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2009 DIGILAW 419 (GAU)

Sansab Ali Mondal v. State of Assam

2009-06-16

BROJENDRA PRASAD KATAKEY, RANJAN GOGOI

body2009
JUDGMENT B.P. Katakey, J. 1. This appeal by the convicts is directed against the judgment of conviction dated 05.06.2008 passed by the learned Sessions Judge, Kokrajhar, in Sessions Case No. 143/2005 convicting the Appellants under Section 302/34 IPC and sentencing them to undergo imprisonment for life and to pay a fine of Rs. 5,000/- each, in default to suffer rigorous imprisonment for 6 (six) months. 2. A criminal investigation was set in motion on lodging of the First Information Report (FIR) by Md. Atowar Ali Paramanik (P.W.1) with the Officer-in-Charge of Bhawraguri Police Outpost under Gosaigaon Police Station on 14.04.2005 at about 4.30 P.M. alleging that the Appellants on 13.04.2005 entered into the house of his younger sister, whom the Appellant No. 1 married 12/13 years ago and strangled her with a rope. The informant in the said FIR has also stated that after the second marriage of the Appellant No. 1 with the Appellant No. 2 about 3 years ago, both of them started quarrelling with his sister, the first wife of the Appellant No. 1. On the basis of the said FIR, G.D. Entry No. 319 dated 14.04.2005 was initially made in the Outpost and thereafter Gosaigaon P.S. Case No. 57/ 2005 under Section 302/34 IPC had been registered. The investigating agency during the investigation prepared the inquest report, made the seizures, prepared the sketch map and send the dead body for post mortem examination. The statements of the witnesses were also recorded under Section 161 Cr.P.C. by the Investigating Officer. On completion of investigation the Appellants were charge-sheeted under Section 302/34 IPC. The case being exclusively triable by the Court of Sessions, the learned Magistrate vide order dated 12.12.2005 committed the case to the Court of Sessions. The learned Sessions Judge, Kokrajhar vide order dated 27.02.2006 framed charge under Section 302/34 IPC against both the Appellants, which was read over and explained to them to which they pleaded not guilty and claimed to be tried. 3. The prosecution in order to bring home the charge against the Appellants examined 10 (ten) witnesses, namely, Md. Atowar Ali Paramanik (P.W.1), who lodged the FIR; Md. Jabbar Ali Paramanik (P.W.2), Md. Gulzar Ali Paramanik (P.W.3), Musstt. Ahila Bibi (P.W.4); Abdul Rahman Mandol (P.W.5); Farhad Ali Paramanik (P.W.6); Dr. Anil Kr. Brahma (P.W.7); Sarbhan Bibi (P.W.8); Md. Abbas Ali Sk. (P.W.9); and Shri Hriday Kalita (P.W.10), the Investigating Officer. Atowar Ali Paramanik (P.W.1), who lodged the FIR; Md. Jabbar Ali Paramanik (P.W.2), Md. Gulzar Ali Paramanik (P.W.3), Musstt. Ahila Bibi (P.W.4); Abdul Rahman Mandol (P.W.5); Farhad Ali Paramanik (P.W.6); Dr. Anil Kr. Brahma (P.W.7); Sarbhan Bibi (P.W.8); Md. Abbas Ali Sk. (P.W.9); and Shri Hriday Kalita (P.W.10), the Investigating Officer. The prosecution also exhibited the FIR as Exhibit-1, the post mortem examination report as Exhibit-2, the seizure list by which two pieces of plastic ropes were seized as Exhibit-3, the inquest report as Exhibit-4, the charge-sheet dated 31.08.2005 as Exhibit-5 and the G.D. Entry No. 319 dated 14.04.2005 as Exhibit-6. After the examinations of the prosecution witnesses, the Appellants were examined under Section 313 Cr.P.C. No defence witness, however, was examined by the Appellants. 4. The learned Sessions Judge upon hearing the learned Counsel for the parties and on appreciation of the evidences on record, found the Appellants guilty and convicted them under Section 302/34IPC. The learned Sessions Judge, thereafter, upon hearing the Appellants on the question of sentence, awarded the sentence of imprisonment for life and to pay a fine of Rs. 5,000/- each and in default to suffer rigorous imprisonment for 6(six) months. 5. We have heard Mr. K. Sarma, the learned Counsel for the Appellants and Mr. K.A. Mazumdar, the learned P.P., Assam. 6. Mr. Sarma, the learned Counsel for the Appellants referring to the deposition of the prosecution witnesses examined has submitted that admittedly there is no eyewitness to the occurrence and though the prosecution has relied upon the circumstantial evidence to establish the charges levelled against the Appellants, it could not prove the circumstances projected as incriminating against the Appellants so as to maintain the conviction under Section 302/34 IPC. According to Mr. Sarma it is evident from the deposition of the prosecution witnesses, more particularly the deposition of P.Ws. 8 and 9 that there was absolutely no bad relationship between the Appellants and the deceased and therefore, the prosecution has failed to prove the circumstance, namely, having bad relation between them. That apart, according to Mr. According to Mr. Sarma it is evident from the deposition of the prosecution witnesses, more particularly the deposition of P.Ws. 8 and 9 that there was absolutely no bad relationship between the