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2015 DIGILAW 608 (GAU)

Rasidul Islam v. State of Assam

2015-05-20

M.R.PATHAK, P.K.SAIKIA

body2015
This appeal is directed against the judgment dated 30.04.2012 passed by the learned Sessions Judge, Sivasagar in Sessions Case No. 103(S-S)/2010, convicting one, Rasidul Islam, appellant, herein, of offence under Section 302 IPC and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 5,000/- (Rupees five thousand), in default, Rigorous Imprisonment for another 6 (six) months for the offence aforesaid. 2. Being aggrieved by and dissatisfied with the aforesaid judgment, Sri Rasidul Islam, the appellant (herein after referred to as the 'accused person') preferred this appeal from jail alleging several infirmities of extremely serious in nature. 3. We have heard Ms. R D Mozumdar, learned Amicus Curiae for the appellant and Mr. D Das, learned Additional Public Prosecutor, Assam. 4. The case, projected by prosecution in the FIR dated 04.05.2010 and in the subsequent trial, in brief, are that on the night of 03.05.2010, accused Rasidul Islam brutally assaulted his wife which occurred her death same night. An FIR to that effect on being lodged by one Md. Sayed Ali, father of the victim woman, with O/C Bihubor Police Station, Sivasagar , on the next day , O/C, Bihubor Police Station, registered a case vide Bihubor P.S. Case No. 23/2010 under Section 302 IPC and he himself took up the investigation. 5. During the course of investigation, the Investigating Officer (in short, I/O) visited the place of occurrence, conducted inquest on the body of the deceased, sent the same to the Hospital for postmortem examination, examined the witnesses, seized certain articles, did other things needful and on conclusion of investigation, he submitted Charge-Sheet under Section 302 IPC against the accused person and forwarded him to the Court to stand his trial for the offence aforesaid. 6. The learned Magistrate, before whom Charge-Sheet was so laid, committed the case to the Court of Session since the offence under Section 302 IPC is exclusively triable by the Court of Session. On receipt of the case on commitment and on hearing the learned counsel for the parties, the learned Sessions Judge, Sivasagar framed charge under Section 302 IPC against the accused person and charge, so framed, on being read over and explained to the accused person, he pleaded not guilty and claimed to be tried. 7. On receipt of the case on commitment and on hearing the learned counsel for the parties, the learned Sessions Judge, Sivasagar framed charge under Section 302 IPC against the accused person and charge, so framed, on being read over and explained to the accused person, he pleaded not guilty and claimed to be tried. 7. During trial, prosecution has examined as many as 15 (fifteen) witnesses including the informant, Medical Officer (PW7) who conducted autopsy on the dead body of the deceased and the Investigating Officer of the case. The statement of the accused person under Section 313 Cr.P.C. was recorded. 8. Accused admitted to have married the deceased and having lived with her in a rented house. He, however, claimed that on the fateful night he was not in his house since he had to remain away from his house on the night in question in connection with his work. However, on being required, he declined to adduce any evidence in his defence. 9. On conclusion of the trial and on hearing the arguments advanced by the learned counsel for the parties, learned Sessions Judge was pleased to convict the accused person of offence under Section 302 IPC and sentenced him to punishment as aforesaid. It is that judgment which has been assailed in present appeal. 10. Ms. R D Mozumdar, learned Amicus Curiae submits that the judgment under challenge cannot be sustained since it suffers from several infirmities. In that connection, it has been contended that prosecution case is entirely based on circumstantial evidence. However, prosecution hardly proved any circumstance of incriminating nature indicating the involvement of the accused person with crime in question , much less its proving the circumstances forming a chain of evident unbreakable anywhere leading to sole and lone conclusion that the accused and none else was the author of the crime under consideration. 11. Referring to the evidence of Md. Sayad Ali (PW1), Ms. Hazara Khatun (PW2), Miss. Mukhima Begum (PW6) who are father, mother and sister of the deceased respectively, it has been stated that prosecution has placed huge reliance on the testimonies of those witnesses, however, ignoring the fact that those witnesses cannot be relied on for reasons more than one. 12. Referring to the evidence of Md. Sayad Ali (PW1), Ms. Hazara Khatun (PW2), Miss. Mukhima Begum (PW6) who are father, mother and sister of the deceased respectively, it has been stated that prosecution has placed huge reliance on the testimonies of those witnesses, however, ignoring the fact that those witnesses cannot be relied on for reasons more than one. 12. In support of such contention, it has been stated that evidence of PW1 is found to be contradictory, whereas the evidence of PW2 and PW6 are inconsistence to the testimony rendered by PW1. Worst still, their testimonies do not find any support from independent witnesses. In such a scenario, no implicit reliance could have been placed on the testimonies of the aforementioned witnesses in recording a verdict of guilt of offence under Section 302 IPC against the accused person. 