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2011 DIGILAW 88 (GAU)

Abdul Awal v. State of Assam

2011-02-02

MADAN B.LOKUR, MAIBAM B.K.SINGH

body2011
JUDGMENT Madan B. Lokur, J. 1. The Appellant is aggrieved by the conviction and sentence dated 9-9-2005 passed by the learned Sessions Judge, Morigaon in Sessions Case No. 99/2004. 2. On 15-10-2002 a First Information Report (FIR) was lodged by one Rustom Ali to the effect that around 7 p.m. on the previous day (on 14-10-2002) his younger sister Musstt Mojida Khatun, wife of the Appellant, committed suicide by taking poison. He, therefore, requested the officer in charge of the concerned police station to take necessary action in the matter. 3. Before any action could be taken by the said officer in charge, another FIR was lodged on 16-10-2002, this time by Isob Ali, uncle of the deceased (Musstt Mojida Khatun) to the effect that around 8 p.m. on14-10-2002 he received information that the deceased had committed suicide by taking poison around 7 p.m. The following day her husband that is the Appellant, confessed in the presence of some villagers and the Gaonburha that he had killed the deceased by secretly giving her poison along with vitamins. It appears, at that time the deceased was carrying a child and it is perhaps for this reason that she was taking some vitamins. 4. On the basis of the investigations, the Investigating Officer filed a charge sheet in which it was alleged that the Appellant had murdered his wife Musstt Mojida Khatun by administering poison with vitamins and thereby committed an offence under Section 302 of the IPC. 5. The prosecution examined as many as twelve witnesses in support of its case. Despite this, in our opinion, the prosecution has not been able to make out any case for convicting the Appellant. There is more than a reasonable doubt whether the Appellant had administered poison to the deceased or whether she had consumed the poison on her own. 6. We are not inclined to go into any great detail with regard to the evidence on record except to bring out a few relevant factors that have been brought to our notice by the appearing learned Counsel. 7. The learned Public Prosecutor submits that the deceased died due to poisoning and this is confirmed from the report of the Forensic Science Laboratory (FSL). In our opinion, there is some serious doubt in this regard. As noted above, the deceased died on 14-10-2002. 7. The learned Public Prosecutor submits that the deceased died due to poisoning and this is confirmed from the report of the Forensic Science Laboratory (FSL). In our opinion, there is some serious doubt in this regard. As noted above, the deceased died on 14-10-2002. Her post mortem examination was conducted on 20-12-2002 (after about two months). The report of the post mortem examination was that the cause of her death could not be ascertained. The viscera, stomach and its contents, part of the liver/lung/spleen/heart and kidney were preserved by the doctor conducting the post mortem for examination by the FSL to ascertain the cause of death. 8. The above body parts of the deceased were sent to the FSL only on 25-7-2003, that is, after a gap of about seven months. PW-1 Mr Anantaram Baishya, who was working as Senior Scientific Officer of the FSL, has testified to this and also stated on oath that the body parts mentioned above gave a positive test for organo chlorine pesticide. 9. There has been an unexplained and inordinate delay in sending the body parts for examination by the FSL. During this period, it is quite possible that the body parts could have been tampered with since there is nothing to suggest that they were kept sealed - instead they were kept only in plastic bags or in a coloured glass bottle. In the absence of anything to suggest that the body parts were sealed and received intact by the FSL, we cannot rule out the possibility of tampering. In any event we are not at all satisfied with the unexplained and inordinate delay of several months in sending the parts of the body of the deceased for examination by the FSL. However, we do not base our decision only on this. 10. Learned Public Prosecutor relied on the extra-judicial confession said to have been given by the Appellant. Reference was made to the testimony of PW-4 Isob Ali, who stated that the Appellant had admitted before a large number of people, including the Gaonburha, that he had mixed poison with the vitamins as a result of which Musstt Mojida Khatun died. He has also drawn our attention to the testimony of PW-6 Asrob Ali who also says that the Appellant confessed to his guilt in his presence and in the presence of the Gaonburha. He has also drawn our attention to the testimony of PW-6 Asrob Ali who also says that the Appellant confessed to his guilt in his presence and in the presence of the Gaonburha. Reference is also made to the testimony of PW-8 Rustom Ali to the effect that the Appellant admitted before several people that he had mixed poison with the vitamins which caused the death of Musstt Mojida Khatun. 11. The Gaonburha, Jalaluddin entered the witness box as PW-2 but he does not say anything at all of any extra-judicial confession having been made by the Appellant. We may note that a Gaonburha is a responsible person in the village and he is in the nature of a Village Headman. In the absence of his having stated anything to the effect that the Appellant had given an extra-judicial confession, we are not prepared to accept the testimony in this regard of PW-4 Isob Ali (aunt of the deceased) or of PW-6 Asrob Ali (brother of the deceased) or of PW-8 Rustom Ali (brother of the deceased) all of whom are interested witnesses. 