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2009 DIGILAW 522 (GAU)

Abdul Rahman v. State of Assam

2009-08-04

HRISHIKESH ROY, J.CHELAMESWAR

body2009
JUDGMENT J. Chelameswar, C.J. 1. Heard Ms. D. Buragohain, learned Counsel for the appellant and Mr. Z. Kamar, learned Public Prosecutor appearing for the State. 2. Aggrieved by judgment dated 12.4.2007 of the learned Sessions Judge, Barpeta in Sessions Case No. 24/2006 of the first accused therein preferred the present appeal. By the said judgment the learned Sessions Judge recorded a verdict of guilt against the appellant herein under Section 304Bread with Section 34, IPC and directed the appellant to suffer imprisonment for life. 3. The appellant alongwith two other accused, the mother and brother of the appellant, were tried under a charge under Section 304B read with Section 34, IPC. The deceased was the wife of the appellant. 4. The present case is a classic example of the sorry state of affairs in which investigation and trial of offences including serious offences, if proved would entail either capital punishment or punishment for life, are conducted. 5. The prosecution case is that the deceased and the appellant herein were married a few months prior to the death. It is unfortunate that the prosecution did not even bother to lead evidence as to the exact date of the marriage. The deceased Rasheda Khatun allegedly died on the 10th September, 2000. We say 'allegedly' because there is no evidence on record as to the exact time of death. Neither the post-mortem report gives any indication as to the time of death nor the doctor, who conducted the postmortem and who was examined as PW 9, in his evidence made any mention about he approximate time of the death. On the other hand there are two reports received by the police, which are marked as Ext-3 and Ext-5, submitted by two brothers of the deceased. From the contents of those documents it appears that around 8 p.m. on 10th September, 2000 the makers of the above-mentioned two reports got to know that their sister was in a serious condition. While in Ext-3 it is stated,- Last night, at about 8 p.m., the accused persons killed my sister. Having heard a commotion in their house when we advanced in that direction we found her lying dead in their courtyard. On the other hand in Ext-5 it is stated as follows: At about 7 p.m. on 10.9.2000, a message was sent to us that my sister Rasheda Khatun had taken poison. Having heard a commotion in their house when we advanced in that direction we found her lying dead in their courtyard. On the other hand in Ext-5 it is stated as follows: At about 7 p.m. on 10.9.2000, a message was sent to us that my sister Rasheda Khatun had taken poison. On receipt of the information I alongwith my youngest sister Fuljan Khatun came to my brother-in-law Rahman Ali's house. Having come there when I found the condition of my sister serious, I took her immediately to Barpeta Civil Hospital in an Auto Rickshaw and got her examined by a doctor there. While undergoing treatment in the hospital my sister died at about 10 O'clock. Therefore, it can be noticed that while one brother says that he found the deceased die at about 8 p.m. and when she was shifted to the Barpeta Civil Hospital she was declared dead, the other brother in Ext-5 states that while undergoing treatment in the hospital his sister died at about 10 clock. 6. Unfortunately the doctor who is said to have examined the deceased at the Barpeta Civil Hospital is not examined by the prosecution as a witness to establish as to the time at which she was taken to the hospital and whether she was alive or dead at that point of time. 7. In the background of the above-mentioned factual situation two of the brothers of the deceased independently approached the police and reported in writing the incident to the police. It may be mentioned here that while Ext-3 is addressed to the Officer- in-charge, Barpeta Police Out Post, Ext-5 is addressed to the O/C, Barpeta Thana. While the maker of Ext-3 was examined by the prosecution as PW 1 the maker of Ext-5 was not examined by the prosecution. 8. Ext-3 is recorded to have been received on 11.9.2000 at 3.30 p.m. by the Inspector of Police/Officer-in-charge, Barpeta Police Station. It is recorded therein that the scene of occurrence is 10 Km north from the Police Station. It is further recorded that the FIR was dispatched from the Police Station on 12.9.2000 at 10 p.m. obviously to the Magistrate but the same was received by the Chief Judicial Magistrate, Barpeta only on 15.9.2000. Unfortunately the Magistrate did not record the time at which the copy of the FIR was received. It is further recorded that the FIR was dispatched from the Police Station on 12.9.2000 at 10 p.m. obviously to the Magistrate but the same was received by the Chief Judicial Magistrate, Barpeta only on 15.9.2000. Unfortunately the Magistrate did not record the time at which the copy of the FIR was received. We must point out straightaway here that under Section 157 of the Cr PC an Officer-in-charge of the Police Station receiving the information of commission of a cognizable offence is required to 'forthwith' send a report of the same to the Magistrate empowered to take cognizance of such offence upon a police report. Unfortunately this provision of law is not complied with nor the prosecution gave an explanation for such delayed receipt of the copy of the FIR by the Magistrate. On the other hand we are informed at the Bar by the learned Public Prosecutor, in response to a query by this Court, that both the Police Station as well as the Court of the Magistrate are located in the same town and the distance between the two would be not more than 1 Km. Apart from the lack of explanation on delayed receipt of the FIR by the Magistrate even on the admitted facts placed by the prosecution on record that the report was received at 3.30 p.m. on 11.9.2000 it took more than 19 hours for the Police Station to dispatch the FIR, a practice which is wholly illegal and which deserves condemnation. 