13. It has been stated that PW1, PW2 and PW6 claims that the deceased, wife of the accused, lived in a rented house during the period under consideration. However, such evidence does not draw support from sketch map, (Ext. 4) as well as the testimony rendered by the Investigating Officer, Sri Montu Ram Bora (PW15). To confirm such a claim it has been pointed out that PW15 deposes that during the time under consideration, the deceased resided not in a rented house but in a house inside the premises of a stone crushing factory. 14. On the other hand, Ext. 4, sketch map reveals that the dead body was found in an abandon house and in the rented house as claimed by the PWs aforesaid. Such revelations, on a point as important as the place of occurrence, according to the learned Amicus Curiae, raise a serious doubt about the veracity of the entire prosecution case. 15. It has also been contended that there is evidence on record in the form of testimony of PW1 to show that when the incident in question occurred, the accused was not in his house. Therefore, the finding of the Trial Court that on the night in question, the accused and the deceased lived together in the rented house is found to be without any substance. 16. It has also been contended that the incident in question occurred in a room which is flanked by many other households. Therefore, the finding of the Trial Court that on the night in question, the accused and the deceased lived together in the rented house is found to be without any substance. 16. It has also been contended that the incident in question occurred in a room which is flanked by many other households. However, there is nothing on record to show that any person from such locality was made witnesses to the case under consideration. Such a failure again makes an already doubtful prosecution case more and more doubtful. He, therefore, urges this Court to set aside the judgment and to acquit the accused of offence under Section 302 IPC. 17. On the other hand, Mr. D Das, learned Additional Public Prosecutor, Assam submits that the arguments ,so advanced from the side of prosecution, are not based on facts on record but on fiction instead. In that connection, he has stated that the testimonies, rendered by PW1, PW2 and PW6, unmistakably demonstrate that on the fateful night, the deceased and the accused took food in the house of PW1 and thereafter, they left the house of PW1 and came to their rented house. There is also evidence on record to show that early in the morning, next day, the deceased was found dead and she met her death on sustaining very many injuries, mainly inflicted by sharp weapon. 18. The evidence of Doctor reveals that the deceased died a homicidal death on or around 03.05.2010 and cut injuries on her body caused such death. Such evidence of Doctor when read together with the testimonies of PW1, PW2 and PW6, it would appear clear that the accused is the author of the crime in question. 19. There is evidence on record to show that the relationship between the parties were not cordial since before the incident in question since the accused (husband of the deceased) tortured her quite off and on. There is also evidence on record that the accused absconded immediately after the incident. Such circumstances of quite incriminating in nature also lend more and more credence to the prosecution case. 20. The accused person set up the plea of alibi stating that on the night in question, he was not in his house but somewhere else. There is also evidence on record that the accused absconded immediately after the incident. Such circumstances of quite incriminating in nature also lend more and more credence to the prosecution case. 20. The accused person set up the plea of alibi stating that on the night in question, he was not in his house but somewhere else. But in order to bring home his plea of alibi, he did not disclose where he was on the night in question or immediately before the incident under consideration. Therefore, his plea of alibi fails and such failed plea of alibi, coupled with circumstances, detailed herein above, according to learned Addl. PP, firmly establish that the accused had killed his wife on the night of 03.05.2010 subjecting her to brutal assault. He therefore submits this court to dismiss the appeal confirming the judgment of the trial Court. 