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Gauhati High Court · body

2007 DIGILAW 537 (GAU)

Noor Islam v. State of Assam

2007-08-10

AFTAB H.SAIKIA, H.N.SARMA

body2007
H.N. Sarma, J.:- 1. The impugned conviction and sentence imposed upon the accused appellant by the learned Sessions Judge, Darrang at Mangaldoi in Sessions Case No. 143 (DM)/04 convicting the appellant under section 302 and sentencing him to under go Rigorous Imprisonment for life and to pay fine of Rs. 5,000 in default to undergo further Rigorous Imprisonment for six months, is the subject-matter of challenge in this appeal. 2. We have heard Ms. B. Devi, learned amicus curiae appointed for the accused/appellant and Mr. P.C. Gayan, learned PP, Assam. 3. The criminal proceeding was set into motion against the appellant on lodging an FIR (Ex-3) by one Amizuddin Mandal on 20.3.2003 alleging that around 3.30 P.M. the accused Md. Nur Islam alias Keru resident of Gelaidingi confined his wife Miss Isiran Nessa in his house by closing the doors and killed her by hacking with dao and fled away. 4. On the basis of said information lodged with the O.C., Mangaldoi Police Station, a case was registered as Mangaldoi Police Station Case No. 91/03 under section 302, IPC against the accused appellant. The 1.0. investigated the case and during the course of investigation, I.O. visited the place of occurrence, caused autopsy of the dead body, recorded the statements of different witnesses and after collection of the postmortem report, having found prima facie case, charge sheet was submitted against the accused in the court of learned C.J.M., Mangaldoi . The case being exclusively triable by the Court of Session, was committed to the court of the learned Sessions Judge, Darrang Mangaldoi for necessary trial. The learned Sessions Judge, on the basis of the documents and papers submitted by the investigating agency under section 173, Cr.PC and having both the prosecution and defence framed charges against the accused/appellant under section 302, IPC, and on being explained the charge, he denied the same and claimed to be tried. 5. Accordingly, in order to bring home the charges so framed against the accused, the prosecution examined as many as 9 witnesses including Doctor who conducted the autopsy. At the end of the trial, the learned Sessions Judge, on the basis of the materials which were unfolded by the prosecution witnesses, found the accused guilty of commission of offence under section 302 on account of killing his wife and sentenced him in the manner aforesaid. 6. At the end of the trial, the learned Sessions Judge, on the basis of the materials which were unfolded by the prosecution witnesses, found the accused guilty of commission of offence under section 302 on account of killing his wife and sentenced him in the manner aforesaid. 6. Challenging the conviction and sentence imposed upon the accused/ appellant, the appellant has forwarded an informal appeal from Jail on the basis of which this appeal has been registered and Ms. B. Devi, learned counsel is appointed as amicus curiae to assist the court. During the course of hearing learned amicus curiae has forcefully submitted that on conjoint reading of the statement of the witnesses rendered by the prosecution witnesses, it cannot be safely held that the prosecution could prove the case against the appellant beyond reasonable doubt. Learned amicus curiae further pointed out that there having no eye witnesses to the occurrence, the prosecution, in order to prove the charge is to rely only on the circumstantial evidence which they miserably failed to do and accordingly the conviction and sentence imposed upon the accused cannot be sustained. Learned amicus curiae further submitted that the alleged discovery of Dao, the offending weapon, at the instance of the accused, in the proved facts of the case cannot be said the circumstances leading to discovery under section 27 of the Evidence Act. 7. Per contra, the learned PP referring the FIR, Exbt-1 and statements of P.W.8 submits that the prosecution could prove the case against the accused beyond all reasonable doubt and at the instance of the accused the offending weapon having been recovered from him, such recovery is very strong circumstances against him. That apart, from the evidence of the witnesses, although there is no eye witness in this case, it can safely be held that it is none but the accused who committed the offence and accordingly the learned PP supports the impugned conviction and sentence. 8. We have given our due consideration to the rival submissions made by the learned counsel for both the sides and also meticulously perused the evidence and other relevant materials on record. 9. A noticeable feature in this case is that there is no eye witness to the occurrence, although the occurrence took place in the broad day light at around 3.30 P.M. on 20,3.2003. 