Appellants and the deceased and therefore, the prosecution has failed to prove the circumstance, namely, having bad relation between them. That apart, according to Mr. Sarma, it appears from the evidence of the Investigating Officer (P.W. 10) that there were two other independent witnesses whose statements under Section 161Cr.P.C. were recorded and who had stated that the Appellant No. 1 was not in the house of the deceased on the fateful night and those independent witnesses who were the charge-sheeted witnesses had been withheld by the prosecution from the court and such withholding of independent witnesses, in view of the fact that most of the witnesses examined by the prosecution are related and interested witnesses, creates doubt about the prosecution story. Referring to the deposition of the P.Ws. 1 to 4 and P.W. 6, who are close relations of the deceased, it has further been submitted that there are serious omissions in their testimony, as they did not disclose before the police while recording the statement under Section 161 Cr.P.C., what they have stated before the Court and hence it would be very unsafe to record conviction on the basis of their evidence, without there being any corroboration by the independent witness. Mr. Sarma further submits that the deposition of P.W. 5 also cannot be relied upon for the purpose of recording the conviction against the Appellants, he having not disclosed before the Investigating Officer while recording his statement under Section 161Cr.P.C., what he has stated before the Court. According to the learned Counsel, all the witnesses had tried to improve their version before the Court. Mr. Sarma further submits that the prosecution even could not prove that few days before the date of occurrence, the deceased went to their sister's house, namely, Pinjara of Kortimari village and there was a village meeting presided over by the village headman, where the Appellant No. 1 stated to have admitted torture of the deceased, which according to the prosecution are also the incriminating circumstances against the Appellants, as the prosecution has failed to examine the deceased's sister Pinjara and also the village headman. Further submission of Mr. Further submission of Mr. Sarma is that the P.W. 8 and P.W. 9, in their deposition have categorically stated that the Appellant No. 1 was not in the house of the deceased from the previous day of the occurrence and came to the place of occurrence only in the morning of the date of occurrence, which belies the prosecution story that the Appellant No. 1 was present in that house on that day. Mr. Sarma, therefore, submits that there is absolutely no incriminating circumstances against the Appellants so as to convict them under Section 302/34 IPC and the learned Sessions Judge has recorded the finding the guilt on the basis of the circumstances which have not been proved. 7. Mr. Mazumdar, the learned P.P., Assam on the other hand supporting the conviction recorded by the learned Sessions Judge has submitted that it is evident from the evidence of the prosecution witnesses that the following incriminating circumstances have been proved against the Appellants, namely, (i) the Appellant No. 1 after marriage with Appellant No. 2 tortured the deceased, both physically and mentally; (ii) that there was a village meeting held where the Appellant No. 2 had assured that he would not again torture his first wife (deceased); (iii) that the deceased on the previous night went to her mother's house and reported about the torture and (iv) that when police came to the place of occurrence, the Appellant No. 1 ran away but was subsequently apprehended by the villagers. According to the learned Public Prosecutor, the chain of circumstances being complete and those having pointed only to the guilt of the Appellants, the learned Sessions Judge has rightly recorded the finding of guilt and awarded the sentence. 8. We have considered the submissions of the learned Counsel for the parties and also perused the evidences on record. 9. There is no eye witness to the occurrence. The prosecution case is based on the circumstantial evidence. 8. We have considered the submissions of the learned Counsel for the parties and also perused the evidences on record. 9. There is no eye witness to the occurrence. The prosecution case is based on the circumstantial evidence. The learned Sessions Judge recorded the finding of guilt against the Appellants and convicted them under Section 302/34 IPC by holding that the following incriminating circumstances are proved by the prosecution, which the Appellants could not explain: (i) both the Appellants after their marriage tortured the deceased (first wife), both physically and mentally; (ii) in the village meeting the Appellant No. 1 gave assurance that he would not again torture the deceased and would lead peaceful conjugal life with her and accordingly the deceased returned to the Appellant's house; (iii) on the previous night the deceased went to her mother's house and reported about the torture and went back and thereafter when her mother asked the Appellant No. 1 to send the deceased back, he threatened to kill her; (iv) when the police came to the place of occurrence, the Appellant No. 1 ran away but was subsequently apprehended with the help of the co-villagers; and (v) in the post mortem report two ligature marks of injuries around the neck of the deceased, one above the other, were found and the rope was recovered and seized from the place of occurrence. 