21. We have considered the rival submission, having regard to the judgment under challenged and the evidence on record. Dr. Ranjit Kumar Hazarika, who conducted autopsy on the body of the deceased, was examined as PW7. His evidence reveals that the deceased died due to shock and hemorrhage as a result of injury which were ante-mortem in nature. His evidence also reveals that the deceased died on or around 03.05.2010. 22. So situated, let us see, if the accused is the author of the crime aforementioned. In that connection, we have gone through the evidence on record and we have found that the learned Trial Court had properly reproduced the evidence on record in its judgment under challenge. In order to appreciate the evidence on record, we also find it necessary to re-reproduce such evidence in our judgment as well and the same is done in the following manner: “7. PW. 1, Md. Sayad Ali in his evidence stated that accused Rasidul Islam married his daughter Aklima Khatun about one year prior to the date of occurrence. Occurrence took place about 5/6 months back. Accused and his daughter were leaving in a rented house at Bihubor. He stated that on the previous night of the occurrence, accused Rasidul Islam and his daughter Aklima took their meal at night in their (PW1) rented house and at about 9/10 P.M. they returned back. Occurrence took place about 5/6 months back. Accused and his daughter were leaving in a rented house at Bihubor. He stated that on the previous night of the occurrence, accused Rasidul Islam and his daughter Aklima took their meal at night in their (PW1) rented house and at about 9/10 P.M. they returned back. On the date of occurrence morning, Muklima Begum, aged about 8/9 years, the daughter of P.W. 1 went to call Aklima Khatun from her rented house. After going there, she saw the dead body of Aklima was lying on her bed with bleeding. She raised hue and cry and ran back to the house. Then they went there and saw the dead body of Aklima. He lodged the Ejahar. He is a witness to the inquest on the dead body of Aklima. He saw cut injuries on her neck and on face by pointed weapon. 8. PW.2 Mrs. Hazara Khatoon in her evidence stated that accused Rasidul Islam is the husband of her daughter deceased Aklima Khatun. Aklima was staying in their (PW2) house about one week prior to the date of occurrence. She was reluctant to go to the rented house of her husband for some reason. Her husband came and took her to his rented house after taking meal at night. On the next day, her younger daughter Muklima went to the house of Rasidul to call them for tea. After going there, Muklima saw the dead body of Aklima was lying on the bed with the neck cut. She raised hue and cry. Then they went there and saw the occurrence. At that time her son-in-law had fled away. 9. PW.3 Sri Ankur Barman, PW4, Sri Ajijur Rahma, PW.5 Musstt. Sahara Begum, PW8 Smt. Rusena Begum, PW.9 Nagendra Singh, PW.10 Smt. Bobita Dutta and PW11 Sri Aljan Ali in their evidence have not stated anything against the accused for commission of any offence. 10. P.W.6 Miss. Mukhima Begum in her evidence stated that accused Rasidul Islam is her brother-in-law and deceased Aklima is her sister. She stated that accused committed murder of her sister Aklima. One day morning her mother asked her to call Aklima for taking tea. She went to the house of Aklima and saw the dead body of her sister Aklima with neck cut. She raised hue and cry. Her mother and others reached there. She stated that accused committed murder of her sister Aklima. One day morning her mother asked her to call Aklima for taking tea. She went to the house of Aklima and saw the dead body of her sister Aklima with neck cut. She raised hue and cry. Her mother and others reached there. At that time, her brother-in-law was not in the house. He was caught by public after 3 weeks of the occurrence and handed over to police. 12. PW.12, Md. Gazi Khan in his evidence stated that accused Rasidul Islam stated at Bihubor P.S. in his presence that on the date of occurrence there was quarrel with his wife. His wife assaulted him and on that he committed murder of his wife by cutting her. 13. PW.13 Md. Bhaijan Ali in his evidence stated that he saw accused at Bihubor P.S. There, on police interrogation, accused Rasidul Islam stated that he committed murder of his wife. 14. PW. 14 Sri Parama Bora in his evidence stated that on 04.05.2010 he wrote Ext. 2 Ejahar as per the saying of Sayad Ali Ext. 2(1) is his signature as writer. 