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2015 DIGILAW 318 (GAU)

Ajijul Haque @ Ajijur & Anr. v. State of Assam

2015-03-17

MICHAEL ZOTHANKHUMA, P.K.SAIKIA

body2015
1. This appeal is directed against the judgment dated 31.3.2011, passed by the learned Addl. Sessions Judge, Fast Track Court, Cachar, Silchar in Sessions Case No. 3 of 2010 convicting the appellants, namely, Ajijul @ Ajijur and Ajmola Khatun of offence under section 302/34, IPC while acquitting other accused persons, namely, (1) Abdul Mannan, (2) Abdul Jalil and (3) Musstt. Banesa Khatun (Begum) who were all tried for committing offences under section 302/201/34, IPC in Sessions Case No. 3 of 2010. 2. Being aggrieved by and dissatisfied with the aforesaid judgment appellants, namely, Ajijul @ Ajijur and Ajmola Khatun ('the A-1' and’ A-2’, respectively) have preferred this appeal from jail citing several infirmities in the judgment under challenge. 3. Heard Mr. K. Gowswami, learned amicus curiae, appearing for the accused/appellants. Also heard Ms. S. Jahan, learned Addl. P.P. Assam, appearing for the State respondent. 4. The facts necessary for disposal of the present appeal, in brief, are that on 13.3.2009, one Ali Askar lodged an FIR with the Officer-in-charge Katigorah Police Station ('Katigorah PS.') alleging that Saina Begum, his sister, since deceased, was given in marriage to accused Ajijul Haque @ Ajijur about 10 months prior to the date of occurrence. However, soon after her marriage, her husband Ajijul Haque and his mother Ajmola Khatun along with other family members subjected her to torture, both physical and mental and such torture was made to compel her to meet their unlawful demand for dowry. 5. However, on 12.3.2009 at about 5.30 p.m. all the persons aforesaid tortured the said victim severally and then set her on fire by pouring kerosene oil on her and as a result of such torture, the sister of the informant died. On receipt of such FIR, O/c. Kaligorah P.S. registered a case vide Kaligorah P.S. Case No. 117/09 under section 304(13), IPC and took up investigation. 6. During the course of investigation, police visited the place of occurrence, caused an inquest to be done on the dead body of the deceased by the Executive Magistrate, sent it to hospital for post mortem examination, recorded the statements of the witnesses and did other needful and on completion of the investigation, I/O submitted charge sheet under section 302/201/34, IPC against the accused persons, namely, (1) Ajijul Haque @ Ajijur, (2) Abdul Jalil, (3) Abdul Mannan, (4) Musstt. Ajmola Khatun (Begum) and (5) Musstt. Banesa Khatun showing accused Musstt. Ajmola Khatun (Begum) and (5) Musstt. Banesa Khatun showing accused Musstt. Banesa Khatun as absconder. 7. The learned Magistrate, before whom charge sheet was so laid, committed the case to the Court of Sessions since the offence under section 302/201/34, IPC is exclusively triable by a Court of Sessions. When accused persons were brought before the court, charges of offence under section 302/201 /34, IPC were framed against them and the charges, so framed, on being read and explained to the accused persons, they pleaded not guilty and claimed to be tried. 8. During trial, prosecution has examined as many as 8 witnesses including the informant, Ali Askar (PW1). On completion of prosecution evidence, the statements of accused persons, namely, Ajijul Haque @ Ajijur and Musstt. Ajmola Khatun were recorded under section 313, Cr.PC. It may be stated that the examination of other three accused persons were done with since there was no incriminating materials against them. The appellants, however, denied having committed the offences aforesaid. But they declined to adduce any evidence in their defence. 9. On conclusion of the trial and after hearing the learned counsel for the parties, the learned court below found that the accused persons, namely, Ajijul Haque @ Ajijur and Ajmola Khatun (Begum) guilty of offence under section 302/201/34, IPC, convicted them there-under and sentenced them punishment as aforesaid. It is that judgment which has been assailed in this appeal. 10. Mr. K. Goswami, learned amicus curiae referring to various testimonies of various witnesses, submits that there was no eye witness to the incident in question for which the prosecution had relied on circumstantial evidence to make out the allegation against the accused persons. 11. According to him, it is a settled proposition of law that a person cannot be convicted on the basis of circumstantial evidence unless the circumstances, relied on, form a chain of events unbreakable anywhere which lead to lone and sole conclusion that the accused person, and none else, had committed the offence in question. In other words, the circumstantial evidence must completely rule out the involvement of person/persons other than the accused person . However, in our present case that is not the case - argues - learned amicus curiae. 12. In other words, the circumstantial evidence must completely rule out the involvement of person/persons other than the accused person . However, in our present case that is not the case - argues - learned amicus curiae. 