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2009 DIGILAW 247 (GAU)

Samar Ali v. State of Assam

2009-04-09

BIPLAB KUMAR SHARMA, RANJAN GOGOI

body2009
JUDGMENT Ranjan Gogoi, J. 1. This appeal is directed against the judgment and order dated 16.9.2002 passed by the learned Ad-hoc Addl. Sessions Judge (FTC), Sonitpur, Tezpur in Sessions Case No. 147(S)/02. By the aforesaid judgment and order, the accused-Appellant has been convicted for the offence under Section 302 IPC and sentenced to undergo rigorous imprisonment for life. Furthermore, a fine of Rs. 1000/-, in default, to undergo simple imprisonment for two months has also been imposed on the accused-Appellant. 2. The prosecution case in short is that on 15.11.2001 at about 10.30 a.m. P.W. 2, Abdul Mannas lodged a F.I.R. before the Officer-in-Charge, Dhekiajuli Police Station stating that his sister, one Suraj Banu, had been given in marriage to the accused-Appellant about eight months back. According to the first informant, in the early hours of 15.11.2001 he got information that Suraj Banu's dead body was lying besides the road in front of the house of one Samar Ali. In the FIR filed, it was further stated that the first informant along with others went to the spot and saw the dead body of his sister with cut injuries on her neck. It was specifically stated in the FIR filed that the first informant suspected that the accused-Appellant had killed his sister Suraj Banu. 3. On receipt of the aforesaid F.I.R., Dhekiajuli P.S. Case No. 264/01 under Section 302 IPC was registered, In the course of the investigation, the police visited the place of occurrence. Inquest was held on the dead body of deceased Suraj Banu and the same was also sent for post mortem examination to the Tezpur Civil Hospital. In the course of the investigation statements of a large number of persons were recorded under Section 161 Code of Criminal Procedure. At the conclusion of the investigation, chargesheet under Section 302 IPC was submitted against the accused-Appellant. 4. As the offence alleged was exclusively triable by the Court of Sessions, the same was committed to the learned Sessions Judge, Sonitpur at Tezpur for trial. The learned Sessions Judge endorsed the case for disposal by the learned Ad-hoc Addl. Sessions Judge (FTC), Sonitpur, Tezpur. The learned Trial Court framed charge against the accused-Appellant under Section 302 IPC to which the accused-Appellant pleaded not guilty and claimed to be tried. In the course of trial, eleven witnesses were examined by the prosecution and none on behalf of the defence. Sessions Judge (FTC), Sonitpur, Tezpur. The learned Trial Court framed charge against the accused-Appellant under Section 302 IPC to which the accused-Appellant pleaded not guilty and claimed to be tried. In the course of trial, eleven witnesses were examined by the prosecution and none on behalf of the defence. The statement of the accused-Appellant was recorded under Section 313 Code of Criminal Procedure. At the conclusion of trial, the accused-Appellant has been convicted and sentenced as aforesaid giving rise to this appeal. 5. At the outset, the core of the evidence tendered by the prosecution witnesses may be noticed: P.W. 1 Dr. Shiba Prasad Bordoloi conducted the post mortem examination on the dead body of the deceased. He has proved the post mortem report as Exhibit-1 in the case, In the course of the post mortem conducted by P.W. 1, the following injuries were found on the dead body of the deceased: Injuries: 1. One 3 "long 1" wide deep transverse cut by sharp weapon over the middle of the neck, at the level of thyroid. The cut involves deeply into neck namely thyroid, trachea, larynx and severed the great vessels of neck. Profuse blood clots seen around the wound. All other organs are found healthy. In the injuries are antemortem in nature and sufficient to cause death due to profuse haemorrhage from the severed great vessels of the neck. Opinion: In my opinion cause of death is due to haemorrhage and shock as a result of injury sustained by the deceased. Ext. 1 is my post-mortem report. Ext. 1(1) is my signature and Ext. 1(2) is the signature of the Joint Director. XXXXX This is a case of single injury. 6. P.W.2, Abdul Mannas is the first informant. According to this witness, at about 9 a.m. of the date of occurrence the nephew of the accused-Appellant informed him that Suraj Banu had died. According to P.W. 2, he along with a few villagers including Mozzamil Haque and Altafuddin found Suraj Banu lying dead with her throat cut. P.W.2 has deposed that the marital life of the deceased and the accused-Appellant had not been cordial and there were frequent fights and assaults between them. He had specifically deposed that about a week before the incident the accused-Appellant had placed a 'dao' on the neck of the deceased and that P.W.2 had settled the differences at that point of time. 7. He had specifically deposed that about a week before the incident the accused-Appellant had placed a 'dao' on the neck of the deceased