9. A noticeable feature in this case is that there is no eye witness to the occurrence, although the occurrence took place in the broad day light at around 3.30 P.M. on 20,3.2003. None of the witnesses found the accused at the relevant time in the place of occurrence, nor any of them deposed to have seen the actual occurrence as a result of which the victim died. 10. P.W. 1 is the informant on whose information the FIR was written by the P.W. 7. P.W. 1 although admitted that he lodged an FIR but he also stated that he did not tell before the I.O. that the accused Noor Islam fled away from the place of occurrence. P.W. 1 was declared hostile and accordingly the prosecution could examined him. The suggestion of the prosecution regarding certain statements made by him during his examination by the I.O. under section 161, Cr.PC has been totally denied by him. In cross he stated that although Ejahar was written as per his words but he did not know what was written in the Ejahar. He specifically denied in cross that he saw the accused at the place of a occurrence nor he did ask about the occurrence. He also stated that he did not tell anything to write in the Ejahar. 11. P.W. 2 is one Allauddin. He is also not an eye witness to the occurrence and he stated, inter alia, that on hearing about the occurrence from the people that the victim was killed he came to the place of occurrence where he found the deceased lying inside the house but he did not find the accused there. He stated that police examined the dead body and prepared the inquest report vide Exbt-1 wherein he put his signature as Exbit-l(1). 12. P.W. 3 is one Bimal Chandra Deka, who is the Gaonbura of the village. In his deposition he stated that on the day of occurrence Allauddin, P.W. 2 informed him that a murder has taken place in the village and the victim was the wife of accused Noor Ali and getting the information he came to the police station wherein he found the accused along with P.W. 2. On his arrival he found police leaving for the place d of occurrence for investigation. He accompanied the police. The police found the dead body lying on the place of occurrence. On his arrival he found police leaving for the place d of occurrence for investigation. He accompanied the police. The police found the dead body lying on the place of occurrence. In Exbt.-l, inquest report he put his signature and his signature is Exbt,-l(2). He did not find Noor Islam, accused. This witness who is the Gaon Bura of the village has also not implicated the accused in any manner. 13. P.W.4, is Biraj Ali who in his chief stated inter alia, that on hearing a commotion on the day of occurrence, he came to the place of occurrence and found the deceased lying dead on the ground inside the house. He saw injuries in her neck, back and in the anus of the deceased. He saw Allauddin, P.W. 2 in the police station. He further stated that the police brought the accused Noor Ali who produced before the Police a 'Machi' dao from the field and the dao was thrown in the cultivation land situated to the north of the accused person's house. He further stated that the accused taken out the same from a small drain near the ridge in the field belonging to the accused and his neighbours. Police seized the dao vide Exbit-2 and Ext-2(1) is his signature. In cross he stated that he did not know who had cut the wife of the accused and none had told who had cut her. On being asked by the learned court, this witness stated that on the day of occurrence he did not see the accused and police brought him after 3A days of the occurrence. 14. P.W.5 is the Doctor Nirmal Chandra Sarmah who caused the autopsy on the dead body of the deceased on which he caused postmortem on 20.3.2003 In his deposition he stated that he found the following injuries on the dead body : "INJURIES, (1) Deep incised wound Right side of face extending to the right ear, 8 cm x 4 cm x 4 cm, right ear is cut through and throughmid point. (2) Incised wound right parietal scalp 5 cm x 4 cm x 1 cm. (3) Deep incised would left side of neck 10 cm x 8 cm x deep x 8 cm involving muscles vessels and cervical vertebrae. (4) Incised wound - occipital region of scalp 5 cm x 3 cm x 2 cm Scalp - injury as described. (2) Incised wound right parietal scalp 5 cm x 4 cm x 1 cm. (3) Deep incised would left side of neck 10 cm x 8 cm x deep x 8 cm involving muscles vessels and cervical vertebrae. (4) Incised wound - occipital region of scalp 5 cm x 3 cm x 2 cm Scalp - injury as described. Skull - intact. Vertebrae - 4th cervical vertebrae intact. Membrane - Intact Brain and spinal cord intact. Pleurae - Healthy Trachea - Intact. Right lung - Healthy. Left lung - Healthy. Pericardium and Heart Healthy. Peritoneum - Healthy. Oesophagus - Healthy, Stomachand its contents - Healthy contains partially digested food. Small intestines etc. contains. Large intestines etc. contain faceal matters. Organs of generation etc, - Healthy Uterus normal size. Other organs healthy. Injuries are antemoratem and homicidal in nature. In my opinion - the death was due to shock and hemorrhage as result of injuries sustained.” He further stated that the injury No. 3 is sufficient to cause the death of a person in the ordinary course of nature. He proved the postmortem report vide Exbit-3 and Exbit-S(1) is his signature. P.W. 5, the Doctor was not cross-examined by the defence. 