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2014 DIGILAW 1033 (GAU)

Rabiya Khatoon v. State of Assam

2014-12-02

C.R.SARMA, PRASANTA KUMAR SAIKIA

body2014
JUDGMENT C.R. Sarma, J. 1. Heard Mr. D. Nandi, learned Amicus Curiae, appearing for the appellant. Also heard Mr. K.A. Mazumder, learned Addl. P.P., Assam, appearing for the state respondent. The challenge, in this appeal, from jail, is to the judgment and order, dated 9.12.2010, passed by the learned Addl. Sessions Judge (FTC), Lakhimpur, at North Lakhimpur, in Sessions Case No. 50 (NL)/2010. By the impugned judgment and order the learned Sessions Judge convicted the appellant and sentenced her to suffer imprisonment for life and pay fine of Rs. 2,000/- in default suffer imprisonment for another period of one month, The learned trial Judge observed that the period already undergone by the appellant shall be treated as setoff under Section 428 IPC. Aggrieved by the said conviction and sentence, the convicted person, as appellant, has come up with this appeal. There being none to represent the appellant, who has been undergoing imprisonment in the jail, Mr. D. Nandi, learned counsel has been appointed as Amicus Curiae to represent the appellant. 2. The prosecution case, in brief, is that, on 20.11.2009, at about 5 p.m., Mr. Muslem (PW-1) i.e. the father of Mr. Majibur Ali (hereinafter called the deceased), came to know that his son i.e. the deceased was killed. On being so informed he rushed to the house of the deceased and found a gathering of people. He noticed the dead body of the deceased hanging from a bamboo near the gateway of the house of the deceased. Accordingly, on the same day, he lodged an FIR with the police. After arrival of police, the dead body was brought down from the hanging position. The prosecution version is that the appellant, who is the wife of the deceased, in collusion with one Mr. Deokan Saikia (already acquitted), caused the death of the deceased by strangulation and kept the dead body in hanging position. 3. During the investigation, the Investigating Officer prepared a sketch map, the inquest report, send the dead body of the deceased for post mortem examination, examined the witnesses and arrested the appellant and Mr. Deokan Saikia. At the close of the investigation, the Investigating Officer seized apiece of cloth vide seizure list exhibit 3. The Investigating Officer submitted charge-sheet of the appellant and Sri Deokan Saikia under Section 302/34 IPC. The offence being exclusively triable by the Court of Sessions, the learned Addl. Deokan Saikia. At the close of the investigation, the Investigating Officer seized apiece of cloth vide seizure list exhibit 3. The Investigating Officer submitted charge-sheet of the appellant and Sri Deokan Saikia under Section 302/34 IPC. The offence being exclusively triable by the Court of Sessions, the learned Addl. CJM, Lakhimpur, North Lakhimpur committed the case to the Court of Sessions. The learned Addl. Sessions Judge (FTC), Lakhimpur, North Lakhimpur framed charge under Section 302/34 IPC against the accused persons The charge was explained and read over to the said accused persons to which they pleaded not guilty and claimed to be tried. In order to prove its case, the prosecution examined as many as 11 (eleven) witnesses, including the medical officer, Dr. Simanta Saikia (PW-5), who performed the autopsy on the dead body and the investigating police officer (PW-11). The accused persons were examined under Section 313 Cr. P.C. They denied the allegations brought against them and declined to adduce defence evidence. 4. Considering the evidence, on record, the learned Addl. Sessions Judge (FTC), acquitted Deokan Saikia and convicted and sentenced the appellant, as indicated above. 5. Mr. D. Nandi, learned Amicus Curiae referring to the evidence, on record, has submitted that there is no substantive evidence against the appellant and that, except extra-judicial confession, which was obtained by use of threat, there is no whisper regarding involvement of the appellant. The learned amicus curiae has submitted that the alleged extra-judicial confession, which was obtained under threat, cannot be accepted as substantive evidence and as such the impugned conviction and sentence, which has been based on the said extra judicial confessional statement, can't stand the scrutiny of law. The learned amicus curiae has submitted that the learned Sessions Judge committed error by recording the conviction and sentence only on the basis of the said extra-judicial confession and as such, the impugned judgment and order is liable to be set aside thereby acquitting the appellant. 6. Mr. K.A. Mazumder, learned Addl. P.P., supporting the impugned judgment and order has submitted that the said extra judicial confession coupled with the circumstantial evidence that the dead body of the deceased was found in hanging condition, without any ligature mark, sufficiently lead to the conclusion that the appellant, who was the wife of the deceased, caused the death of her husband by strangulation. The learned Addl. The learned Addl. P.P. has also submitted that the medical evidence has ruled out the possibility of ante-mortem hanging and as such, there is sufficient materials to believe that the appellant caused the death of the deceased. In view of above, the learned Addl. P.P. has submitted that the impugned judgment and order does not warrant any interference. 