and that P.W.2 had settled the differences at that point of time. 7. P.W.3, Mia Hussain had deposed that at about 7/8 a.m. of the date of occurrence a neighbouring Nepali woman had informed him that a woman was lying near his house with her throat cut. Going to the place of occurrence P.W. 3 found Suraj Banu's dead body lying in the field with her neck cut. This witness has also deposed that after marriage the deceased and the accused-Appellant had been frequently quarrelling. P.W.3 has specifically deposed that on the date following the incident when the accused-Appellant was interrogated by the police, he had informed the police that he had cut Suraj Banu with a 'dao'. P.W.3 has further deposed that the police in the course of investigation had seized the 'dao' which was produced by the accused-Appellant. This witness had also signed the seizure list and had identified the seized 'dao' which was exhibited as Material Exhibit-1 in the case. In cross-examination, this witness admitted that he had not informed the police about the accused-Appellant injuring the deceased with a 'dao' and further that he had also not informed the police that the accused-Appellant had produced the 'dao' which was seized by the police. Furthermore, in cross-examination, P.W. 3 had denied of making any statement to the police that the accused-Appellant had told the police in his presence that he had killed his wife. He further deposed that it cannot be said with any degree of certainty that Material Exhibit-1 is the 'dao' which was seized by the police. 8. P.W.4, Nurul Islam has deposed that at about 5 a.m. on the date of occurrence while he was on his way home after offering 'Namaaz' he heard people saying that the accused-Appellant had killed his wife. P.W. 4, therefore, went to the house of the accused-Appellant and saw the dead body of his wife lying in the field. According to this witness, he had sent information through another person to the police station and around 10/11 a.m. police personnel from Dhekiajuli Police Station came and took the accused-Appellant away. P.W. 4, therefore, went to the house of the accused-Appellant and saw the dead body of his wife lying in the field. According to this witness, he had sent information through another person to the police station and around 10/11 a.m. police personnel from Dhekiajuli Police Station came and took the accused-Appellant away. P.W.4 has further deposed that around 12 noon of the next day, the police came and called one Ali, Mian Hussain and himself and took them to the house of Mian Hussain. Thereafter, police asked them to enquire from the accused-Appellant as to who had committed the crime. P.W.4 has deposed that when he had asked the accused-Appellant about the incident, the accused-Appellant admitted that he had committed the offence with a 'dao'. P.W.4 has further deposed that on being asked where the 'dao' was kept, the accused-Appellant informed him that it was being kept in the granary of his house. According to P.W.4, thereafter, police took the accused and the three other persons including himself to the house of the accused. On reaching the house of the accused-Appellant, the accused-Appellant called his son and asked him to produce the 'dao' from the paddy basket. Thereafter, according to P.W.4, the son of the accused, one Kalam, took the 'dao' and gave it to the accused-Appellant who handed it over to the police. In cross-examination, P.W.4, however, had denied that he had informed the police that the accused-Appellant had admitted to him (the witness) that he had committed the offence and that the accused had asked his son to produce the 'dao' from the paddy basket which was so produced and handed over to the police. 9. P.W.5, Ali Akbar in his deposition has stated that on a Friday after offering 'Namaaz' while he was still in the Masjid, police called him and took him to the house of the accused-Appellant. This witness has further deposed that when the police had asked the accused in the presence of Islamuddin, Mian Hussain and other witnesses, the accused-Appellant had admitted that he had committed the murder and had produced a 'dao' from the house. This witness has also deposed that Material Exhibit-1 is the 'dao' which the accused had produced. This witness has further deposed that when the police had asked the accused in the presence of Islamuddin, Mian Hussain and other witnesses, the accused-Appellant had admitted that he had committed the murder and had produced a 'dao' from the house. This witness has also deposed that Material Exhibit-1 is the 'dao' which the accused had produced. P.W.5 in his cross-examination has, however, stated that when he was taken to the house of the accused-Appellant from the Masjid by the police, the accused-Appellant was standing in the courtyard of his house in handcuff. P.W. 5 has further deposed in his cross-examination that it is the accused and the police party who had gone inside the house and the police party had come out with a 'dao' which was later on seized. 