at night. Later on, after being cured on medical treatment, she went back to her matrimonial house only to be brought back again by her husband to her parental house. He further confirms that during her last visit to her house, he found that the deceased was in advanced stage of her pregnancy. He has also confirmed that it was the appellant who along with his brother-in-law, Md. Zahur had visited his house with their offer to take back the deceased with the assurance of proper treatment not only by the appellants, but also by the brother-in-law of the appellant, whereafter the deceased went along with them to her matrimonial house accompanied by the informants brother. He has also confirmed that in the morning of 25.3.1991, his brother-in-law namely appellant No. 1 came to his house and informed him about the death of the deceased and on such information, the informant went to the house of the appellants where he saw his sister lying dead with marks of injuries on her body at several places. The evidence of this witness relating to ill-treatment meted out to the deceased at the hands of her husband has not been dislodged by the defence in his cross examination. 9. The evidence of PW8 corroborates the entire evidence of PW9, both in respect of ill-treatment of the deceased and the fact that a few days prior to the date of the occurrence, the appellant No. 1 along with his brother-in-law had visited the informants house and had taken back the deceased to her matrimonial house and soon thereafter information concerning her death was received from the appellant No. 1 and the dead body of the deceased was found with marks of injuries on the body within the house of the appellants. Mere fact that no complaint in respect of the cruelty and spiteful behaviour of the husband against the deceased was lodged at the police station or village Panchayat cannot be considered to be a circumstance for disbelieving the testimony of these witnesses. Mere fact that no complaint in respect of the cruelty and spiteful behaviour of the husband against the deceased was lodged at the police station or village Panchayat cannot be considered to be a circumstance for disbelieving the testimony of these witnesses. The evidence of PWs 2 and 3 also corroborates the evidence of PWs 8 and 9 since both these witnesses confirm that the deceased used to be illitreated by her husband and mother-in-law. PWs 2 and 3 have also confirmed that they too had seen the deceased lying dead within the house of the appellants with marks of injuries on the body of the deceased who used to live in the exclusive company of the present appellants in their house. These witnesses have further confirmed that the police officer had visited the house of the appellants and had prepared the inquest report of the dead body of the deceased in their presence. 10. The evidence of these witnesses though not direct on the point of assault, they point out certain specific circumstances which are relevant for determination of the issue as to whether these appellants are responsible for the death of the deceased. These circumstances are : (a) that the deceased was the legally married wife of the appellant No. 1; (b) that during her sojourn at her matrimonial house, she used to live in the company of her husband and the mother-in-law, namely the appellants; (c) that the relation between the deceased and her husband was extremely strained due to which the appellant No. 1 refusing to accept her at his house, used to bring and leave her at the house of her parents for months together; (d) that in course of her meetings with her brother, the deceased used to complain about the ill treatment meted out to her by her husband and mother-in-law; (e) that a few days prior to her death, the deceased while living at the house of her brother (informant) it was her husband who along with his brother-in-law had visited the informants house and had taken her along with them to her matrimonial house; (f) the deceased thereafter remained at her matrimonial house in the exclusive company of these appellants; (g) that the dead body of the deceased was discovered within the house of the appellants with marks of injuries on her body. 11. 11. The evidence of the doctor (PW1) confirms that the deceased had suffered homicidal death on account of ante mortem injuries inflicted on her. He had also found that the deceased was pregnant and a full grown up female child was found in the womb of the deceased. The doctor has opined that the cause of death was asphyxia due to strangulation and the time elapse since death was 36 hours. 12. The defence has expressed its reservation on the opinion of the doctor regarding the cause of death of the deceased, though not the opinion regarding the time elapsed since death till the post-mortem. The fact that the deceased suffered homicidal death on account of the ante-mortem injuries stands established beyond doubt. As regards the place of occurrence, besides the evidence of the witnesses that they had found the dead body of the deceased within the house of the appellants, it is in the evidence of the investigating officer (PW10) that on his visit to the house of the appellants, he had found the dead body of the deceased lying on a cot in the courtyard of the house. He has also explained that though in the room adjacent to the courtyard, he had not found any marks of violence, but he found clothes lying scattered on the floor. He confirms that he had found marks of injuries on the body of the deceased and he had recorded his observation of the injuries in the inquest report prepared by him. PWs 2 and 3 support the fact that the police officer had seen the dead body and had prepared inquest report at the house of the appellants. Thus, the prosecution has led cogent and reliable evidence to prove the fact that the deceased had suffered fatal injuries within the house of the appellants and that her death was on account of the injuries caused by strangulation. 13. The aforementioned circumstances including the circumstance that the deceased suffered death on account of strangulation while living in the exclusive company of the appellants in their house are linked together in a chain. Circumstances in which the deceased had sustained fatal injuries resulting in her death are not disclosed though the circumstances were within exclusive knowledge of the appellants. Failure on the part of the appellants to make the essential disclosure or explain only leads to an adverse inference against them. 14. Circumstances in which the deceased had sustained fatal injuries resulting in her death are not disclosed though the circumstances were within exclusive knowledge of the appellants. Failure on the part of the appellants to make the essential disclosure or explain only leads to an adverse inference against them. 14. Each of the above enumerated circumstances has been firmly and cogently established by the prosecution and these circumstances taken together form a complete chain unerringly pointing to the guilt of the appellant No. 1 for the homicidal death of the deceased. The testimonies of the witnesses do confirm that it was the appellant No. 1, who being the husband of the deceased, was mainly responsible for subjecting the deceased to ill-treatment and cruelty in his house and in his company. The deceased did not enjoy peaceful conjugal life with the appellant No. 1. The testimonies of all the witnesses also categorically point out that it was the appellant No. 1 who, a day prior to the date of death of the deceased had brought her from her paternal house to his own house. Further evidence against him is that though he informed about the death of the deceased, but he tried to mislead the cause of death by stating before the informant that the deceased had died on account of abdominal pain, whereas the fact, as per the definite evidence, to the contrary, reveals that the deceased was brutally assaulted resulting in fracture of her ribs and damage to the body below ribs and was finally strangulated to death. The inference from these circumstances does consistently point towards the guilt of the appellant No. 1. As regards appellant No. 2, though the evidence on record indicates that she was also present and living along with the appellant No. 1 and the deceased in the house from where the dead body of the deceased was recovered, but beyond this, there is no clinching evidence to suggest that the appellant No. 2 had displayed or demonstrated any aggressive conduct against the deceased or that she had aided and abetted the appellant No. 1 in causing the death of the deceased. The circumstance that the appellant No. 2 was present in the house when the deceased suffered fatal injuries and the fact that she has not offered any explanation as to the cause of fatal injuries on the deceased may suggest incriminating circumstance against appellant No. 2, but in absence of any evidence to suggest that she had also actively shared any ill-will or spite against the deceased to the extent of contemplating her death, the chain of circumstances remains incomplete against her and for this reason, the appellant No. 2 deserves benefit of doubt. 15. Learned Trial Court has, though considered and discussed the evidences on record, taking note of each of the incriminating circumstances appearing in the evidences of the witnesses, has rightly recorded its finding of guilt against the appellant No. 1, but has failed to observe that the chain of circumstances are not complete against the appellant No. 2. 16. In the light of the above discussions, the conviction of the appellant No. 1 for the offence under Section 302 of the Indian Penal Code is sustained and this appeal as related to him is hereby dismissed. However, extending the benefit of doubt to the appellant No. 2, her conviction for the offence under Sections 302/34 of the Indian Penal Code is hereby set aside. The appellant No. 2 is on bail. She is acquitted of the charge and is absolved from the liabilities of her bail bond.