7. Having heard the learned counsel appearing for both the parties, we have carefully examined the evidence, on record. Admittedly, there is no eye witness to the occurrence. The father of the deceased, who deposed as PW-1, stated that, on his arrival at the house of the said son, he found the dead body of his son hanging from a bamboo tree. He further stated that the dead body was brought down, after the arrival of the police. From the exhibit No. 3 i.e. the seizure list, it is found that the piece of clothe, which was used for hanging, was seized by the investigating officer. Therefore, there is no difficulty in holding that the deceased was found in hanging condition. Now, the question is, as to how and in what manner, the deceased met with his death. PW-1 stated that the appellant i.e. the daughter-in-law was interrogated by some women of the locality and she admitted that she along with Mr. Deokan Saikia (since acquittal) had caused the death of her husband. 8. Sri Balin Borah (PW-2), who also appeared in the place of occurrence, stated that, the appellant, on being threatened by the villagers, had admitted that she had caused the death of her husband. From the evidence of PW-2, it is clearly found that the appellant had confessed her guilt, on being threatened by the villagers. Therefore, it is found that the said extra judicial confessional statement, being obtained under threat, was not a voluntary one. As the extra-judicial confessional statement was not voluntary, the same cannot be used, as evidence, against the maker of the confessional statement, i.e. the appellant. 9. PW-3, Mr. Munindra Dutta, who appeared in the place of occurrence, stated that the appellant, on being asked by the villagers and police, had confessed her guilt it is settled law that confessional statement, made before police cannot be accepted as substantive piece of evidence. 9. PW-3, Mr. Munindra Dutta, who appeared in the place of occurrence, stated that the appellant, on being asked by the villagers and police, had confessed her guilt it is settled law that confessional statement, made before police cannot be accepted as substantive piece of evidence. That apart, the evidence given by PW-2, has fairly indicates that the said extra judicial confession was not a voluntary one, in as much as, the same was obtained by application of threat. In tune with the evidence, given by PW Nos. 1, 2 and 3, Sri Keshab Saikia, deposing as PW-4, stated that the dead body of the deceased was found hanging from a bamboo tree and on being interrogated by the villagers, the appellant had admitted that she killed her husband by strangulation. This witness, in his cross-examination, stated that the appellant, due to death other husband was mentally unstable and that she was not in a position to speak like a normal person. He further stated that he could not say whether the cause of death of the deceased was suicidal or not. Though the PW-4 was subjected to cross-examination, his said evidence remained un-demolished. 10. From the evidence of PW 4, it is clearly found that the appellant, due to death of her husband, was not in mentally stable condition and that she was not in a position to speak like a normal person. His ignorance regarding cause of death of the deceased also raises doubt about the veracity of his evidence. Admittedly, all the said witnesses i.e. PW Nos. 1, 2, 3 and 4, arrived at the place of occurrence, almost at the same time. The ignorance of PW-4 regarding the cause of death and his specific statement regarding mental condition of the appellant raises doubt about the voluntariness of the said extra-judicial confession. Further, the FIR was lodged by PW-1, who claimed to be present at the time of making the alleged extra-judicial confession by the appellant. According to the PW-1, the said extra-judicial confession was made in the morning of 20.11.2009, but the FIR was silent about the said extra-judicial confession. Failure to mention such a vital fact in the FIR also raises doubt about veracity of the prosecution version regarding extra-judicial confession. 11. According to the PW-1, the said extra-judicial confession was made in the morning of 20.11.2009, but the FIR was silent about the said extra-judicial confession. Failure to mention such a vital fact in the FIR also raises doubt about veracity of the prosecution version regarding extra-judicial confession. 11. In view of above, considering entire aspect of the matter, we do not find it to be safe to conclude that the appellant had voluntarily made extra-judicial confession, indicating her involvement with the death of her husband. The extra-judicial confession, which is not found to be true and voluntary, cannot be acted upon to base the conviction, that too, without any corroboration by substantive evidence. In the present case, except the said extra-judicial confession, there is no other evidence indicating involvement of the appellant. It is doubtful whether the deceased was killed by the appellant or not. It is settled law that in the existence of two views i.e. one going in favour of the accused person and another in favour of the prosecution, the appellant should get the benefit. Therefore, we are inclined to grant benefit of doubt in favour of the appellant. 12. In view of what has been discussed above, we have no hesitation in holding that the prosecution failed to prove, beyond all reasonable doubt, that the appellant had caused the death of the deceased. We find sufficient merit in this appeal. Accordingly, the appeal is allowed. The impugned conviction and sentence are set aside. The appellant is acquitted and she be set at liberty forthwith, if not wanted in any other case. We acknowledge with appreciation the service rendered by Mr. D. Nandi, learned Amicus Curiae and order that an amount of Rs. 7,000/- be paid to Sri Nandi as his remuneration by the State. Return the LCR.