9. Ext-5, as already mentioned, is another report made by another brother of the deceased, who was not examined. The same does not contain any endorsement as to what is the time and date on which it was received by the police nor a copy of the same was sent to the concerned Magistrate. On the other hand the Investigating Officer, who was examined as PW 8, states that Ext-5 is the ejahar of UD Case No. 64/2000 (Unnatural Death). In his evidence PW 8 does not give the date and time of receipt of the said ejahar. During his cross-examination PW 8 states that the same was given in the morning (without any reference to the date). However, PW 8 is the SI who conducted the inquest over the dead body under Ext-4. Ext-4 (inquest report) was prepared on 19.9.2000. During his cross-examination PW 8 states that the same was given in the morning (without any reference to the date). However, PW 8 is the SI who conducted the inquest over the dead body under Ext-4. Ext-4 (inquest report) was prepared on 19.9.2000. Therefore, we have to necessarily infer that the Investigating Officer in his cross-examination stated that the ejahar in UD Case No. 64/2000 was received in the morning, by necessary implication it was received in the morning on 11.9.2000. 10. Inspite of the fact that the Investigating Officer proceeded to conduct an investigation and prepare the inquest report on the basis of Ext-5, the officer did hot think it necessary to register a crime on the basis of Ext-5. On the other hand a crime came to be registered on the basis of Ext-3. Ext-3, on the basis of which a crime came to be registered is recorded to be received by the police at 3.30 p.m. on 11.9.2000, that is, after the inquest over the dead body was conducted on the basis of Ext-5. Therefore, the question arises whether Ext-3 is inadmissible under Section 162 of the Cr PC and we shall examine the same later. 11. The post-mortem on the dead body was conducted on 11.9.2000 at about 2.45 p.m. The post-mortem report is marked as Ext-6 and the doctor who conducted the post-mortem was examined by the prosecution as PW 9. In the post-mortem report the doctor stated: The cause of death could not be ascertained as the histochemical examination of the preserved viscera is not yet received. 12. Coming to the evidence before the Sessions Court once again the doctor was not able to give any opinion as to the cause of death. The relevant portion of his statement before the Sessions Court is as follows: In my opinion the cause of death could not be ascertained as because the histochemical examination report of the visceras were not received. 13. On the other hand the prosecution sought to rely on the evidence of Dy. Director of Forensic Science Laboratory (FSL). Kahilipara, who is examined as PW 4, to prove the Ext-1, which is a report of the Dy. Director, Toxicology Division, FSL signed on 3.5.2001. From Ext-1 it appears that the contents received by the FSL are described as follows: Description of articles.-1. Director of Forensic Science Laboratory (FSL). Kahilipara, who is examined as PW 4, to prove the Ext-1, which is a report of the Dy. Director, Toxicology Division, FSL signed on 3.5.2001. From Ext-1 it appears that the contents received by the FSL are described as follows: Description of articles.-1. 1 (One) glass for containing: (a) Stomach and its contents; (b) Rt Kidney; (c) Part of the Rt Lung and (d) Part of the Liver-marked here on Exht. Nos. Tox-91(A), Tox 91(b), Tox-91(c) and Tox-91(d) respectively. Result of examination.-(1) The exhibit Nos. Tox-91(b), Tox-91(c) and Tox-91(d) gave positive tests for Carbamate. The entire evidence of PW 4 reads as follows: On 12.1.2001 I was working as Deputy Director, FSL, Kahilipara, Guwahati. On that day, I received a parcel through Director, FSL for examination and report in connection with Barpeta P.S. Case No. 552/2000 under Section304(B)/34, IPC. The parcel contained four Exhibits viz (i) one glass jar containing stomach and its contents; (ii) Right Kidney, (iii) Part of the right lung and (iv) Part of liver which I marked as Ext Nos. Tox-91(a), Tox 91(b), Tox-91(c) and Tox-91(d) respectively. I examined the exhibits. The result of examination as follows: The exhibit Nos. Tox-91(a), Tox 91(b), Tox 91(c) and Tox- 91(d) gave positive tests for Carbamate (insecticide). Ext. 1 is my report. Ext-1(1) is my signature. It is typed as per my direction and the Director has forwarded this report DSP Head Quarter, Barpeta vide his forwarding report. Ext. 2 and Ext. 2(1) is signature of Director Mr. Robin Dutta which I know. 14. The only material on record to suggest that the examination conducted by the FSL was based on vague statement of PW 8 (I sent viscera to FSL for examination) no document under which the viscera was sent to FSL examination is marked by the prosecution. All that the PW 4, the Dy. Director of FSL, says is that the contents of the parts which were received by him pertain to PS Case No. 452/2000 of Barpeta. According to him the parcel was received by him from the Director of FSL. Neither the said Director was examined as witness nor the requisition received by the Director from the police accompanying the viscera nor the request from the police to examine the contents is brought on record by the prosecution. According to him the parcel was received by him from the Director of FSL. Neither the said Director was examined as witness nor the requisition received by the Director from the police accompanying the viscera nor the request from the police to examine the contents is brought on record by the prosecution. Every bad seems to presume that the contents examined by the FSL was the viscera of the deceased in the instant case. It is distressing to notice that PW 4 does not even make a statement in the examination-in-chief that the various items which were subjected to examination by him belong to a human being. Nor is it the opinion of the doctor (PW 9), who conducted the post-mortem, that the presence of carbamate, as indicated by PW 4, in the organs which were subjected to examination by PW 4, assuming to be the organs of the deceased, caused the death of the deceased. 