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2009 DIGILAW 92 (GAU)

Jiarat Khan v. State of Assam

2009-02-10

AFTAB H.SAIKIA, HRISHIKESH ROY

body2009
JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. D. Das learned Counsel assisted by Mr. A.K. Bhuyan and Mr. K. Das, learned Counsel appearing for the Appellant and Mr. Z. Kamar, learned P.P. Assam. 2. The conviction of the Appellant under Section 302, IPC and sentence to undergo rigorous imprisonment for life with a fine of Rs. 1000/- in default of which to undergo further rigorous imprisonment for 2(two) months so handed down by the learned Sessions Judge, Barpeta, in Sessions Case No. 37/04 by his judgment and order dated 7.4.2006 have been questioned in this appeal. 3. The prosecution case in brief is that one Abdul Mazidof Nangalkur (PW 5) under Barpeta Police Station lodged an ejahar with the Officer-in-Charge Barpeta Police Station on 23.3.1999 stating the fact that his daughter Musstt Majiran Nessa (herein after referred to as 'the deceased') got married with accused Jiarat Khan about one year ago but due to the atrocities on the daughter she came to her parents house after about 2 months of her marriage and took shelter at his house. On the previous day i.e. on 22.3.1999 at about 8 a.m. his daughter went to Uttar Barpeta by rickshaw to visit the near relatives. On the way the accused Jiarat Khan (husband of the deceased the Appellant) and Osman Ali restrained his daughter near Chaulkhowa bridge and forcibly took her to the house of Osman Ali and confined there. On information, the informant went to the house of Osman Ali to bring his daughter. Osman Ali was the nephew of the informant and elder brother in law (Bhini) of accused. On the assurance of Osman that his daughter would be sent back to his house, he returned to his house. On the date of the lodging of the FIR i.e. 23.3.1999 the informant sent his son Abdul Rouf at about 7 a.m. to the house of Osman Ali to know about his daughter and to bring her from the house of Osman Ali. But the accused persons i.e. Jirat Ali, (the Appellant) Osman Ali and Abdul Barek told Abdul Rouf that they would send back informant's daughter to her father's house but subsequently instead of sending his daughter to her father's house she was taken to house of Abdul Barek Master and killed her there. But the accused persons i.e. Jirat Ali, (the Appellant) Osman Ali and Abdul Barek told Abdul Rouf that they would send back informant's daughter to her father's house but subsequently instead of sending his daughter to her father's house she was taken to house of Abdul Barek Master and killed her there. At the time of lodging the ejahar the dead body of his daughter was in the house of Rahim Khan of Tetelirtal. 4. Barpeta Police registered the case being Barpeta RS. Case No. 219/99 under Sections 120(M) /302 / 342 / 34, IPC. During investigation the police collected other evidence, seized some articles. Collected Post Mortem Report but the post mortem report shows that viscera was preserved for chemical examination and accordingly Barpeta Police took the initiative to send the viscera of the dead body of Majiran Nessa for chemical examination at F.S.L. Kahilipara, Guwahati. In due course, the I/O received the report of examination of viscera from Forensic Science Laboratory. 5. In the mean time out of ejahar named three accused, only Jiarat Khan was arrested and produced before the Court. 6. The police on completion of the investigation submitted charge-sheet against the accused Appellant under Section 302, IPC. During the trial the prosecution examined as many as 9 witnesses including PW 4 Dr. P. Uzir who held post-mortem of the body of the deceased when defence examined none. 7. Admittedly there was no eye-witness to prove the incident of killing of his wife by the Appellant. 8. The learned Judge having closely appreciated the material evidence on record including oral as well as documentary evidence and those exhibits and also upon hearing the learned Counsel for the parties, found the Appellant guilty of the offence of killing his wife the deceased and accordingly convicted and sentenced him as already indicated above. Hence this Criminal Appeal. 9. PW 4 the Doctor who conducted the autopsy of the dead body of the deceased found the following injuries as revealed by him in his evidence: On examination I found bloodstained froth present in the mouth and stomach contains foul smelling dark yellow coloured partially digested food materials. There was no definite injury on the body of the deceased. The visceras were sent for histochemical examination. The cause of death could not be ascertained as the result of the histo-chemical report of visceras were not received. There was no definite injury on the body of the deceased. The visceras were sent for histochemical examination. The cause of death could not be ascertained as the result of the histo-chemical report of visceras were not received. Histo-chemical report is found is the case record which was directly sent to the Court Ext. 1 is the P.M. report. Ext. 1(1) is my signature. x x x The deceased may have taken food particles within 3 to 6 hours before her death. 