10. The question which requires consideration is whether the prosecution could establish those circumstances and even if established, whether the chain of circumstances is complete and such circumstances point to the guilt of the Appellants alone, not of any one else, so as to convict them under Section 302/34 IPC. 11. P.W.1 Md. Atowar Ali Paramanik, P.W.2 Md. Jabbar Ali Paramanik, P.W.3 Md. Gulzar Ali Paramanik, P.W.6 Farhad Ali Paramanik are the brothers and P.W.4 Musstt. Ahila Bibi is the mother of the deceased. P.W.1, who lodged the FIR, in his deposition has stated about the marriage of the deceased with the Appellant No. 1, the second marriage of the Appellant No. 1 with the Appellant No. 2, torture, both physical and mental, of the deceased by the Appellant No. 1 thereafter and also about the deceased going to her sister's place namely, Pinjara, being unable to bear such torture. To substantiate the assertion about the torture, he has stated about holding of a village meeting in the house of the village headman where the Appellant No. 1 stated to have admitted such torture. This witness has further stated that when he was informed about the death of his sister by one Alam, he immediately went to the house of the Appellant No. 1 and found her sister lying on the ground having injuries on her back, but he did not find anybody there. During cross-examination this witness however stated that in the FIR he did not mention anything about the torture of his sister by the Appellants and also did not disclose about the village meeting where the Appellant No. 1 stated to have admitted the torture and promised not to assault her any further. This witness has denied the suggestion that he did not disclose before the police about his sister's coming to his house for informing about the assault. 12. Md. Jabbar Ali Paramanik (P.W.2), another brother of the deceased has also stated in the same line. During cross-examination this witness however has stated that when he came to the place of occurrence, he saw 4/5 persons present there. He has also stated that about 15/20 days before the date of occurrence the deceased went to her sister's place and stayed there. This witness has denied the suggestion that he did not disclose about the village meeting to the police and also did not state about the torture meted out to her sister by the Appellants. The version of another brother of the deceased, namely, Md. Gulzar Ali Paramanik's (P.W.3) is also the same as of P.Ws.1 and 2. During cross-examination this witness has also stated that he did not disclose before the police about the deceased going to the place of her sister Pinjara, being the deceased by the Appellant No. 1 back and also about the village meeting. During cross-examination this witness has further stated that on the previous day of the date of occurrence he along with one Rezak and Abrahim want to fetch wood and on the next morning Rezak called him and Abrahim called the Appellant No. 1 from the house of the second wife (Appellant No. 2) at about 4 A.M. He has deposed that he cannot say whether the deceased has committed suicide or she has been murdered. This witness during cross-examination further stated that when he reached the place of occurrence, a number of persons were present there, but he did not see the Appellant No. 1 there. According to this witness persons present there gave different versions of the story. 13. Musstt. Ahila Bibi (P.W.4), the mother of the deceased during her examination-in-chief has supported the version of the P.Ws. 1, 2 and 3 relating to the torture of her daughter by the Appellants after the second marriage with the Appellant No. 2, visiting the house of her sister by the deceased, holding of the village meeting in the house of the village headman, admission of torture by the Appellant No. 1 in such meeting, the assurance given by him not to torture the deceased any further and the deceased informing her about the torture showing the injury marks by the deceased on the previous night. This witness has further stated that on being informed about the death of her daughter she went to the place of occurrence and found many people present there, who told him that her daughter has been killed. According to this witness she saw the rope and the blade and the bleeding injuries on the neck of the deceased. She has also stated that she did not find the accused person in the house at that time. During cross-examination this witness has stated that many persons reside near the place of occurrence and the house of the Appellant No. 2, who stayed separately, is at a distance of 2 furlong from the place of occurrence. This witness has denied the suggestion that she did not tell before the police about the torture as well as the village meeting. 