15. In the background of the above disturbing process of investigation the prosecution examined 9 witnesses in all of which PW 1 is the maker of Ext-3 and he is declared hostile by the prosecution at the time of trial. PW 2, the mother of the deceased is also declared hostile by the prosecution. PW 5, who was a neighbour of the deceased, was also declared hostile by the prosecution. PW 3 is the brother of the accused appellant. He was not be eye-witness to the occurrence nor did he make any statement regarding any treatment of cruelty by the accused. We simply fail to understand as to what is the purpose in examining the PW 3 by the prosecution. 16. We have gone through the entire evidence recorded by the Sessions Judge. We are satisfied that there is absolutely no legally admissible material on record to connect the appellant herein to the crime of which he is charged and tried. 17. One more aspect of the matter-that none of the witnesses including the blood relations of the deceased (PW 1 and 2) did make any statement before the Sessions Court that either the appellant or anybody related to him subjected the deceased to cruelty within the meaning of Section 304B of the IPC. 17. One more aspect of the matter-that none of the witnesses including the blood relations of the deceased (PW 1 and 2) did make any statement before the Sessions Court that either the appellant or anybody related to him subjected the deceased to cruelty within the meaning of Section 304B of the IPC. On the other hand PW 2, the mother of the deceased, was declared hostile on the ground that she did not stand by her statement allegedly made by her to the police during the course of investigation to the effect that her daughter (deceased) was subjected to cruelty by the appellant and the relations. 18. We may place it on record that the alleged statement made by PW 2 during the course of investigation under Section 161, Cr PC is not even brought on record to mark the contradiction in the stand of the witness. We may state it here that it is our observation on more than one occasion in the past two months that as a matter of rule the Investigating Officers in the State of Assam in a good number of cases do not produce the materials, collected by them during the course of investigation, promptly before the concerned Magistrate along with the case diary. We may also place it on record that the inquest report, which is marked as Ext-4, was not sent to the Magistrate along with the case diary. On the other hand it is directly brought to the Sessions Court and marked as an evidence. It is all the more unfortunate to note that such materials when sought to be produced against the accused are not even objected by the defence counsel. 19. The only piece of information on record regarding the cruel treatment on the part of the appellant to the deceased as a statement made in Ext-3 by PW 1 to the effect that "the accused persons named above are torturing her in many ways and also beating her demanding dowry". In our opinion the above statement cannot be relied upon for two reasons. First of all, the date and time of the receipt of Ext-3 by the police is doubtful in view of the fact that it took four days for the said document (Ext-3) to reach the Magistrate, the details of which are discussed earlier in this judgment. In our opinion the above statement cannot be relied upon for two reasons. First of all, the date and time of the receipt of Ext-3 by the police is doubtful in view of the fact that it took four days for the said document (Ext-3) to reach the Magistrate, the details of which are discussed earlier in this judgment. Apart from that even on the basis of the admitted time and date on which it is received by the police, that is, 11.9.2000 at 3.30 p.m., as can be seen from Ext-3, the investigation of the case had already commenced. The inquest and post-mortem over the dead body were also concluded in which case the statement, in our opinion, is clearly hit by the provisions of Section 162, Cr PC. 20. In the circumstances we are of the opinion that the judgment under appeal is wholly unsustainable and the judgment is, therefore, set aside. The appeal is allowed. The appellant is directed to be set at liberty forthwith unless required in connection with any other crime. 21. As indicated in the commencement of this judgment this is not only the case where we have noticed even various disturbing features in the context of the investigation and prosecution of criminal cases in the State of Assam. No wonder, on the face of such faulty and illegal investigation in most of the cases the prosecution would not be able to legally establish the guilt of the accused, eventually leading to a comment from the public that there is a miscarriage of justice. Unless the State takes concrete steps to improve its police more particularly the crime investigation, the situation which is already noted above, is sure to deteriorate in the years to come. 22. We mark a copy of this judgment to the Chief Secretary to the Govt. of Assam, the Director General of Police, Assam and also to the learned Public Prosecutor for taking necessary steps.