15. PW.15 Sri Mantu Ram Bora in his evidence stated that on 04.05.2010 he was at Bihubor P.S. as Officer-in-charge. On that day Sayad Ali lodged one Ejahar which was registered as Bihubor P.S. Case No. 23/10 under Section 302 of IPC and he started investigation of the case Ext. 2 is the Ejahar and Ext. 2(2) is his signature. He went to the place of occurrence at Bihubor Quarry No. 3 and found the dead body of Aklima Khatun in injuries in the rented house of accused Rasidul Islam. Inquest on the dead body was done by Executive Magistrate Sri Susanta Kr. Dutta in his presence Ext. 3 is the inquest report and Ext. 3(1) is the signature of Sri Susanta Kr. Dutta, signed in his presence. He drew the Sketch Map of the place of occurrence which is Ext. 4. Post Mortem on the dead body was done at Sivasagar Civil Hospital. Accused Rasidul Islam was arrested. Accused confessed his guilt and stated that he threw the weapon of offence at Bihubor river which was used in the commission of the crime. He stated that he could not recover the weapon of offence. 4. Post Mortem on the dead body was done at Sivasagar Civil Hospital. Accused Rasidul Islam was arrested. Accused confessed his guilt and stated that he threw the weapon of offence at Bihubor river which was used in the commission of the crime. He stated that he could not recover the weapon of offence. After completion of the investigation of the case, he submitted charge sheet against the accused under Section 302 of IPC Ext. 5 is the Charge Sheet.” 23. We have considered the evidence on record and found that PW1, PW2 and PW6 are the star prosecution witnesses. Though they were cross examined, nothing did emerge there-from to show that those witnesses cannot be relied on for any reason whatsoever. A careful reading of their evidence reveals that on the night in question, the accused and the deceased took dinner in the house of PW1 and thereafter, left the house of PW1, came to their rented house which is situated at a place not far away from the house of PW1. 24. Their evidence further reveals that on the following morning, when on being requested by her parents, PW6 went to the rented house of the accused and the deceased to request them to come over to their house to take tea, PW6 (daughter of PW1) found the deceased lying dead in a pool of blood by sustaining several injuries on her person. It is also found evident from their evidence that the accused was not in his rented house at that point of time. 25. The evidence of PW1, PW2 and PW6 together with the sketch map (Ext. 4) reveals that the rented house of the deceased and the accused is situated at a place very close to the house of PW 1. Those revelations firmly establish that on the fateful night, the accused had killed his wife having assaulted her, presumably by sharp object. 26. The evidence on record establishes that the relationship between the accused and the deceased was far from cordial, requiring the deceased to take shelter in her parental house quite off and on. There is also evidence on record to show that the accused went undergone soon after the incident in question. 26. The evidence on record establishes that the relationship between the accused and the deceased was far from cordial, requiring the deceased to take shelter in her parental house quite off and on. There is also evidence on record to show that the accused went undergone soon after the incident in question. Such evidence of enormously incriminating nature lends more and more credence to the claim of prosecution that on the night in question the accused, and none else, had killed his wife. 27. One may note here that there is nothing on record to show that any person other than the accused had any opportunity to kill the deceased or had any reason to harm her. This again shows that it is the accused, and none else, who was the person responsible for killing his wife in his rented house on the night of 03.05.2010. 28. One may note here that accused set up the plea of alibi that on the fateful night he was not in his house but elsewhere in connection with his livelihood. There is absolutely nothing on record to show where he was on the night in question meaning thereby that his plea of alibi fails. Unfortunately, such a failed plea of alibi comes heavily on the plea of the accused person that he is innocent. 29. In view of the above, it is found that all the pleas, set up by the accused/appellant in this appeal are without any foundation whatsoever and therefore, all those pleas are liable to be rejected, being found not based on facts but on conjectures and surmises. 30. In view of the above discussion, we are of the opinion that prosecution has successfully proved the charge under Section 302 IPC against the accused person beyond all reasonable doubt and as such, learned Trial Court has rightly convicted him under the aforesaid Provisions of law and had rightly sentenced to punishment as aforesaid. 31. Consequently, this appeal lacks merit and the same is accordingly dismissed. 32. Return the LCR. 33. We deeply appreciate the assistance rendered by Ms. R D Mozumdar, learned Amicus Curiae. We, therefore, direct the State to pay her Rs. 7000/- (Rupees Seven Thousand) as being her professional fees within a period of 3 (three) months from the date of receipt of the certified copy of this judgment.