10. In the background of the above injuries so found on the person of the deceased, Mr. Das, the learned Counsel representing the Appellant, has submitted that the entire findings of the learned Judge precisely based on the circumstantial evidence. However the testimony of those prosecution witnesses read with the report of the Forensic Laboratory cannot be sustained to indict the Appellant in commission of the alleged offence of murder of his wife as the prosecution could not prove its case beyond reasonable doubt. According to him, the circumstances from which the conclusion of guilt could be drawn was not fully established and the chain of evidence was not complete to rope in the Appellant under offence of commission of killing of the deceased. To counter the attraction of the conviction of the Appellant under Section 302, IPC, the learned Counsel has drawn our attention to the relevant portion of the evidence of the important witnesses including PW 5 who was the informant. It was deposed by PW 5 that admittedly the occurrence took place in the house of Abdul Barek Master. But surprisingly the prosecution did not prefer to examine Abdul Barek Master. Despite, the prosecution preferred to rely only on circumstantial evidence of those witnesses who could not even establish any convincing circumstances for conviction of the Appellant under Section 302, IPC. Drawing attention to the witnesses particularly PW 7 Musstt. Rafika Begum including the official witnesses namely PW 4 Dr. Despite, the prosecution preferred to rely only on circumstantial evidence of those witnesses who could not even establish any convincing circumstances for conviction of the Appellant under Section 302, IPC. Drawing attention to the witnesses particularly PW 7 Musstt. Rafika Begum including the official witnesses namely PW 4 Dr. P. Uzir who held the autopsy of the dead body of the deceased, PW 8, Mahesh Hazarika, the Investigating Officer (I.O.) as well as PW 9 Samudra Baishya, who being the Scientific Officer examined the contents i.e. stomach which contained part of liver, left kidney that sent to Forensic Science Laboratory, learned Counsel for the Appellant has submitted that the circumstances so exhibited in the instant case did not indicate the completion of the chain required for proving the case for conviction under the circumstantial evidence. 11. In support of his contention, Mr. Das has, straight way drawn our attention to an important decision pronounced in a case of Sharad Birdhichand Sarda v. State of Maharashtra reported in AIR 1984 SC 1622 wherein the Apex Court while dealing with a case of exactly similar nature of murder by administrating of poison, in paragraph 164 underlined the importance of proving the four important circumstances in such cases and those were (1) there must be a clear motive for an accused to administer poison to the deceased, (2) that the deceased died of poison said to have been administered, (3) that the accused had the poison in his possession and (4) that he had an opportunity to administer the poison to the deceased. All those important criteria, according to the learned Counsel, was clearly and vividly absent in the instant case. According to him the father, PW 5 while lodging the FIR clearly mentioned that his daughter the deceased while going on a Rickshaw on the relevant date and time i.e. about 8 a.m. on 22.3.1999 to visit some of her relatives house, the Appellant along with one co-accused namely Osman Ali upon finding her near Chaulkhowa bridge of Uttar Barpeta took her forcefully and confined her in the house of Osman Ali and having got the said news he went to the house of Osman Ali to bring his daughter back home. He also stated that said Osman Ali being his nephew promised to take his daughter back to his home and believing his words he came home leaving his daughter there. He also stated that said Osman Ali being his nephew promised to take his daughter back to his home and believing his words he came home leaving his daughter there. Next morning at 7 a.m. he sent his son Abdul Rouf (not examined by the prosecution) to the house of Osman Ali to enquire about and bring back his daughter but the accused persons assured his son to send back his daughter however instead of sending her daughter back, they took the deceased to the house of another accomplice namely Abdul Bark Master and brutally killed the deceased there. 12. Significantly in his evidence on oath this witness depicted a different and separate story. The version of PW 5 before the Court was that on the previous day of the occurrence his daughter was going to the house of her maternal uncle. In the meantime, accused saw his daughter and took her forcefully to the house of the co-accused Osman Gani of Colony. At about 8.00 p.m. at night the rickshaw puller who carried his daughter informed this witness that his daughter was taken forcefully by the accused. Immediately thereafter PW 5 rushed to the house of Osman Gani at 9.00 p.m. along with one Ainuddin of his place. PW 5 wanted to shift his daughter to his house but accused did not allow him to bring his daughter to his own home at Tetelital and on that day he came to know from the people that his daughter was killed. Receiving the information PW 5 immediately rushed to the house of the accused the Appellant and found his daughter lying on the road in front of the house of the Appellant. Then he came to Barpeta Police Station and filed written ejahar as already mentioned above. 13. Referring to evidence of PW 7, Musstt. Rafika Begum, our attention has been drawn by the learned Counsel for the Appellant that this witness deposed a contrasting story. Her contention on oath was that as on the eventful day the deceased was suffering from stomach pain, she immediately brought to the hospital but she died on the way to the hospital. This witness deposed that the father of the deceased filed a case and post-mortem was done by the doctor. Her contention on oath was that as on the eventful day the deceased was suffering from stomach pain, she immediately brought to the hospital but she died on the way to the hospital. This witness deposed that the father of the deceased filed a case and post-mortem was done by the doctor. In cross she asserted that at the time of occurrence the Appellant was with this witness and she did not know the cause of death of the deceased. 