12. We may note that in State of A.P. v. Kanda Gopaludu, (2005) 13 SCC 116 the Supreme Court held in paragraph 3 of the Report as follows: 3. ... ... ... It is now well established principle of law that extra-judicial confession is admissible if it inspired confidence and is made voluntarily. 13. Similarly, in Baldev Raj v. State of Haryana 1991 Supp (1) SCC 14 it was held in paragraph 9 of the Report as follows: 9. An extra-judicial confession, if voluntary, can be relied upon by the court along with other evidence in convicting the accused. The value of the evidence as to the confession depends upon the veracity of the witnesses to whom it is made. It is true that the court requires the witnesses to give the actual words used by the accused as nearly as possible but it is not an invariable rule that the court should not accept the evidence, if not the actual words but the substance were given. It is for the court having regard to the credibility of the witness to accept the evidence or not. When the court believes the witness before whom the confession is made and it is satisfied that the confession was voluntary, conviction can be founded on such evidence. 14. It is for the court having regard to the credibility of the witness to accept the evidence or not. When the court believes the witness before whom the confession is made and it is satisfied that the confession was voluntary, conviction can be founded on such evidence. 14. The decisions of the Supreme Court, referred to above, clearly indicate that the value of a confession will depend on the veracity of the witnesses before whom the extra-judicial confession is made as well as any other evidence in support of the extra-judicial confession. In the present case, we find that the extra-judicial confession is said to have been made before the relatives of the deceased. They may perhaps have some interest in having the Appellant convicted for the death of their near relative. The only independent witness in this regard is PW-2 Jalaluddin, who is the Gaonburha and the Village Headman. In his testimony, he does not say anything about the Appellant having made any extra-judicial confession in his presence, as claimed by PW-4 Isob Ali and PW-6 Asrob Ali. We would much rather accept his unbiased testimony rather than the possibly biased testimony of the relatives of the deceased. 15. Under the circumstances, taking into account the evidence before us in this regard, we are of the view that it is not possible to accept the contention of the learned Public Prosecutor that the unverified extra-judicial confession made by the Appellant is good enough to convict him. 16. It is then submitted by learned Public Prosecutor that the Appellant had a motive to kill Musstt Mojida Khatun. It has come on record that apparently the Appellant had an affair with some other lady which was objected to by his wife and soon after the death of Musstt Mojida Khatun the Appellant got married to that woman. While this may provide the Appellant a motive to kill Musstt Mojida Khatun, it may also provide a motive, out of sheer frustration, to Musstt Mojida Khatun to commit suicide because of the infidelity of her husband. We are, therefore, not inclined to speculate on this and cannot accept the contention of the learned Public Prosecutor in this regard. 17. It is submitted by learned Amicus Curiae appearing on behalf of the Appellant that the entire case of murder appears to be founded on some uncertainty. We are, therefore, not inclined to speculate on this and cannot accept the contention of the learned Public Prosecutor in this regard. 17. It is submitted by learned Amicus Curiae appearing on behalf of the Appellant that the entire case of murder appears to be founded on some uncertainty. He submitted that the first FIR lodged was by PW-8 Rustom Ali, the elder brother of the deceased. In this FIR he did not say anything about the killing of his sister but he says that she had in fact committed suicide. Interestingly, in his testimony, this witness says that he does not know the contents of the FIR. We are, therefore, doubtful whether any importance can be given to the FIR lodged by PW-8 one way or the other. 18. The second FIR was lodged on 16-10-2002, which is almost two days after the death of the deceased Musstt Mojida Khatun. This FIR was lodged by PW-4 Isob Ali, the uncle of the deceased. It is in this FIR that an allegation is made, for the first time, that the Appellant had murdered Musstt Mojida Khatun, but this information also is based on an alleged confession given by the Appellant. The FIR, however, does not mention anything about the presence of PW-4 at the time when the confession was made. PW-4 Isob Ali improves upon his statement in the FIR when he entered the witness box and says that the Appellant confessed to the crime in the presence of several people including PW-2 Jalaluddin, the Gaonburha. 19. Looking at the case in its totality, we have considerable doubt on the question whether the deceased was administered poison by the Appellant, as alleged by the prosecution, or whether she committed suicide by taking poison herself. The benefit of this doubt must necessarily go to the Appellant. 20. Under the circumstances, we have no option but to set aside the conviction and sentence of the Appellant and acquit him of the charge of having murdered his wife Musstt Mojida Khatun. 21. The appeal is allowed. Send back the Trial Court records immediately. 22. For the assistance rendered to us by learned Amicus Curiae, we direct the Assam State Legal Services Authority to remunerate him with a sum of Rs.5000/-. Appeal allowed.