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2008 DIGILAW 502 (GAU)

Abu Taher Sk. v. State of Assam

2008-07-16

AMITAVA ROY, H.BARUAH

body2008
JUDGMENT Amitava Roy, J. 1. The judgment and order dated 11.01.2002, passed by the learned Additional Sessions Judge (Ad-hoc) at Kokrajhar in Sessions Case No. 3/1996, convicting the accused/appellant under Section 302IPC and sentencing him to imprisonment for life and to pay a fine of Rs. 5,000/-, in default to suffer further 1 year simple imprisonment, forms the subject matter of the present appeal. 2. The appellant, in jail, has questioned the legality and/or the validity of his conviction as well as the sentence referred to hereinabove. 3. We have heard Ms. S.D. Baruah, learned Amicus Curiae for the appellant and Mr. Z Kamar, learned Public Prosecutor, Assam for the State. 4. The prosecution case opens with an FIR lodged with the Officer-in-Charge, Tulsibil Police Out-Post on 20.07.1994, whereby Md. Nurul Islam Mandal alleged that about 11.45 p.m. on 19.07.1994 his younger sister Hasina Bibi was killed by her husband Md. Abu Taher Seikh, the accused/appellant. The FIR disclosed that the dead body had been left abandoned in a broken room in the backyard of the house of one Md. Samsul Haque. On the basis of the information so lodged, a GDE No. 374 was made in the aforementioned out-post and the same was forwarded to the Gossaigaon Police Station, where a case being Gossaigaon P.S. Case No. 101/94, under Section 302 IPC was registered. The police, on completion of the investigation laid the charge-sheet against the accused/appellant under Section 302 IPC. The case being Sessions triable, the same was committed to the Court of Sessions Judge, Kokrajhar, who having framed the charge against the accused-appellant under the aforementioned provision of law, the accused/appellant pleaded "not guilty". The prosecution examined 10 witnesses including the Investigating Officer, whereafter, the statement of the accused under Section 313 Cr.P.C. was recorded. He declined to adduce any evidence in defence. The learned Court below on a consideration of the evidence on record and after hearing the learned Counsel for the parties, recorded the conviction and sentence referred to hereinabove. 5. The learned Amicus Curiae has emphatically urged that the prosecution having failed to prove the charge against the accused/appellant beyond all reasonable doubt, the impugned conviction and sentence, is on the face of the record, illegal and is liable to be interfered with. 5. The learned Amicus Curiae has emphatically urged that the prosecution having failed to prove the charge against the accused/appellant beyond all reasonable doubt, the impugned conviction and sentence, is on the face of the record, illegal and is liable to be interfered with. She urged that not only there is ho eye-witness to the alleged incident, even the circumstantial evidence said to be existing against the accused/appellant, having regard to the law on the subject, cannot be considered to be clinching to hold him guilty of the offence charged. In support of her contentions, the learned Amicus Curiae has taken us exhaustively through the evidence on record. To buttress her arguments, she has submitted that in the instant case not only the postmortem report had not been proved by a Doctor, the seized articles allegedly containing bloodstains, have not been sent for forensic examination. According to her, therefore, there is no evidence worth the name against the accused/appellant to establish even a remote nexus between him and the offence alleged. 6. The learned Public Prosecutor, on the other hand, has urged that notwithstanding the fact that there is no eye-witness to the incident in the instant case, the incriminating circumstances appearing against the accused/appellant if taken in a chain, unerringly establish his guilt and, therefore, the learned Court below was perfectly justified in passing the impugned judgment and order. According to the Mr. Kamar, having regard to the relationship between the accused/appellant and the deceased as well as the negligible time lag between the factum of missing of the deceased from her house and the location of her dead body, the unmistakable inference is that the accused/appellant is the person, who is guilty of the offence charged. He, with reference to the evidence on record, also emphasized that the evidence of the existence of a dragging mark of a heavy object from the house of the accused/appellant to the place where the dead body was ultimately found, is an unmistakable indicator of the accused/appellant's complicity in the offence. He, therefore, submitted that the aforementioned circumstances taken together provide an indubitable testimony against the accused/appellant and the same establishes his guilt beyond all reasonable doubt. In support of his contentions, Mr. Kamar, has placed reliance on the decisions of the Apex Court in Ram Singh v. Sonia and Ors. He, therefore, submitted that the aforementioned circumstances taken together provide an indubitable testimony against the accused/appellant and the same establishes his guilt beyond all reasonable doubt. In support of his contentions, Mr. Kamar, has placed reliance on the decisions of the Apex Court in Ram Singh v. Sonia and Ors. 2007 CriLJ 1642 and Swamy Shraddananda @ Murali Manohar Mishra v. Stale of Karnataka AIR 2007 SC 2531 . 