12. In that connection, the evidence, rendered by the informant (PW1 and brother of the deceased), mother and father of the deceased (PW3 and PW4, respectively) are said to be contradictory and defective on material points. That apart, according to learned amicus curiae, there is evidence on record in the form of testimony of PW2 (Muklar Uddin) to show that on his arrival at the place of occurrence, PW2 saw the victim was still burning while Anwarul Haque, who is a brother of the accused was trying to put off the fire. Such evidence clearly shows that the possibility of deceased committing sviicide cannot be ruled out. 13. In his cross-examination, PW2 also says that while he arrived at the place of occurrence, he saw his son Anwarul Haque and Abdul Wahid at the place of occurrence. These two important witnesses were not examined, and that too, without assigning any reason whatsoever which raises a serious doubt about the authenticity of the prosecution. 14. It has been submitted that though the brother, father and mother of the deceased deposed something very serious against the appellant, yet, they did not divulge such vital information to the I.O. during investigation. Non-disclosure of vital information during investigation and disclosure of such statement during trial for the first time only requires the court to view such evidence with suspicion as such statement clearly comes within the purview of the term "contradiction" as contemplated in section 162, Cr.PC. 15. It is also the case of the learned amicus curiae that the evidence of very important prosecution PWs was found to be admixture of truth and falsehood, truth being totally fused with the falsehood meaning thereby the truthful part of the evidence of those PWs cannot be separated from their evidence which is laced with falsehood. It is a settled law that when the truth and falsehood in the evidence of a particular witness is fused inseparably, the entire evidence of such a witness needs to be discarded. 16. It is a settled law that when the truth and falsehood in the evidence of a particular witness is fused inseparably, the entire evidence of such a witness needs to be discarded. 16. In view of the above, the learned amicus curiae vehemently submits that accused persons need to be acquitted of the offences, they were charged with, since the prosecution case is found riddled with serious infirmities . He, therefore, urges this court to set aside the judgment under challenge on acquitting the accused persons of offence under section 302/201/34, IPC. 17. Controverting such argument, advanced from the side of the learned amicus curiae, Ms. S. Jahan, learned Addl. P.P. Assam arduously submits that the argument, advanced by the learned amicus curiae is not founded on the evidence on record having regard to the law holding the field in question. In that connection, it has been stated that there is indisputable evidence to show that the death of the deceased was homicidal in nature. 18. However, record demonstrates that there is a serious attempt on the part of the A-1 and A-2 and their other family members to show that the victim died an unnatural death suggesting thereby that she might have committed suicide on the night in question. Such attempt in the face of unquestionable evidence of doctor that the victim died a homicidal death very clearly established that the A-1 and A-2, and no one else, committed offence under section 302/201/34, IPC. 19. It has also been contended that there is evidence on record to show that the victim was found dead inside her matrimonial house. There is also evidence that on the night in question, both A-1 and A-2 were in their house but they were found missing next day in the morning which required the I.O. to arrest those two accused persons during investigation. Such revelation again strongly suggests that the accused persons had done to death the victim on the night in question. 20. Regarding the alleged contradictions, it has been stated that such contradictions are minor in nature and are bound to appear in the evidence of witnesses, more so, when they were asked to render evidence before the court after a gap of couple of years and when they are found to be illiterate and rustic people. Therefore, those contradictions should not be viewed seriously. Therefore, those contradictions should not be viewed seriously. Rather their presence in the evidence of witnesses makes their evidence more and more truthful. The learned Addl. P.P. therefore, urges this court to dismiss this appeal affirming the judgment of the learned trial court. 21. We have heard the rival submissions, advanced by the learned counsel for the parties having regard to the evidence on record and the judgment under challenge. Before we proceed further, we find it necessary to consider the evidence of Dr. Y.N. Singh, who was examined as PW8. According to him, on 13.3.2009, he was working as Demonstrator in the department of Forensic Medicine at Silchar Medical College & Hospital, Silchar. On that day, he conducted post mortem examination on the dead body of Saina Begum, aged about 20 years and found as follows: “General external appearance: Female dead body average built, dark brown complexion covered by a half burnt bed sheet, eyes and mouth were found closed, Rigor mortis were present Injury No. 1: Dermo epidermal to deep burns of the body seen covering 95% of total body surface area with flesh seen partially cooked in appearance at discrete places over the-abdominal wall upper thigh sparing parts of the neck interiorly and on the both sides, perineum, lower back region, burnt area were not ringed by any red zone of inflammation or inflammatory sign at the peripheral of the burnt injury as described suggest post mortem burns. Injury No. 2 Crescentic bruice injury measuring 1 x 1 cm seen over the sides of the neck above the thirold cartilage level on the lect sides. Injury No. 3: Crescentic burice injury measuring 1x 5 cm present over the midele part of side of neck on the right side. Injury No. 4: Crescentic burice mark injury present over the right side of neck 1 cm below injury No. 3 measuring 1x1 cm Opinion: Death was due to asphyxia as a result of manual trangulation during life, all burnt injuries were post mortem and covered 95% of total body surface area. Injuries Nos. 2, 3 and 4 were ante mortem and caused by blunt forces and that was homicidal in nature. Approximate time since death was 12 to 24 hrs. Ext. 6 is the P.M. report and Ext 6(1) is my signature. Xxxx Injury No. 2, 3 and 4 may be caused by fall on hard substance. Injuries Nos. 2, 3 and 4 were ante mortem and caused by blunt forces and that was homicidal in nature. Approximate time since death was 12 to 24 hrs. Ext. 6 is the P.M. report and Ext 6(1) is my signature. Xxxx Injury No. 2, 3 and 4 may be caused by fall on hard substance. It is not a fact that the death was not caused by manual strangulation.” 22. The evidence of doctor unmistakably reveals that the victim died a homicidal and after her death, she was burnt by fire. Injury Nos. 2, 3 and 4 clearly show that the manual strangulation had occasioned the death of victim. So situated, let us see who occasioned the death of victim on or about 12.3.2009. 23. PW1 (brother) PW3 (mother) and PW4 (father) of the deceased. In her evidence, PW 3 states that soon after her marriage, accused Ajijul Haque @ Ajijur (husband of the deceased) and his mother had subjected her daughter to torture of enormous proportion. Such fact of torture was communicated to her mother by the victim herself. Even some other persons too communicated such state of affairs to her son Ali Askar. 24. On the fateful day, on being informed that her daughter was lying death in her matrimonial house after sustaining burnt injuries, she went to such place and found her daughter lying dead. Her husband (PW4) too accompanied her. When they arrived at the house of accused persons, they did not find her son in law or any of his family members in their house. 25. PW4, Abdul Subhan (father of the deceased) states that his daughter was given in marriage to accused Ajijul Haque @ Ajijur about 10 months before the incident in question. On the morning which followed the eventful night, a person from the village of Ajijul Haque informed him over telephone that his daughter died sustaining burn injuries. On being so informed, he along with his family members visited the place of occurrence and found the door of the house of accused persons closed. 26. After opening the doors of the house of the accused persons, he saw that his daughter lying dead on the floor of the house. Her body bore the mark of burn injuries. On being so informed, he along with his family members visited the place of occurrence and found the door of the house of accused persons closed. 26. After opening the doors of the house of the accused persons, he saw that his daughter lying dead on the floor of the house. Her body bore the mark of burn injuries. It is also in his evidence that during her life time, her daughter told them that she was habitually tortured by A-1 and A-2. In his re-examination, he also deposes that his son in law demanded money from his son too. 27. PW1, Ali Askar (brother of the deceased), deposes in a similar manner stating that after the marriage of his sister with accused Ajijul Haque, said Ajijul Haque and his mother stated too torturing her regularly demanding dowry. The deceased communicated such information to them. On 12.3.2009, he got information over phone that his sister died sustaining burn injuries. 28. On getting such information, he and his other family members went there and found his sister lying dead inside her matrimonial house. He, therefore, lodged an FIR which he proved as Ext 1. According to him, during the course of investigation, police seized some articles, such as, (1) One Jarikon having some traces of kerosene oil therein, (2) Some clay mixed with kerosene and (3) Two burnt legs of plastic chairs. 29. Police also seized some other articles, such as, (1) one wooden piece and (2) an iron piece on the strength of the seizure list (Ext. 2). Mat. Ext. 1, Mat. Ext 2 Mat Ext 3., Mat Ext. 4 and Mat Ext. 5 are the seized (i) Jarikon, (ii) clay, mixed with kerosene, (iii) burnt pieces of legs of plastic chair, (iv) Wooden piece and (v) iron piece respectively. Police also seized a plastic rope on the strength of seizure list (Ext. 2) which he proved as Mat. Ext. 6. 30. Md. Muktar Ali (PW2), Md. Intajur Rahman Borbhuyan (PW5) and Md. Fakrauddin Borbhuyan (PW6) also depose that on their arrival at the place of occurrence, they had found the daughter of the PW 3 and PW4 lying death inside the house of the accused persons. PW2 and PW5 also depose that during the course of investigation, police seized some articles from the place of occurrence. 31. Fakrauddin Borbhuyan (PW6) also depose that on their arrival at the place of occurrence, they had found the daughter of the PW 3 and PW4 lying death inside the house of the accused persons. PW2 and PW5 also depose that during the course of investigation, police seized some articles from the place of occurrence. 