15. P.W. 6 is Abejuddin Ahmed who deposed that around 3A p.m. on the day of occurrence he came to the house of accused and saw police who recovered dead body of the deceased from his house and he did not see the accused at that time. He is also one of the witness to the inquest, vide Exbit-1. He further stated that he came to know straight from the hires mouth that the accused had cut his wife and fled away from his house and some three days after the occurrence, police had brought the accused under arrest and kept in the police station. In his cross, he admitted that he did not see the occurrence and he came to know from the accused's brother Abejuddin Mandal that the accused fled away after cutting his wife. 16. P.W. 7 is the scribe of the FIR, Exbit-3 who stated, inter alia, that as per instruction of the P.W.I he wrote the FIR wherein he put his signature as Exbit-S(1). He further stated that FIR being read over to the informant he stated the same to be correct and put his thumb impression therein. 17. P.W.8 is Md. 16. P.W. 7 is the scribe of the FIR, Exbit-3 who stated, inter alia, that as per instruction of the P.W.I he wrote the FIR wherein he put his signature as Exbit-S(1). He further stated that FIR being read over to the informant he stated the same to be correct and put his thumb impression therein. 17. P.W.8 is Md. Siddique Ali who deposed that on the date of occurrence/ police came and he also came along with them and they seized material Exbit-1, the Dao. He stated that the said dao was took out by Nur Islam from a nearby canal covered by grass and police seized it vide Exbit-2 wherein he put his signature vide Exbit- 2(2). He identified the material exhibit in the court. In his cross he stated that he came to the place of occurrence as the police came and the dao was recovered after his arrival. 18. P.W.9, Keshab Chetia, is the I.O. of the case. In his deposition he stated that on 20.3.2003 while he was serving as S.I. in the Mangaldoi Police Station, on receipt of the FIR Exbt-3 he was entrusted with the investigation of the case, he visited the place of occurrence and prepared the inquest report and sent the deceased to Mangaldoi Civil Hospital for post mortem examination and seized the dao which was discovered on being led by accused which he kept concealed inside a canal by covering grass, in presence of witnesses vide Exbit-2. He also stated that he recorded the statement under section 161, Cr.PC and arrested the accused and on completion of the investigation and upon procuring the post mortem report submitted the charge sheet against him under section 302, IPC vide Exbit-5. 19. After closure of the prosecution witnesses, the accused was examined under section 313, Cr.PC the learned trial judge having pointed out the above circumstances to the accused by examining him under section 313, Cr.PC he denied the same. However, in answering the question No. 2, the accused stated that the "Isiran Nessa deceased might have sustained those injuries from her beloved". The accused did not adduce any witness. 20. In the light of the prosecution witness as scanned above whether in the absence of any eye witness, the prosecution case goes against the accused by means of circumstances. However, in answering the question No. 2, the accused stated that the "Isiran Nessa deceased might have sustained those injuries from her beloved". The accused did not adduce any witness. 20. In the light of the prosecution witness as scanned above whether in the absence of any eye witness, the prosecution case goes against the accused by means of circumstances. In order to pass a conviction to an accused on the circumstantial evidence, the following conditions must be fully established : (i) That the circumstance from which the conclusion of guilt is to be inferred should be fully established. (ii) That there must be evidence on record which are consistent only with the hypothesis of the guilt of the accused and should not be explainable on any other hypothesis except with the guilt of the accused. (iii) That there must be a complete chain evidence not leaving reasonable ground for the conclusion consistent with the innocence of the accused and it must be shown that in all human probability the act must have been done by the accused. 21. In the instant case the circumstances that sought to be relied on by the prosecution to secure the conviction of the accused are that - (i) the accused committed the crime and immediately fled away from the place of occurrence; (ii) at the instance of the accused the offending weapon, the dao was recovered from the canal which was allegedly kept by him under the grass and (iii) me dead body was recovered from the house of the accused. 22. Now let us examine whether the aforesaid circumstances can be said to have been proved on the basis of the prosecution evidence and if so to what extent. 