7. We have extended our anxious consideration to the arguments advanced. Admittedly, in the instant case, there is no eye witness of the alleged offence. The prosecution has relied on circumstantial evidence against the accused/appellant, which weighed with the learned Court below resulting in his conviction and sentence as above. In the above factual premise, to folly appreciate the rival submissions, it would be indispensable to survey the evidence briefly. 8. PW 1, Md. Raijuddin deposed that while he was sleeping at about U/l 1.30 p.m. in the night of the occurrence, he heard the accused/appellant moving to and fro on the road by shouting that Madani's mother was lying dead at Samsul's house. The witness disclosed that the accused/appellant was thereby referring to his wife Hasina Bibi. He then woke up his younger brother Samad (P W 2) and went out of the house and on the way met Nurul (PW2) and Abed (PW 5) and revealed to them the utterances of Taher. When they reached the house of Taher, they found him sitting there. They then went to the house of Samsul and could detect the dead body lying in the backyard of Samsul's house. The witness stated that they saw a mark of something heavy being dragged from the house of the accused/appellant to the house of Samsul Mistry. He stated that the accused/appellant (Taher) was not seen thereafter. In cross-examination, however, this witness conceded that he did not find any injury on the body of the deceased. 9. PW 2, Samad Ali deposed that his brother Raijuddin (PW 1) had woken him from sleep in the night of the occurrence informing that the accused/appellant had confided in him that his wife was lying dead in the house of Samsul Mistry. As they went out of the house in search of the dead body, they met Nurul and Abed on the way. They went to the house of Samsul Mistry and located the dead body there. 10. As they went out of the house in search of the dead body, they met Nurul and Abed on the way. They went to the house of Samsul Mistry and located the dead body there. 10. PW 3, Nurul Islam Mandal, the brother of the deceased stated that Abed (PW 5) and Kader Ali (PW 6) had been to their house in the night of the occurrence and informed them that Hasina Bibi was missing. They then went to the house of the Taher and found the door of the house open. Though, the children of Taher were sleeping inside but Hasina was nowhere. The witness stated that he found a long blood stained piece of bamboo on the chair inside the house. He also testified to have seen some spilled blood on the ground. As they continued to search for Hasina, they were informed by Raijuddin (P W1) and Samad (PW2) that she was lying dead in the backyard of the house of Samsul Mistry. When they visited the place, they found the dead body there. The witness proved the Ejaharas Ext. 1 with Ext. 1 (1) as his signature. He also proved the inquest report as Ext. 2. He further stated that the police on visiting the place of occurrence had seized a piece of bamboo measuring about four cubits in length, rolling pin and a shirt, the sleeves whereof were stained with blood. He also proved the seizure list as Ext. 3. In cross-examination, the witness conceded that he had not seen, who had killed his sister. He also admitted that he had seen any injury mark on the dead body in the night. He stated that the seized articles were not in Court. 11. PW 4, Abdul Kuddus also deposed that at about 11 p.m. or 12 a.m. in the night of the occurrence, as he came out of the house on hearing a din he met one Aimuddin, who disclosed that the accused/appellant was moving helter skelter shouting that his wife was missing. The witness sometime, thereafter, having heard shouts from the side of Samsul's house, went there and found the dead body. The witness stated that it was discussed there that the accused/appellant had killed his wife and, thereafter had kept the body behind the broken room of Samsul's house. In cross-examination, the witness conceded that he had not seen the occurrence. 12. The witness stated that it was discussed there that the accused/appellant had killed his wife and, thereafter had kept the body behind the broken room of Samsul's house. In cross-examination, the witness conceded that he had not seen the occurrence. 12. PW 5, Abed Ali stated that in the night of the occurrence the accused/appellant told him that his wife was not to be found. The witness then went to the house of the father-in-law of the accused/appellant and told the inmates about the development. He along with others then went to the place, whereby the dead body was found lying with injury on her neck. The witness stated that the accused/appellant was, thereafter, untraceable. He proved the Material Ext. 1, a bamboo peg, Material Ext. 2, a rolling pin and Material Ext. 3, a shirt. He further stated that the seized articles were stained with blood. According to him, the ground was also stained with blood. 