31. PW 7, Sri Sudip Chakraborty, S.I. of Police, deposes that on 12.3.2009 he was working as attached officer at Bihara Out Post under Katigorah P.S. On that day, at about 7 p.m on getting information about the death of the deceased over telephone, he made G.D. Entry vide No. 178 dated 12.3.2009 and proceeded to the place of occurrence. In the meantime, O/c Katigorah P.S. Also received an FIR and thereafter, he was entrusted with the investigation of the case. 32. During the course of investigation, he visited the place of occurrence, caused an inquest to be done on the body of the deceased by the Magistrate, sent it to Hospital for post mortem examination, seized some articles during the course of investigation on the strength of the seizure list Ext. 2, prepared a sketch map of the place of occurrence and did other needful and submitted charge sheet under section 302/201/34, IPC against as many as 5 accused persons and forwarded them to court to stand trial. 33. Now, let us see, how far such evidence makes out the charges leveled against the A-1 and A-2. On a careful perusal of the evidence on records, it is found that there are some infirmities in the testimonies rendered by PWs, PW 3 and PW4 in particular. But such infirmities are of minor nature and occurred in peripheral aspects of the prosecution case which are found to be far inconsequential in causing any damage to the prosecution case. 34. On perusing the evidence on record more and more, we have found from such evidence that the daughter of PWS and PW4 died a homicidal death after she being strangulated on the night aforementioned although her body was burnt after her death to look it like a case of suicide. The evidence of doctor which remains far from being demolished makes such position abundantly clear. 35. There is also evidence on record to show that since the time of marriage of the victim with A-l, both A-1 and A-2 tortured her regularly demanding dowry. The evidence of doctor which remains far from being demolished makes such position abundantly clear. 35. There is also evidence on record to show that since the time of marriage of the victim with A-l, both A-1 and A-2 tortured her regularly demanding dowry. Such state of affairs reveals that the relation between the deceased and A-1 and A-2 at all the material times was far from cordial. The strained relationship between accused and the deceased again raise a serious doubt about the complicity of A-1 and A-2 in the killing of the daughter of PW3 and PW4 on the night of 12.3.2009. 36. Since A-1 and A-2 started demanding the victim dowry since the date of her marriage with A-1 and since the victim could not. meet such illegal demand for dowry for which A-1 and A-2 subjected her to torture both physical and mental, such strained relationship between the parties aforesaid in our opinion, yet again shows the motive of accused persons in liquidating the life of wife of the accused A-1 on the night of 12-3.2009. 37. We may note here that there is indisputable evidence on record to show all the family members of the A-1 including A-1 and A-2 fled the scene soon after the incident leaving the dead body of the victim in their house. We may also note here that before leaving their house, the body of the victim was burnt to look it like a case of suicide. Such conduct in the facts and circumstances of the present case again shows the complicity of A-1 and A-2 in the crime in question. 38. When all those circumstances of enormously incriminating nature are considered together in the light of the fact that the victim died due to strangulation as well as the fact that her body was burnt after her death to look it like a case of suicide, it would appear more than clear that both A-1 and A-2 had killed the victim on 12.3.2009. 39. We have also found that all the incriminating circumstances were brought to the notice of aforesaid accused persons in order to enable them to offer explanation to those incriminating circumstances. However, instead of offering reasonable explanation, A-1 and A-2 chose to give some evasive replies to those queries, so made to them. 40. 39. We have also found that all the incriminating circumstances were brought to the notice of aforesaid accused persons in order to enable them to offer explanation to those incriminating circumstances. However, instead of offering reasonable explanation, A-1 and A-2 chose to give some evasive replies to those queries, so made to them. 40. It is settled law that if the incriminating circumstances, put to an accused person are not replied to properly, it may also provide the prosecution the missing links in the prosecution case. Since in our instant case, A-1 and A-2 did not explain some seriously incriminating circumstances, stared direct at him, it needs to be held that A-1 and A-2 are the authors of the crime in question and after committing the same, they, made effort to disappear the evidence against them. 41. Our forgoing discussion has now also established without any shadow of doubt that both A-1 and A-2 committed aforesaid crime in furtherance of their common intention. Being so, in our opinion, the prosecution has successfully proved the charges under section 302/201/34, IPC against the A-1 and A-2 beyond air reasonable doubts. 42. Therefore, the conviction of A-1 and A-2 of offences under section 302/201/34, IPC and their subsequent punishment as aforesaid cannot be faulted. Accordingly, the judgment under challenge is found free from any infirmity and same is accordingly affirmed on dismissing the present appeal. 43. Return the LCR. 44. We deeply appreciate the assistance rendered by Mr. K. Goswami, the learned amicus curiae, in disposing the present appeal. We, therefore, direct the State to pay him Rs. 7,000 as being his professional fee within a period of 3 months from the date of receipt of a certified copy of this judgment.