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2009 DIGILAW 502 (GAU)

Abulkashem v. State of Assam

2009-07-29

P.K.MUSAHARY

body2009
P. K. Musahary, J. - None appears for the appellant when the matter was called upon. Heard Mr. D. Das. learned Additional Public Prosecutor. Assam. 2. This appeal has been filed against the judgment and order dated 12.11.2002, passed by the learned Sessions Judge Morigaon in Sessions Case No. 67/2000 corresponding (G.R. Case No. 533/99) convicting the accused appellant and sentencing him to undergo rigorous imprisonment for 7 (seven) years under Section 306 1PC and further convicted and sentenced to undergo rigorous imprisonment for a period of 7(seven) years under Section 201 IPC and directing that the aforesaid sentence would run concurrently against him. 3. The prosecution story is that the informant's younger sister Nunm Nehar, aged about 22 years was married to the accused Abul Kashem three years ago. In the night of 17.8.99, the accused Abul Kashem along with Jonab AH. Abdul Hasen and Abul Hussain jointly tortured his sister and forcibly compelled her to consume poison and thereby killed her. After killing her, they buried the dead body. Saiful Islam, elder brother of the deceased filed a written complaint before the Chief Judicial Magistrate, Morigaon which was registered as C.R. Case No. 171/99 and forwarded to the Officer-in-Charge, Moirabari Police Station for registering the case and investigation thereof and also to submit the report thereon. Accordingly Moirabari Police Station Case No. 61/99 was registered under Sections 302/201 IPC. The Investigating Officer visited the place of occurrence and requisitioned presence of an Executive Magistrate to attend the inquest of the dead body. In presence of Circle Officer, Lahorighat, the dead body of the victim was rescued on 28.8.99. The police seized a photocopy of a compromise deed allegedly executed between the parties and a small bottle containing some quantity of liquid substance. The Investigating Officer also prepared a separate inquest report and forwarded the dead body for post-mortem examination. During investigation, the Investigating Officer examined some witnesses and collected the post-mortem report. But the doctor could not ascertain the cause of death for which the viscera of the dead body was preserved for FSL examination. The aforesaid viscera was sent by the police for FSL examination. The FSL report gave positive test of organo chlorine pesticide. On the basis of the aforesaid materials the police, after completion of the investigation, submitted charge sheet under Sections 306/201 IPC against the accused-appellant. The aforesaid viscera was sent by the police for FSL examination. The FSL report gave positive test of organo chlorine pesticide. On the basis of the aforesaid materials the police, after completion of the investigation, submitted charge sheet under Sections 306/201 IPC against the accused-appellant. On committal, the learned Sessions Judge, Morigaon, framed charge under Sections 302/201 IPC. On being read over and explained, the accused-appellant pleaded not guilty and claimed to stand trial. 4. As many as 10 (ten) witnesses were examined by the prosecution. I have scanned the evidence of the prosecution witnesses, particularly PW 1, Shri Saiful Islam; PW 2 Shri Abdul Ali; PW 4 Md. Kurban All and PW 5 Smti. Amirjan Bibi, who are brother, uncle, father and mother respectively of the deceased. There is nothing to show from the evidence of these witnesses that the deceased and the accused-appellant had some misunderstanding between themselves hi their marriage life or they have been having some trouble due to some misunderstanding. According to the evidence of PW 1, brother of the deceased, his sister did not have any quarrel with the accused. 5. Going through the entire evidence of the aforesaid witnesses, it could not be found that there was any dowry demand from the accused-appellant or he tortured the deceased for dowry demand or for some other matter. 6. PW 6, Shri Suleman Ali is a co-villager of the accused-appellant and he is also brother-in-law of the deceased. From his evidence also there is nothing to gather that the deceased and the accused-appellant had any misunderstanding or quarrel before the alleged occurrence took place. In his cross examination he rather deposed that the relation between the deceased and the accused-appellant was normal. 7. The village headman Shri Haren Chandra Konwar was examined as PW 7. According to him he was informed about the incident by one Abul Kashem. He immediately came to the place of occurrence and advised Abul Kashem to inform the police. At the time of his visit, the village headman found the accused-appellant Shri Abul Kashem lying unconscious. Thereafter, he returned home. After that police arrived on the spot. On arrival of police, the village headman again came back to the place of occurrence and the police obtained his signature on the seizure list, Ext. 3. 8. The Investigating Officer, Shri Hareshwar Mili, was examined as PW 10. Thereafter, he returned home. After that police arrived on the spot. On arrival of police, the village headman again came back to the place of occurrence and the police obtained his signature on the seizure list, Ext. 3. 