14. P.W.6 Farhad Ali Paramanik, another brother of the deceased, who has also supported the version of the P.Ws. 1, 2, 3 and 4, stated exactly what those witnesses have stated. This witness however has stated that he was informed by one Bodiur Jaman about the death of his sister and then he went to the place of occurrence along with other persons, did not find the Appellants there. During cross-examination this witness has stated that he had a dispute with the Appellant No. 1 relating to a loan, which he took from the Appellant No. 1. During cross-examination this witness has stated that he had a dispute with the Appellant No. 1 relating to a loan, which he took from the Appellant No. 1. This witness has also denied the suggestion that he did not tell the police about the village meeting and admission by the Appellant No. 1 about the torture. He also denied the suggestion that he did not tell the Investigating Officer about the deceased coming to their house several times and informing them about the torture. 15. It appears from the deposition of P.Ws.1, 2, 3, 4 and 6 that each of them during the examination-in-chief has given the identical version. It is highly improbable how the versions of all these witnesses would be exactly same while describing an occurrence which took place more than 11/2 year before the date of their deposition before the court, unless of course they are tutored. Going by the exact version of all these witnesses, who are related and therefore most interested, an impression is created in the mind of this Court about such tutoring. Be that as it may, there are material contradictions in the version of those witnesses in their cross-examination. According to P.W.1 and P.W.2 there was none at the place of occurrence. The P.Ws.3, 4 and 6, however, have not supported such version. The P.W.2 even during cross-examination has stated that there were 4/5 persons present in the place of occurrence when he went there. All these witnesses to prove the alleged continuous torture of the deceased by the Appellants introduced holding of a village meeting in the house of the village headman. These witnesses during cross-examination have denied the suggestion of the defence that they did not tell before the Investigating Officer relating to the assault and also the holding of the village meeting. P.W.10 Shri Hriday Kalita, the Investigating Officer during cross-examination has stated that those witnesses did not state while recording their statement under Section 161 Cr.P.C., about the assault and also the village meeting. These are serious omissions, which are material. Had the deceased been tortured continuously by the Appellants, as projected by these witnesses, and visited their house complaining about the same, as well as had the village meeting been held in the house of the village headman, they naturally would have disclose the same before the Investigating Officer, which they did not do. Had the deceased been tortured continuously by the Appellants, as projected by these witnesses, and visited their house complaining about the same, as well as had the village meeting been held in the house of the village headman, they naturally would have disclose the same before the Investigating Officer, which they did not do. These witnesses being the related witness and therefore being the most interested in the outcome of the proceeding, tried to improve their version in the court without disclosing the same when their statements under Section 161Cr.P.C. were recorded. 16. It is a settled position of law that the evidence of a witness cannot be discarded merely on the ground that he is a related witness, if otherwise his testimony is found to be credible. As because the witness is a related witness, it does not mean that his testimony is to be rejected in totality. The Court, however, is to be more careful in the matter of scrutiny of the evidence of the related and interested witness and if on scrutiny, such witness is found to be trustworthy, the same cannot be discarded merely on the ground that the witness is a related or interested witness. The Court normally, in such circumstances, would look for corroboration by any independent witness. 