13. The evidence of the PW 6, Abdul Kader, is substantially in the same lines as that of PW 5, except that she did not mention anything about the seizure. 14. PW 7, Ashraful Islam Mandol, the brother-in-law of the deceased did not say anything about the developments in the night. He simply stated that he was informed in the night by Abdul Kader (PW 6) and Nazrul Islam Mandol that the wife of the accused/appellant was missing. His elder brother, however, accompanied Abdul Kader (PW 6), asking him to stay back in the house. The witness stated that it was in the next morning that he went to the house of Samsul Mistry and found the dead body there. 15. PW 8, AbulKalam Mandol stated that Nurul Islam Mandol (PW 3) had called him at about 2/2.30 a.m. in the night of the occurrence and told that Hasina Bibi had been done to death by the accused/appellant. He then went to the house of Samsul Mistry and found the dead body there. The witness stated that Nurul Islam Mandol disclosed to him that Hasina Bibi had been strangulated to death. The witness then being asked, wrote the FIR, which he proved as Ext. 1 with Ext. 1(2) to be his signature thereon. He also proved the seizure list as Ext. 3, with Ext. 3(2) his signature thereon as well as the seized articles. 16. The witness then being asked, wrote the FIR, which he proved as Ext. 1 with Ext. 1(2) to be his signature thereon. He also proved the seizure list as Ext. 3, with Ext. 3(2) his signature thereon as well as the seized articles. 16. PW 9, Nazrul Islam Mandol, the brother-in-law of the accused/appellant stated substantially in the same lines referring to the developments happening in the night of the occurrence. He stated that he was informed by Abdul Kader (PW 6) and Abed Ali (PW5) that Hasina Bibi was missing from her house. He, eventually reached the house of Samsul Mistry, where the dead body was found lying. The witness conceded that he did not know how Hasina Bibi had died. He, however, affirmed mat he saw blood stain on the apparel of the deceased. 17. PW 10, Fazlul Haque is the Investigating Officer, who stated that on receiving the Ejahar he went to the place of occurrence, prepared the inquest report which he proved as Ext. 2 with Ext. 2 (3) as his signature. He, thereafter, forwarded the dead body to the hospital for postmortem examination and made seizure of the articles referred to hereinabove vide seizure list Ext. 3. 18. Noticeably, the prosecution for reasons best known to it, has not proved the postmortem report, though the same is available on records. No doctor has also been examined to explain the nature, cause and time of the injuries found on the deceased. The proximate cause of the death is not forthcoming. Admittedly, as well, though the prosecution claims that the articles, as referred to hereinabove, had been seized by the police, none of those was subjected to forensic examination, in absence whereof, there is no tangible evidence to establish a nexus between the same and the alleged offence. True it is that the accused/appellant and the deceased are matrimonially related and that there appears to be no intervention of any third party at or about the time of the occurrence. The conduct of the accused/appellant in running about in the night shouting that his wife is missing and the detection of the dead body behind an abandoned house, in our opinion, does not conclusively establish to the hilt his guilt. The conduct of the accused/appellant in running about in the night shouting that his wife is missing and the detection of the dead body behind an abandoned house, in our opinion, does not conclusively establish to the hilt his guilt. The two circumstances, namely, the existence of a sign of dragging of something heavy from the house of the accused/appellant to the place where the dead body was ultimately found lying and his (accused/appellant's) absence from the scene immediately thereafter, ipso facto, in our estimate, do not provide the required convincing and persuasive evidence to establish his involvement in the offence charged. The above deficiencies coupled with the fact that there is no eye-witness to the occurrence, in our view, compel us to conclude that the prosecution has not been able to prove beyond all reasonable doubt the charge against the accused/appellant proposition of law contained in the decisions cited on behalf of the prosecution, have to be applied to the facts and circumstances of each case, which in our view does not further the prosecution case in the attendant fact situation. 19. The circumstances proffered by the prosecution, do not form a continuous chain of events to proclaim an unerring testament of guilt of the accused/appellant leaving no manner of doubt of his innocence. 20. In the above view of the matter, we find merit in the appeal Resultantly, the impugned judgment and order is interferred with and is set aside. 21. The accused/appellant is hereby set at liberty forthwith.