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Gauhati High Court · body

2009 DIGILAW 29 (GAU)

Md. Jubbar Ali v. State of Assam

2009-01-16

H.BARUAH, I.A.ANSARI

body2009
JUDGMENT I.A. Ansari, J. 1. This in an appeal against the judgment and order, dated 13.11.2003, passed in Sessions Case No. 51(B)/2002, whereby the Appellant has been convicted under Section 302, IPC and sentenced to suffer imprisonment for life and pay a fine of Rs. 1,000/- and, in default of payment of fine, suffer simple imprisonment for a period of two months. 2. The case of the prosecution, in brief, is described thus; On 3.6.2002, at about 6.30 p.m., when Mustt Ashiya Bibi, sister of the informant, Illias Ali, was proceeding, by their village road, towards the local market, she was stabbed to death by her husband accused Jubbar Ali. The occurrence was witnessed by PW-2 and PW-3 and though they attempted to apprehend the accused, the accused threatened them, whereupon the two witnesses went running to the house of the informant and reported to him and other persons, who were present at the house of the informant, about the occurrence. The informant and others then, came to the place of the occurrence and found the dead body of Ashiya Bibi lying at the place of occurrence. Md. Illias Seikh, brother of the deceased, on the very day of the occurrence, lodged information with the police mentioning the name of the accused as Ashiya Bibi's assailant. A case was accordingly registered against the accused, police visited the place of occurrence, where the dead body was found lying, inquest was held over the dead body and, on completion of investigation, a charge sheet was Laid against the accused under Section 302 IPC. 3. During trial, on a charge being framed against the accused-Appellant under Section 302, IPC, the accused pleaded not guilty thereto. 4. In support of their case, prosecution examined six witnesses. The accused was, then, examined under Section 313 , Code of Criminal Procedure. In his examination, aforesaid, the accused denied that he had committed the offence alleged to have been committed by him, the case of the defence being that of total denial. No evidence was adduced by the defence for the offence alleged. Having found the accused guilty for the offence charged with, learned trial Court convicted the accused accordingly and passed sentence against him as mentioned hereinbefore. Aggrieved by his conviction and the sentence passed against him, the accused has preferred this appeal. 5. We have heard Mr. No evidence was adduced by the defence for the offence alleged. Having found the accused guilty for the offence charged with, learned trial Court convicted the accused accordingly and passed sentence against him as mentioned hereinbefore. Aggrieved by his conviction and the sentence passed against him, the accused has preferred this appeal. 5. We have heard Mr. M.U. Mahmud, learned Counsel appearing for the Appellant, and Mr. K.C. Mahanta, learned Addl. Public Prosecutor, Assam appearing on behalf of the Respondent. 6. As already indicated above, there are two persons, whom the prosecution examined as eye-witnesses to the alleged occurrence of stabbing of the said deceased, these two witnesses being PW-2 and PW-3. According to the evidence of PW-2, on 3.6.2002, at about 6.30 p.m. when he (PW-2), in the company of PW-3, was proceeding towards their bazar, the said deceased was proceeding about 30/40 ft. ahead of them and, at that time, accused Jabbar Ali arrived there and hacked her with a weapon, which resembled a knife. PW-2 has also deposed that the said deceased, being injured, fell down on the ground and, when he (PW-2) and PW-3 proceeded further, accused Jabbar threatened them by saying that he would kill them too and he also threatened them not to tell about the occurrence to any one. They (PW-2 and PW-3), then, went in a run to the house of Illias Ali (PW-1), who is brother of the deceased, and reported there that Jabbar Ali had assaulted Ashiya Bibi. PW-2 has also deposed that besides PW-1, others, present at the house of PW-1, were Rahman Ali, Sukur Ali and Haki Ali and all of them came to the place of occurrence and found Ashiya lying dead at the place of occurrence. The PW-2 has further deposed that some other co-villagers also arrived there, police was informed about the occurrence, but police came on the following day. 7. Broadly in tune with the evidence of PW-2 is the evidence of PW-3, who, too, has deposed that on the day of occurrence, at about 6.30 p.m., when he, accompanied by PW-2, was proceeding towards their bazar, the said deceased was proceeding in the same direction, she being 30/40 ft. ahead of them, and when she reached near Khalilur Rahman's house, accused Jabbar Ali appeared there from the eastern side of the road and gave her blows with a dagger. ahead of them, and when she reached near Khalilur Rahman's house, accused Jabbar Ali appeared there from the eastern side of the road and gave her blows with a dagger. PW-3 has also deposed that on being injured, when Ashiya Bibi fell down on the ground, they moved forward to apprehend the accused, but the accused threatened them showing a dao whereupon, they went, in a run, to Illias's house and informed him about the occurrence. 8. Though PW-2 and PW-3 were both cross-examined by the defence, we do not find that the defence could elicit anything from their cross-examination to show that what these two witnesses had deposed was not true. In fact, except offering some suggestions to the two witnesses, the defence did not cross-examine the witnesses in a manner, which can be said to have cast doubt on the veracity of the occurrence. Thus, the evidence of PW-2 and PW-3 remain unshaken and we see no reasons to disbelieve their evidence. 