8. The Investigating Officer, Shri Hareshwar Mili, was examined as PW 10. He seized the aforesaid deed of compromise and the bottle containing some quantity of poison by Ext. 4 i.e. seizure list which was sent for FSL examination. He also preserved the viscera in addition to the inquest done earlier on 28.8.99 and also prepared a separate inquest report Ext. 5 and thereafter he was transferred. After his transfer, Shri G.K. Saikia took over charge. He collected the FSL report and also submitted the charge-sheet. According to PW 10, Ext. 6 is the FSL report, which was collected by his successor. The result of the examination reads as below:- "Exhibit Nos. TOX-450(a), TOX-450(b), TOX-450(c) and TOX-450(d) gave positive test for organo chlorine pesticide. The organo chlorine pesticide found in the exhibit Nos. TOX-450(a) (b) (c) was similar to that found in exhibit No.TOX-450(d)." 9. There is no eyewitness to the said incident. The case is to be solved on circumstantial evidence. In a case where there is direct evidence, the motive of committing the crime would not be material but while a case is wanting direct evidence or eyewitness, the Court has to examine the circumstantial evidence and to see whether there is any motive behind the killing. Here in this case, from the evidence on record, no motive could be located. The prosecution has not been able to show any motive behind the killing so as to implicate the accused-appellant. It is the established law that in a case of circumstantial evidence, motive is one of the circumstances, which assumes importance. In this respect I am to refer to Uday Kumar Vs. State of Kerala, reported in (1998) 7 SCC 478 . In that case, the accused was the uncle of the deceased and there was no eye witness. No enmity between the accused and the parents of the deceased was found. It was held in the said case that motive as a circumstances assumes importance but in absence thereof, other proved circumstances although complete, the chain would be of no consequence. 10. Further I am to refer to State of Punjab Vs. No enmity between the accused and the parents of the deceased was found. It was held in the said case that motive as a circumstances assumes importance but in absence thereof, other proved circumstances although complete, the chain would be of no consequence. 10. Further I am to refer to State of Punjab Vs. Gurmail Singh, reported in (1990) (Suppl) SCC 67. In that case, the accused was prosecuted for murdering his sister-in-law, her two minor daughters and three minor daughters of his own. Evidence of eyewitnesses were found to be unreliable. Besides, motive for such dastardly murder could not be established. In these circumstances, the Apex Court justified the acquittal of the accused person. In the case, the Apex Court also observed that it is not comprehended, why he murdered his own three daughters without any considerable motive or reason and that too by inflicting as many as 15 incised injuries on one of his daughters. In a subsequent case of Tanviben Pankajkumar Divetia Vs. State of Gujarat, (1997) 7 SCC 156 , the Apex Court held that if evidence of murder are clinching, motive assumes more importance than in the case where direct evidence are available. 11. It is now to consider whether the Court can draw any presumption against the accused-appellant under Section 113 A of the Indian Evidence Act 1872. Before considering the above aspect, it is appropriate to quote the aforesaid Section:- "113 A. Presumption as to abetment of suicide by a married woman - When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by any such relative of her husband." 12. It is no doubt a fact that the incident of murder or suicide took place within the period of 7 years from the date of marriage of the deceased but as discussed earlier, from the evidence of the PWs, relatives of the deceased, it is found that the prosecution has failed to bring any material that the deceased was subjected to cruelty by her husband accused-appellant or his relatives. In absence of such material or proof of a case of cruelty, I am constraint to say that the presumption as provided under Section 113 A of the Evidence Act could be drawn for conviction of the accused-appellant. 13. Further, it is to note that the conduct of the accused-appellant is not found to be such that after commission of alleged offence he tried to evade the due process of law. According to the headman of the village, PW 7, he was found lying unconscious on the day his wife consumed poison. It is also in the evidence that the accused-appellant himself took his wife to hospital by bicycle for treatment but she expired on way to hospital. Regarding seizure of photocopy of the compromise deed, the prosecution failed to produce the same before the learned trial Court. The contents of the said compromise deed are not made known to the Court. 14. Having gone through the entire facts and circumstances of the case, the evidence on record and the materials placed at the time of hearing, I could not convince myself that the prosecution has been able to prove its case, beyond any reasonable doubt, not to speak of beyond all shades of reasonable doubt. 15. Accordingly, the accused-appellant is entitled to get the benefit of doubt and thereby set at liberty if his detention is not required in connection with any other case. The impugned judgment and order dated 12.11.02 passed in Sessions Case No. 67/2000 by the learned Sessions Judge, Morigaon, convicting and sentencing the accused-appellant is thus set aside. The accused-appellant is on bail during pendency of this appeal and accordingly, it is directed that the bail bond shall stand discharged. 16. Appeal stands allowed. 17. Send down the LCR forthwith.