14. At the same time the Investigating Officer, PW 8, Sri Mahesh Hazarika in his evidence particularly, in cross, stated that the informant PW 5 did not state before him that the dead body of his daughter was lying on the road and took the dead body of his wife to his house from the house of Osman Gani. 15. Keeping in view the above evidence, it is submitted by the learned Counsel that this set of evidence cannot be said to be sufficient and accepted as circumstantial evidence for conviction of the Appellant under Section 302, IPC. 16. Mr. Z. Kamar, learned PP, on the other hand, supporting the impugned conviction and sentence, has submitted that although there is no evidence as such to show and indicate that the deceased was not administered poison by the husband-Appellant, the evidence of the expert i.e. the Scientific Officer, PW 9, Samudra Baishya clearly proved that the deceased was administered poison which was identified as organophosphorus Pesticide. That apart, the deceased was found all along with the company of the Appellant. Such company of the Appellant of the deceased would directly attract the theory of 'last seen together' in the case at hand. Applying the doctrine of 'last seen together' in the instant case as well as keeping in view the report of the evidence of the Scientific Officer, PW 9 the conviction of the Appellant under Section 302 , IPC is justified and deserves no interference from this Court. 17. We have given our anxious consideration to the extensive arguments so placed on record by the learned Counsel for the parties and also meticulously analysed and scrupulously scrutinized the entire evidence on record including those witnesses so examined by the prosecution. 18. 17. We have given our anxious consideration to the extensive arguments so placed on record by the learned Counsel for the parties and also meticulously analysed and scrupulously scrutinized the entire evidence on record including those witnesses so examined by the prosecution. 18. So far the evidence of PW 1 Lalbhanu Khatoon, PW 2 Sayeda Khatoon and PW 3 Khandakar Ali Hussain is concerned, we find that the testimony of those witnesses did not indicate anything in support of the prosecution as they clearly stated that they knew nothing about the incident. 19. Coming to the medical evidence of PW 4, Dr. Panchanan Uzir, we notice that while conducting the autopsy over the dead body of the deceased, he did not find any injury on the body of the deceased. Moreover he also opined that the cause of death could not be ascertained as reports of visceras were not received by him. 20. That being the position, it appears to us that the medical evidence of Doctor was not of much relevance. 21. We have also, thoroughly scanned the evidence of PW 7, who took the deceased to the Hospital. 22. Having gone through the testimony of those witnesses, we are of the clear view that those two witnesses i.e. PW 5 and PW 7 are not reliable, believable and trustworthy as the evidence projected by them are full of contradictions and inconsistencies, as already recorded above while considering the submissions of the learned Counsel for the Appellant. It also appears that there was sufficient deviation in the evidence of PW 5 the informant, as given in the Court against the contentions reflected in the FIR. 23. Given the entire facts and circumstances of the case in its entirety and also upon hearing the learned Counsel for the parties, we are of the firm view that those five established conditions as provided in Sharad B. Sarda's case (supra) are apparently missing in the instant case. In Sharad Birdhichand Sarda's case (supra) while dealing with a criminal case that primarily based on circumstantial evidence, the Supreme Court laid down as many as 5 conditions that required to be fulfilled to prove a case based on circumstantial evidence. In paragraphs 151, 152 and 153 it was held as under: 151. In Sharad Birdhichand Sarda's case (supra) while dealing with a criminal case that primarily based on circumstantial evidence, the Supreme Court laid down as many as 5 conditions that required to be fulfilled to prove a case based on circumstantial evidence. In paragraphs 151, 152 and 153 it was held as under: 151. Before discussing the case relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh 1952 SCR 1091 : AIR 1952 SC 343 . This case has been uniformly allowed and applied by this Court in a large number of later decisions up-to-date, for instance, the case of Tufail v. State of Uttar Pradesh (1996) 3 SCC 198 and Ram Gopal v. State of Maharashtra AIR 1972 SC 656 . It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (at pp. 345-46 of AIR)(supra): It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to excluded every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete a not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra 1973 SC 2622, where the following observations were made: certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 153. These vide golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence. 24. In the instant case, having meticulously discussed and scrutinized the material evidence on record, we find that circumstances from which the conclusion of guilt is to be drawn are not fully established to complete the chain of evidence. We also do not find such circumstantial evidence being cogent and substantive so as to convince us to affirm the impugned judgment. In the instant case the various links in the chain of evidence relied upon by the prosecution have not been satisfactorily proved and the circumstances did not point to the guilt of the accused with reasonable definiteness. 25. Having regard to the above judicial pronouncement and also on scrupulous survey of the circumstantial evidence so adduced by the prosecution through the witnesses, we are of the firm view that the Appellant is entitled to get the benefit of doubt as regards his involvement in commission of killing his wife and accordingly we have no hesitation to interfere with the impugned conviction and sentence. 26. 26. Consequently, the impugned conviction and sentence stand hereby quashed and set aside. 27. The Appellant be set at liberty forthwith if he is not wanted in connection with any other criminal case. 28. In the result, this appeal succeeds and stands allowed. 29. Send down the LCR immediately.