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2013 DIGILAW 719 (GAU)

Suriya Khatun v. State of Assam

2013-10-01

ANIMA HAZARIKA, TINLIANTHANG VAIPHEI

body2013
JUDGMENT Tinlianthang Vaiphei, J. 1. The legality of the judgment dated 16.10.2012 passed by the learned Sessions Judge, Goalpara in Sessions Case No. 82/2010 convicting the appellant U/s. 302 IPC and sentencing her to life imprisonment is called into question in this appeal. The case of the prosecution is that on 3.7.2010, one Abdul Waheb lodged an FIR with the Officer-in-Charge of Baguan Police Station to the effect that at around 12 O'clock, the appellant killed his nephew Ajmat Ali by burning him and strangulating him by taking the advantage of the absence of other inmates in the house and then threw him in a deep pond behind their house. On receipt of the FIR, the Officer-in-Charge of Baguan Police Station registered a regular case being Baguan Police Station Case No. 63/2010 u/s. 302 IPC and investigated into the case. 2. In course of investigation, the appellant was arrested, the statement of the witnesses were recorded by the police. He also visited the place of occurrence, made inquest over the body of the deceased and sent the dead body to the Medical Officer for post-mortem examination. On completion of the investigation, having found a prima facie case against the appellant, she was charge-sheeted u/s. 302 IPC to stand the trial. On commitment, the learned Sessions Judge, Goalpara District, framed the charge against the appellant u/s. 302 IPC, to which she pleaded not guilty and claimed to be tried. 3. To bring home the charge against the appellant, the prosecution examined as many as nine witnesses including the Medical Officer conducting the post-mortem examination. After taking evidence of all the prosecution witnesses, the appellant was examined by the trial Court u/s. 313 Cr.P.C. The case pleaded by the appellant was that of total denial. No defense evidence was adduced by the appellant. On the conclusion of the trial, the learned Sessions Judge passed the impugned judgment of conviction and sentence. 4. Having heard Mr. A.R. Sikdar, the learned counsel for the appellant and Mr. D. Das, the learned Addl. Public Prosecutor appearing for the State, we have no hesitation to hold that the conviction of the appellant, on the basis of the available materials on record, cannot be sustained in law. 4. Having heard Mr. A.R. Sikdar, the learned counsel for the appellant and Mr. D. Das, the learned Addl. Public Prosecutor appearing for the State, we have no hesitation to hold that the conviction of the appellant, on the basis of the available materials on record, cannot be sustained in law. It may be noticed that in the course of the trial, most of the prosecution witnesses had turned hostile and declared them accordingly and whatever incriminating evidence sought to be established by the prosecution were rendered suspect. The case of the prosecution is primarily based on circumstantial evidence, which, in turn, is based on last seen together theory. The first point for consideration is as to whether the appellant and the deceased were last seen together. Before proceeding further, the evidence of P.W.1 and P.W.6 needs to be closely scrutinized since the success of the prosecution case hinges on the credibility of these two witnesses. 5. P.W.1 is the brother of the father of the deceased while the appellant is the first wife of the brother of P.W.1. According to him, the incident took place about 7 months ago. He deposed that on that day, the appellant and the mother of the deceased along with other inmates of their house had gone for fishing. P.W.1 further deposed that at the time when they went for fishing, his mother Rabiya Khatun, who was examined as P.W.3, the appellant and his son were at home and that while they were undergoing fishing, one person had informed them that something had happened at their home. When they rushed home, deposed PW 1, the mother of the appellant also accompanied them and on their arrival, he found the dead body of the deceased, which had been just lifted from the pond near their house. This witness was thereafter declared hostile. In order to corroborate the statement of P.W.1, the prosecution examined P.W.6, who is the mother of the deceased and who was left for fishing together with PW 1 and others. In her statement, P.W.6 deposed that her deceased son was 4 years old at that time and that the occurrence had taken place one year ago and at 9 AM on that day, when they had gone for the fishing, the appellant, her co-wife, was at home and told her that she would keep her eye on her son (the deceased). She further deposed that her 'jha' (the wife of her husband's brother) and her ailing mother-in-law were also at home and that they returned home around 12 o'clock. She testified that on their arrival, when she inquired about her son, the appellant informed her that her son was with her mother-in-law, but when she went to her mother-in-law, she, in turn, suggested that it was her (PW 6) who took the deceased along with her for the fishing. 