10. P.W.6, Jamaluddin is the only eye witness to the occurrence. This witness had deposed that the incident took place at about 5 a.m. and at that time he was putting fishing nets in the field in front of the house of the accused-Appellant. P.W. 6 has further deposed that on his arrival at the spot he found the deceased sitting near the fishing nets and as he got into the water to haul fish, he saw the accused coming with a 'dao'. Thereafter, he saw the accused hacking the deceased in the neck with the 'dao'. According to P.W.6, he ran away from the place and later when asked by others he had informed them that the accused-Appellant had cut his wife with a 'dao'. This witness has further deposed that three months after the occurrence the police took him to the Court where he made a statement (Exhibit-4) which was recorded by the learned Magistrate under Section 164 Code of Criminal Procedure. hi cross-examination, this witness admitted that he made a statement to the police with regard to the incident after three months of occurrence of the same. 11. P.W.7 Md. Safiqul Islam is a witness to the inquest held on the dead body. The evidence of P.W.8 will not be very material for the purpose of the case. P.W.9, Md. Idrish Ali has deposed that the occurrence took place at about 7 in the morning. At that time he was at home. According to P.W. 9, the accused-Appellant came and told him that somebody had killed his wife and left the dead body in the field. P.W.9, Md. Idrish Ali has deposed that the occurrence took place at about 7 in the morning. At that time he was at home. According to P.W. 9, the accused-Appellant came and told him that somebody had killed his wife and left the dead body in the field. This witness had further deposed that the accused-Appellant asked him to accompany him to the police station and he along with the accused-Appellant went to the police station, whereafter, the police came to the place of occurrence. This witness had also signed the inquest report (Exhibit-3). 12. P.W.10, Msstt. Maleka Khatoon is the first wife of the accused-Appellant. This witness has deposed that she and the deceased used to maintain separate houses. According to this witness, sometime in the night she heard the sound of wailing coming from the house of the deceased and going there she found the son of the deceased. Thereafter, according to P.W.10, she went in search of the deceased and not being able to find her she woke up her husband i.e. the accused-Appellant from sleep and together they had searched for the deceased. This witness has deposed that in the course of the said search they found the body of the deceased lying in the field with injuries on the neck and back. In cross-examination, this witness has stated that the deceased, even after marriage with her husband, was maintaining a relationship with Jamaluddin (P.W.6). P.W.10 in her cross-examination had further stated that in the night of the occurrence her husband i.e. the accused-Appellant was with her in the house and that she had woken up her husband in the later part of the night to search for the deceased. 13. P.W.11, Sri Muhikanta Gogoi is the Investigating Officer of the case. In his deposition, P.W.11 had stated that after receiving the Ejahar (Exhibit-5) he went to the place of occurrence and in the course of the investigation he had detained the accused-Appellant on suspicion. According to P.W. 11, on the next day i.e. 16.11.2001 the accused confessed before him that he had committed the crime and had also agreed to produce the 'dao' with which he had committed the offence. According to P.W. 11, on the next day i.e. 16.11.2001 the accused confessed before him that he had committed the crime and had also agreed to produce the 'dao' with which he had committed the offence. According to this witness, he, thereafter, took the accused-Appellant to his house and in the presence of other villagers the accused-Appellant had produced a 20 inches long curved dao from inside the paddy basket kept inside his house. Certain contradictions in the evidence of P.W.2, P.W.3, P.W.4, P.W.5 and P.W.6 were also sought to be proved by the prosecution by examining the Investigating Officer. 14. A reading of the evidence of the prosecution witnesses, the core of which have been extracted above, amply demonstrates that according to the prosecution, P.W. 6 Jamaluddin is the sole eye witness to the occurrence. The evidence of P.W. 11, the Investigating Officer of the case clearly goes to show that though the occurrence took place on 15.11.2001 P.W.6 was examined by the Investigating Officer on 1.2.2002. In fact, P.W.6 in his deposition had admitted that he made a statement to the police after about three months from the date of the occurrence. The statement of P.W.6 recorded under Section 164 Code of Criminal Procedure. (Exhibit-4) was so recorded on 11.2.2002. If P.W.6 had witnessed the occurrence, as claimed by him, and as stated by him, he had informed the villagers of the said fact, there is no explanation coming as to why P.W.6 narrated the incident to