23. Although in the FIR, Exbit-3, it has been written that after killing his wife by hacking with dao, the accused fled away. P.W. 1, the informant denied the said fact in the court and accordingly he was declared hostile by the prosecution and he was cross-examined and on cross-examination by the prosecution a suggestion was given to him, that he made such statement before the police during the course of investigation and the same also been denied. None of the prosecution witness have deposed that the accused committing crime fled away from the place of occurrence. There is no evidence to this effect. None of the prosecution witness have deposed that the accused committing crime fled away from the place of occurrence. There is no evidence to this effect. The I.O., P.W. 9 also has not stated in his evidence that such statement was h made by the P.W. 1 or any other accused while recording their statement during the course of the investigation under section 161, Cr.PC. In fact, not a single contradiction was proved by the prosecution through the I.O. and in fact such contradiction was not brought to the notice of the I.O. Accordingly, the circumstances of fleeing the accused from the place of occurrence after committing the crime has not been proved by any iota of evidence. 24. So far the circumstance relying to the discovery of the dao from the canal in question at the instance of the accused, after his arrest, thus attracting section 27 of the Indian Evidence Act which is heavily relied on by P.P. we are to see whether the prosecution has been able to prove the necessary ingredients of section 27 of the Evidence Act in the instant case. 25. Section 27 of the Evidence Act is in the nature of an exception to the provision what has been contained in sections 25 and 26 of the Evidence Act. "Under section 27 the prosecution is permitted to prove any fact deposed as discovered in consequence of an information received from an accused in custody of a police officer so much of such information whether it amounts to confession or not as it relates distinctly to the effect establishing the discovery. Thus, the prosecution is permitted to prove under section 27, although the accused made such statement while in police custody, those information and fact as referred to above leading to the discovery. In order to attract section 27, the prosecution must establish that the information given by the appellant led to the discovery of some fact deposed by him. It is evident that the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused. The essential ingredient of the section is that the information given by the accused must lead to the discovery of the fact which is the direct outcome of such information. The essential ingredient of the section is that the information given by the accused must lead to the discovery of the fact which is the direct outcome of such information. Secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused. Thirdly, the discovery of the fact must relate to the commission of the offence. The embargo on statements of the accused before the police will not apply if all the above conditions are fulfilled." [See 1969(2) SCC 872 ]. 26. Again the Apex Court in the case ofHimachal Pradesh Administration v. Shri OM Prakash, (1972) 1 SCC 249 , held as follows : "(v) Section 27 of the Evidence Act which makes the information given by the accused while in custody leading to the discovery of a fact and the fact admissible, is liable to be abused and for that reason great caution has to be exercised in resisting any attempt to circumvent, by manipulation or ingenuity of the Investigating Officer, the protection afforded by section 25 and section 26 of the Evidence Act. While considering the evidence relating to the recovery there should be exercise of that caution and care which a necessary to lend assurance that the information furnished and the fact discovered is credible. But evidence relating to recoveries is not similar to that contemplated under section 103 of the Criminal Procedure Code where searches are required to be made in the presence of two or more inhabitants of the locality in which the place to be searched is situate. In an investigation under section 157 the recoveries could be proved even by the solitary evidence of the Investigating Officer if his evidence could b otherwise be believed, it cannot as a matter of law or practice be laid down that where recoveries have to be effected from different places on the information furnished by the accused different sets of persons should be called in to witness them. In this case P.W. 2 P.W. 8 who worked with the deceased were the proper persons to witness the recoveries as they could identify some of the things that were missing and also they could both speak to the information and the recovery made in consequence thereof as a continuous process. In this case P.W. 2 P.W. 8 who worked with the deceased were the proper persons to witness the recoveries as they could identify some of the things that were missing and also they could both speak to the information and the recovery made in consequence thereof as a continuous process. (vi) A