6. Thus, this was how an attempt was made by the prosecution to convict the appellant by seeking to prove that the appellant and the deceased were last seen together at the house of PW 6 on the fateful day. The Apex Court in Bodhraj v. State of J&K, (2005) 3 SCC 114 explained the principle of last seen together as under: 31. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. 7. In the case of last seen together, it becomes clear that it is the duty of the prosecution is to prove the time at which the accused and the deceased were found together and the approximate time of death of the deceased. This is important inasmuch as the possibility of the others coming into the scene of crime during that period is excluded. We have given our anxious consideration to the evidence of the prosecution witnesses as well as the evidence of the Medial Officer, who was examined as P.W. 7 to find out the time of death of the deceased. It must be noted that the proximate time when the PW 1 and PW 6 left for fishing leaving behind the deceased with the appellant. It must be noted that the proximate time when the PW 1 and PW 6 left for fishing leaving behind the deceased with the appellant. This information was never sought for by the prosecution at the time of their examination. Moreover, the 'jha' of PW 6 and her ailing mother-in-law were also left behind at their house together with the appellant at that time. To compound the problems of the prosecution, PW 7, who was the Medical Officer conducting the postmortem examination, did not even mention the time of death of the deceased either in his post mortem report or in his testimony. Though the charge framed against the appellant was that he committed the murder by strangulating him and setting him on fire, yet PW 7 opined that the deceased died of drowning. 8. In the absence of any evidence to show the time of death of the deceased, it is not possible to accept the case of the prosecution that the appellant and the deceased were last seen together when he was alive. Thus, the first case of the prosecution falls to the ground. At the risk of repetition, in a case of circumstantial evidence, the following cases must be satisfied:- 1. the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; 2. those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; 3. the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and 4. the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only consistent with the guilt of the accused but should be inconsistent with his innocence. 9. The other circumstance relied on by the prosecution is the seizure of the cauldron used for burning the abdomen of the deceased. Unfortunately, the prosecution is unable to establish convincingly the seizure of the cauldron. P.W.6 in her cross examination disclosed that the cauldron, which was exhibited as Mat. Ext.1 was not the one with which the injury was caused upon the abdomen of the deceased. Unfortunately, the prosecution is unable to establish convincingly the seizure of the cauldron. P.W.6 in her cross examination disclosed that the cauldron, which was exhibited as Mat. Ext.1 was not the one with which the injury was caused upon the abdomen of the deceased. Moreover, it is contended by the learned counsel for the appellant that the cauldron was never sent for forensic examination to establish that the same was used by the appellant. We find force in the contention of the learned counsel for the appellant that if the cauldron was suspected to have used by the appellant for commission of the crime, it should have been sent for forensic examination to detect his finger prints. This could have gone a long way in proving the case of the prosecution that the cauldron was used by the appellant in the commission of the crime. Under the circumstances, the prosecution has failed to prove that the appellant was last seen with the deceased when he was alive and that the weapon of offence, namely, cauldron was seized from, or used by appellant for commission of the crime. When these evidence are excluded from evidence, we are afraid, there are no other tangible evidence to bring home the charge against the appellant. In other words, there are no circumstances, taken cumulatively, which should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the appellant and none else. Under the circumstances, we find it difficult to sustain the impugned judgment of conviction and sentence. It is most unfortunate that the prosecution could not even prove the time of death of the deceased and that the investigation was perfunctorily conducted while the evidence of the Medical Officer conducting the postmortem examination, left much to be desired. We are constrained to observe that due to the many gaping holes left behind by the prosecution, the real culprit could not be brought to justice by this Court. 10. For the reasons stated in the foregoing, this appeal is allowed. The impugned judgment of conviction and sentence dated 16.10.2012 is hereby set aside. The appellant stands acquitted and is accordingly set at liberty forthwith unless she is required in some other case. Transmit the LC records. Appeal allowed.