the police for the first time on 1.2.2002. The evidence on record amply demonstrates that the police had come to investigate the offence on the date of the occurrence itself as well as on the next date. If that be so, some convincing explanation must be offered as to why P.W.6 had not informed the police about the incident of which he claims to be an eye witness. While there is no denying the fact that the evidence of a sole eye witness, if otherwise consistent and acceptable, can form the basis of conviction without any corroboration, if there is even an iota of doubt in the matter of acceptability of such evidence, the Court must be slow to rely on the testimony of the sole eye witness and look for corroboration of such evidence so as to be sure of the involvement of the accused in the alleged crime. 15. 15. In the present case, such corroborative evidence could have been in the form of the statement of the accused leading to recovery of the alleged weapon of assault i.e. 'dao'. In this regard, the key witnesses of the prosecution are P.W. 3, P.W. 4 and P.W. 5. While P.W. 3 merely testified with regard to the seizure of the 'dao' by the police as produced by the accused-Appellant, P.W.4 has been more categorical in his assertions made before the Court, as already noticed. According to this witness i.e. P.W.4, the accused-Appellant stated to him that he had kept the alleged weapon of assault in his granary and on being taken to his house, the accused-Appellant had asked his son to produce the 'dao' from the paddy basket which was so produced. Though the evidence of P.W.4 has been elaborate, the same does not find support from the evidence of P.W.5 who in his deposition had stated that the accused had produced the 'dao' from his house. The evidence of P.W.4 and P.W.5, as noticed above, is also inconsistent with the evidence of P.W.11, the Investigating Officer who does not support P.W.4 and P.W.5 in so far as the evidence of the said witnesses that the police had called three persons from the Masjid and had taken them to the house of the accused-Appellant and it is in the presence of the aforesaid three persons that the accused had asked his son to produce the 'dao'. That apart, P.W.11 has clearly deposed that it is the accused-Appellant who had produced the 'dao' from the paddy basket though, according to P.W.4, it is the son of the accused-Appellant who on being asked had produced the 'dao' from the paddy basket. The alleged statement made by the accused had not been recorded by P.W.11 and, therefore, not proved in Court. The discrepancies in the evidence of the prosecution witnesses noticed above viewed as a whole indicates that the prosecution evidence with regard to the statement made by the accused leading to recovery of the alleged weapon of assault is not a consistent version. In such circumstances, we do not feel safe and re-assured to rely on the said evidence either as lending credence to the version of the sole eye witness, P.W. 6 or as sufficient evidence by itself to implicate the accused-Appellant. 16. In such circumstances, we do not feel safe and re-assured to rely on the said evidence either as lending credence to the version of the sole eye witness, P.W. 6 or as sufficient evidence by itself to implicate the accused-Appellant. 16. Furthermore, P.W.9 in his evidence had clearly deposed that the accused-Appellant came and informed him of the incident and had asked the witness to accompany him to the police station. The said witness had further deposed that he had gone to the police station to inform the police about the incident along with the accused-Appellant. The prosecution had not declared the said witness i.e. P.W.9 hostile and had also not cross-examined the said witness on the aforesaid point. That apart, the evidence of P.W.10 i.e. the first wife of the accused-Appellant, clearly indicates that her husband was sleeping in the house in the night of the incident and towards day-break, on being woken up, he had accompanied P.W.10 in search of the deceased. There is nothing in the cross-examination of P.W.10 to discredit the said. 17. From the above discussions, we are satisfied that the present is a case where the sole eye witness should not be relied upon to reach any conclusion adverse to the accused-Appellant. The probative value of the evidence of P.W. 3, P.W. 4 and P.W. 5 with regard to recovery of the alleged weapon of assault is also in serious doubt. That apart, the evidence of P.W.9 and P.W.10 clearly discloses that the prosecution itself has come up with two different versions, one, in fact, favouring the accused. If that be so, the accused-Appellant cannot be held guilty of the offence under Section302 IPC. 18. For the aforesaid reasons, we are of the view that this appeal deserves to be allowed. We, therefore, allow the appeal and set aside the judgment and order dated 16.9.2002 passed by the learned Ad-hoc Addl. Sessions Judge, FTC, Sonitpur, Tezpur in Sessions Case No. 147(S)/02. The accused-Appellant who is in custody be released forthwith.