17. The testimony of those related witnesses, namely, P.Ws.1, 2, 3, 4 and 6 for the reasons recorded above, without any corroboration from any independent witnesses, cannot be relied upon for the purpose of recording the conviction. There are two independent witnesses examined by the prosecution in support of the charge, namely, P.W.5 Abdul Rahman Mandol and P.W.9 Md. Abbas Ali Sk. P.W.5 has not supported the version of P.Ws.1 and 2 relating to the absence of anyone in the place of occurrence. This witness has stated that though other persons were also present at the place of occurrence, however, the accused was not present. According to this witness the Appellant No. 1 was subsequently apprehended by the police and brought to the place of occurrence. This witness has also stated about a village meeting being held in the house of the village headman relating to some domestic quarrel between the Appellant No. 1 and the deceased, wherein according to this witness the matter was compromised. This witness has not stated that he was present in the meeting. This witness has also stated about a village meeting being held in the house of the village headman relating to some domestic quarrel between the Appellant No. 1 and the deceased, wherein according to this witness the matter was compromised. This witness has not stated that he was present in the meeting. He has also not stated about the assault of the deceased by any of the Appellants. His testimony does not prove any of the incriminating circumstances projected by the prosecution, against the Appellants. The other independent witness namely, P.W.9, Md. Abbas Ali Sk. who is a co-villager, in his deposition has stated that 2/3 years ago at about 4 A.M. on hearing the hue and cry, he went to the place of occurrence and saw the dead body of the deceased lying inside the house and then one Basiran Bibi showed him the rope by which the deceased had committed suicide by hanging. He is a witness to the seizure vide Exhibit-3, seizing the ropes. This independent witness, who is a co-villager, did not support the prosecution story and also the version of the P.Ws. 1, 2, 3, 4, 5 and 6. According to this witness he never heard about any quarrel between the Appellant No. 1 and the deceased and he found them living peacefully. 18. P.W.8 Sarbhan Bibi, who is related both to the Appellant No. 1 and the deceased, the Appellant No. 1 being the son and the deceased being her sister's daughter, has stated in her deposition that on hearing the cry of Nabi Mandal, son of the Appellant No. 1 that his mother died by hanging, she went to the place of occurrence where she found many neighbours present and saw the deceased in a hanging position from a wooden post plate. She has further stated that she immediately thereafter brought down the body by cutting the rope and thereafter police came. She has deposed that the Appellant No. 1 was not present in the said house and on the previous day he went out from that house by taking thela to carry the wood. It has further been stated that both the Appellant No. 1 and the deceased were living peacefully and the Appellant No. 1 never tortured or assaulted the deceased and in fact he loved the deceased more than the second wife i.e. Appellant No. 2. 19. Dr. Anil Kr. It has further been stated that both the Appellant No. 1 and the deceased were living peacefully and the Appellant No. 1 never tortured or assaulted the deceased and in fact he loved the deceased more than the second wife i.e. Appellant No. 2. 19. Dr. Anil Kr. Brahma (P.W.7), who conducted the post mortem examination on the dead body of Ayesha Bibi has proved the post mortem examination report (Exhibit 2) where from it appears that the following injuries were found on the body of the deceased: 1. External Appearance 1. Condition of : Fair complexioned female subject stout of about 26 yrs. Emaciated, of age wore violet Decomposed etc. coloured sari. There are two ligature marks around the neck one above the other. 2. Wounds- position, : The ligature marks are and character continuous. Froths visible in the corner of the mouth rigourmortis present. 3. Bruise position : Old scar spot visible size and nature on the back of the neck. Fracture of hyoid bone present. 4. Mark of ligature : As mentioned two on neck ligature marks around dissection, etc. the neck and are continuous. 1. According to doctor the cause of the death was due to asphyxia and aploplexy due to tightening of ropes around the neck and is ante mortem in nature. 20. It appears from the inquest report (Exhibit 4) as well as post mortem examination report (Exhibit-2) that neither any injury on the back of the deceased, as stated by the P.W.2 in his deposition, nor any bleeding injury on her body, as stated by P.W.4 in her deposition, has been found. It also appears from the evidence of P.Ws.2, 3, 4, 5, 6 and 8 that other neighbours were also present at the place of occurrence though the P.Ws.1, 2, 3 and 4 in their examination-in-chief projected the story that none was present at the place of occurrence. It appears that those witnesses have not stated the truth in the Court and they want to conceal something. Such discrepancies, discussed above, creates doubt in the mind of the court on the prosecution story of commission of offence of murder by the Appellants. It appears that those witnesses have not stated the truth in the Court and they want to conceal something. Such discrepancies, discussed above, creates doubt in the mind of the court on the prosecution story of commission of offence of murder by the Appellants. That apart the P.W.10, the Investigating Officer in his deposition has also stated that two persons namely, Nabir