9. Close on the heels of the evidence of PW-2 and PW-3, PW-1 has deposed that on the day of the occurrence, at about 6.30 p.m., PW-2 came and; informed him about the fact that Ashiya had been assaulted by the accused, whereupon he went to the place of occurrence and found Ashiya lying dead with injuries on her body, whereupon he went to the police station and informed them about the occurrence. 10. Thus, according to the evidence of PW-2, PW-3 and PW-1, PW-2 and PW-3, having witnessed the occurrence, informed PW-1 about the occurrence and, on being so informed, PW-1 informed, in turn, the police. The information so given by the PW-1, admittedly, named the accused as the assailants hence, the evidence given by PW-2 and PW-3 clearly shows that it was the accused, who had stabbed in death Ashiya Bibi. Even the medical report on record, in the light of what the doctor (PW-4) has deposed, supports the evidence given by PW-2 and PW-3 inasmuch as PW-4 has deposed to have found, on conducting post mortem examination on the dead body of Ashiya Bibi, as follows: (1) 4 numbers of incised stab injuries over right back of chest 1" × 1" × 4", 1" × 1" × 2", in the forth intercostals space, 1-1/2" × 1" × 3" and 1" × 1" × 4" in the right axillary 5" space. All the injuries penetrate the right lung and pleura. Large anti mortem blood clots are found in right pleural space. (2) 1 number of incised stab injury over the back of left chest 11/2" × 1" × 3", forth intercostals space, injury penetrates the left lung and large anti mortem blood clots seen in the left pleural space. (3) 1 incised wound over the left middle finger 1/2" × 1/2" × 1/3" interiorly at the middle. 11. PW-4 has also deposed that the injuries were ante mortem in nature, the cause of death was shock and haemorrhage as a result of the injuries sustained by the said deceased and that the said injuries could have been caused by a sharp cutting weapon. Thus, the medical evidence on records, as indicated above, corroborates the ocular evidence given by PWs-2 and 3, whose evidence is to the effect that the accused had stabbed Ashiya Bibi to death by means of weapon, which resembled, according to PW-2, a knife and, according to PW-3, the weapon was a dagger. 12. In the face of the evidence as discussed above, we find that the prosecution proved their case beyond reasonable doubt against the accused inasmuch as evidence on record, we have no doubt, proves that it was the accused-Appellant, who had put death his wife, Ashiya Bibi. 13. Though, at the time of the hearing of this appeal, it has been contended by Mr. Mahmud, learned Counsel appearing for the Appellant, that the prosecution could not establish any motive for the accused-Appellant to have killed his wife, it needs to be pointed out that when the eye-witnesses have been found to be trust-worthy, the question as to whether the accused had any motive or not pales into insignificance otherwise also, the evidence, on record, does indicate that the relation between the deceased and her husband was far from being cordial. In fact, according to the evidence of PW-1, before her marriage with the accused, Ashiya was married to one Samsul Haque and after they lived as husband and wife for 4/5 years, Samsul Haque gave her 'talak' and Ashiya, then, got married to Taleb Ali, who was, later on, killed by extremists. It is in the evidence of PW-1 that Ashiya received a sum of Rs. It is in the evidence of PW-1 that Ashiya received a sum of Rs. 1,00,000/-, as compensation, from the Government and the marriage between Ashiya and the present Appellant was solemnised after she had received the said compensation. It is also in the evidence of PW-1 that out of this said amount of Rs. 1,00,000/-, a sum of Rs. 50,000/- had been received by Taleb's mother and the remaining sum of Rs. 50,000/- came to the account of Ashiya, who gave a sum of Rs. 17,000/- to PW-1, and with this amount, PW-1 got a house constructed for Ashiya. PW-1 has deposed that the accused took Rs. 29,000/- from Ashiya and never returned the same to Ashiya. PW-1 has deposed that Ashiya, at the time of her death, used to work at the house of their co-villager and she had also filed a case seeking maintenance from the present accused the Court had issued notice to the deceased in connection with the said case. PW-1 has further deposed that on the day of the occurrence, Ashiya was returning home after registering her presence in the Court. 14. We have minutely scrutinised the cross-examination of PW-1 on the above aspects of his evidence, but we do not find that the defence could elicit anything from cross examination of PW-1 to show that what he had deposed was untrue or ought not to be believed. Situated thus, it is clear that in the facts and attending circumstances of the present case, it was not necessary for the prosecution to prove existence of motive, for, the evidence on record shows that the accused Appellant did have motive to put to death Ashiya because of the case, which she had instituted in the Court. 15. We do not therefore, find that in the present appeal, the Appellant has been able to make out any case warranting interference with the findings of guilt reached against him by the learned Trial Court nor do we find any reason to interfere with the sentence, which has been passed against him. 16. Because of that have been discussed and pointed above, this appeal fails and the same shall accordingly stand dismissed. The conviction of the accused-Appellant and the sentence passed against him are hereby upheld.