fact discovered within the meaning of section 27 must refer to a material fact to which the information directly relates. In order to render the information admissible the fact discovered must be relevant and must have been such that it constitutes the information through which the discovery was made. What should be discovered is the material fact and the information that is admissible is that which has caused that discovery so as to connect e the information and the fact with each other as the 'cause and effect'. That information which does not distinctly connect with the fact discovered or that portion of the information which merely explains the material thing discovered is not admissible under section 27 and cannot be proved. The concealment of the fact which r is not known to the police is what is discovered by the information and lends assurance that the information was true. No witness with whom some material fact such as the weapon of murder, stolen property or other incriminating article is not hidden, sold or kept and which is unknown to the police can be said to be discovered as a consequence of the information furnished by the accused. What makes the information leading to the discovery of the witness admissible is the discovery from him of the thing sold to him or hidden or kept with him which the police did not know until the information was furnished to them by the accused. A witness cannot be said to be discovered if nothing is to be found or recovered from ft him as a consequence of the information furnished by the accused and the information which disclosed the identity of the witness will not be admissible." 27. A witness cannot be said to be discovered if nothing is to be found or recovered from ft him as a consequence of the information furnished by the accused and the information which disclosed the identity of the witness will not be admissible." 27. Apart from the I.O. although prosecution relied on the statement of P.W.4, Gaonbura and P.W.6 as a witness to the recovery of the dao at the instance of the accused in purported compliance of section 27 of the Evidence Act, from the reading of their evidence of P.W. 4 and P.W. 8, we find that both of them deposed that dao they saw was recovered at the instance of the accused on the date of occurrence. On the other hand, from the record we find that the accused was arrested ¾ days after the date of occurrence when he led I.O. to the hiding place of dao where from it was discovered. Thus there is a glaring and material contradiction between the prosecution witnesses itself relating to the date and manner of recovery of the offending weapon, dao. That apart, neither the I.O. not any other witness have stated the exact nature of information in the words of the accused which was provided by him leading to the discovery of the dao. On close scrutiny we find that the necessary ingradients for taking aid of provision of section 27 of Evidence Act could not be proved by the prosecution. What is material in such case is the information given by the accused and the prosecution could not prove such information. 28. Coming to the last and final circumstances relied on by the prosecution, it is an admitted fact that the deceased was the wife of the accused. Admittedly, both of them resided together in the same house which is also borne out from the evidence of P.W.I. In such circumstances recovery of the dead body from her own house cannot be said an incriminating circumstances against the accused. 29. The discussion made above leads to come to a finding that the circumstances which relied by the prosecution against the accused could not be proved. In fact, the prosecution did not make any attempt to prove the contradiction stated to have appeared in the statement of the prosecution witness with that of their previous statement given at the time of investigation. In fact, the prosecution did not make any attempt to prove the contradiction stated to have appeared in the statement of the prosecution witness with that of their previous statement given at the time of investigation. In the absence of proof of such contradiction we are not required to harp upon the statement of the witnesses recorded at the time of investigation under section 161, Cr.PC which are inadmissible in law. We may observe herein that in this case the prosecution agency was not at-all serious to prove the prosecution case in the manner as it was required by law. In view of the aforesaid discussion, we hold that the prosecution miserably failed to prove the charge levelled against the accused/appellant beyond all reasonable doubt by clear, cogent and unimpeachable and reliable evidence or circumstances. 30. Consequently, the impugned conviction and sentence of the accused cannot be sustained under the law and it has to be set aside which we accordingly do. Lastly, the impugned conviction and sentence imposed upon the accused is set aside and quashed and the accused/appellant be set at liberty forthwith, if he is not required in connection with any other case. 31. The appeal stands allowed.