Mandal and Ibrahim Ali Mondal, whose statements under Section 161 Cr.P.C. were recorded, told him that the Appellant No. 1 was not present in the house from the previous night and went out for collecting wood with some other persons, stayed with the second wife in the other house, which is 2 furlong away from the place of occurrence and the Appellant No. 1 was brought to the place of occurrence in the next morning only. The prosecution, however, has withheld those witnesses from the court though they are independent witnesses. There is absolutely no reason as to why the son of the deceased who was present in the house and who opened the door when P.W. 8 went to the place of occurrence, has not been examined. Withholding of those two material witnesses from Court creates doubt about the prosecution story. 21. The evidence of P.W.8 Sarbhan Bibi, who is related both to the Appellant No. 1 and the deceased and the P.W.9 Md. Abbas Ali Sk., the independent witness and who is a co-villager, is very material for the purpose of this case. They have stated that there was no quarrel between the Appellant No. 1 and the deceased and they lived peacefully. They have also stated that they cannot say whether the deceased committed suicide. P.W.8 has in fact brought the deceased down, who was found hanging from a wooden post plate. P.W.8 has further stated that Appellant No. 1 was not present since the previous day as he went out to collect the wood by taking his thela on the previous night. P.W.8 has in fact brought the deceased down, who was found hanging from a wooden post plate. P.W.8 has further stated that Appellant No. 1 was not present since the previous day as he went out to collect the wood by taking his thela on the previous night. The evidence of these witnesses coupled with the non-examination of Nabi Mandal and Ibrahim Ali Mondal, whose statements under Section 161 Cr.P.C., have been recorded by the I.O. and who according to the I.O. himself spoke about the absence of Appellant No. 1 in the place of occurrence from the previous day itself and coming to the place of occurrence only at about 4 A.M. on the next day, creates doubt on the version of the related witness namely, P.Ws. 1, 2, 3, 4 and 6, whose testimony has not been corroborated by P.W. 8 and P.W. 9. It is apparent from the evidence of P.W. 8 that the deceased was not in the house from the previous night itself and came back to the place of occurrence only in the next morning when he was brought by the villagers. 22. Moreover, it appears from the version of the Investigating Officer that the Appellant No. 1 never fled away from the place of occurrence on seeing the police, as he has stated in his evidence that on his arrival he did not find the Appellant No. 1 in the place of occurrence and engaged the village people to apprehend him and accordingly he was found and produced before him. No other prosecution witness has also stated about the Appellants fleeing from the place of occurrence, when police came. Even assuming that the Appellant No. 1 fled from the place of occurrence on seeing the police, that by itself cannot be treated as incriminating circumstance against the Appellant No. 1 so as to convict him for the offence punishable under Section 302 IPC. There is absolutely no evidence against the Appellant No. 2. The prosecution also did not examine Pinjara to whose house according to the aforesaid related witnesses the deceased went having not been able to bear the torture. 23. To convict an accused on the basis of the circumstantial evidence, the incriminating circumstances have to be proved and must point to the guilt of the accused only and to no one else. The chain of circumstances has to be complete. 23. To convict an accused on the basis of the circumstantial evidence, the incriminating circumstances have to be proved and must point to the guilt of the accused only and to no one else. The chain of circumstances has to be complete. Mere suspicion, however strong may be, cannot take the place of proof and no person can be convicted on such strong suspicion. When the prosecution relies on the circumstantial evidence for the purpose of conviction of an accused, such circumstances must be proved. 24. In the instant case, as discussed above, none of the circumstances as alleged by the prosecution as incriminating circumstances, could be proved by the prosecution. The evidence of the related witnesses for the reasons recorded above cannot be relied upon more so, when such version has not been supported by other independent witnesses examined. Non-examination of the other independent material witness also creates doubt on the prosecution story. Hence, it would be very unsafe to convict the Appellants under Section 302/34 IPC on the basis of the evidence as adduced by the prosecution. 25. In view of the above, the judgment of conviction recorded by the learned Sessions Judge is set aside. The Appellants are set at liberty, if not wanted in any other case. 26. The appeal is accordingly allowed. 27. Send down the records.