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2015 DIGILAW 783 (GAU)

Anoi Mia v. State of Assam

2015-06-19

MICHAEL ZOTHANKHUMA, SAIKIA

body2015
P.K. Saikia, J 1. This appeal is directed against the judgment dated 10.1.2012, passed by learned Sessions Judge (FTC), Cachar, Silchar in Session Case No. 17 of 2010 convicting one Anoi Mia of offence under section 302/309, IPC and sentencing him to imprisonment for life and to pay fine of Rs. 5,000, in default, to suffer R.I. for another 6 months for the offence under section 302, IPC and also sentencing him to SI for another 6 months under section 309, IPC. 2. Being aggrieved by and dis-satisfied with the judgment aforesaid, the appellant, Anoi Mia ('the accused person'), preferred this appeal from jail alleging several infirmities in the judgment under challenge. 3. We have heard Ms. A. Sarma, learned amicus curiae appearing for the appellant and Ms. S. Jahan, learned Addl. P.P. appearing for the State. 4. The case projected by prosecution in the FIR dated 30.5.2001 and in subsequent trial, in short, is that on 20.5.2001 at about 7 pm, accused killed his wife Fulerun Nessa and also his minor son Faruk Hussain by inflicting blows on them with a dao. It is also alleged that after committing the crime, the accused also tried to commit suicide by inflicting cut wounds on his own stomach. An FIR to that effect, on being lodged with O/C, Udharbond Police Station on 03.5.2001 by one Kedar Ali (PW1), police registered a case vide Udharbond P.S. Case No. 90 of 2011 under section 302, IPC and ordered one Sishuram Saikia, SI of Police to investigate the case. 5. Being so entrusted, Sri Saikia embarked upon the investigation, visited the place of occurrence, caused an inquest to be done on dead bodies, sent the same to hospital for post mortem examination, arrested the accused person, examined the witnesses, well acquainted with the facts and circumstances of the case, 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 face trial. 6. The Magistrate, before whom the 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, the learned Sessions Judge, Silchar transferred the case to the file of learned Addl. Sessions Judge (FTC), Silchar for disposal in accordance with law. 7. On receipt of the case on commitment, the learned Sessions Judge, Silchar transferred the case to the file of learned Addl. Sessions Judge (FTC), Silchar for disposal in accordance with law. 7. On receipt of the case on transfer and on hearing the learned counsel for the parties, learned Addl. Sessions Judge (FTC) framed charge under section 302, IPC against the accused person and the charge, so framed, on being read over and explained to the accused person, he pleaded not guilty and claimed to be tried. 8. During the course of trial, the prosecution had examined as many as 11 witnesses including informant, Medical Officer, who conducted autopsy and the I/O of the case. The statement of the accused person was recorded under section 313, Cr.PC. The plea of the accused was that since he was not in his sense when the incident occurred, he did not know how his wife and his son were killed and how he got injured. He, however, on being required, declined to adduce any evidence in support of his plea of innocence. 9. On conclusion of trial and on hearing the learned counsel for the parties, the court below was pleased to convict the accused of offence under section 302, IPC and sentenced him to punishment as aforesaid. 10. Ms. A. Sarma, learned amicus curiae for the appellant submits that the judgment in question cannot be sustained since there is no evidence on record to show that on the fateful evening, the accused had killed his wife and his minor son and after having killed them, he tried to commit suicide by inflicting cut wounds on his stomach. 11. Rather there is evidence on record in the form of testimony of PW8 to show that when he approached the house of the accused person on hearing the hue and cry there-from, he found some persons running away from the side of the house of the accused person and when confronted by PW8, one of them inflicted a blow on her with a sharp weapon. This only shows that some persons other than the accused person might have killed the wife of the accused and her son and also inflicted severe wound on the person of the accused person as well. This only shows that some persons other than the accused person might have killed the wife of the accused and her son and also inflicted severe wound on the person of the accused person as well. However, such important aspect of the prosecution case was not considered by the learned trial court while holding the accused person guilty of offence he was charged with. 12. It has also been stated that there was hue and cry in the house of the accused person as the incident was going on which is evident from the testimonies tendered by some of the prosecution witnesses. This only shows that somebody assaulted the accused, his wife and their son on the night aforementioned. Therefore, the charges against the accused person cannot be said to have been proved beyond all reasonable doubt. 13. It is also the case of the prosecution that prime prosecution witnesses, PW1, PW8 and PW9 turned hostile to the prosecution. As the witnesses on whom prosecution placed enormous reliance turned hostile, it needs to be concluded that the very basis of the prosecution case gets shattered and, therefore, the prosecution case should have been overthrown by the court below on that count alone. However, the learned trial court chose to convict the accused person of offences under section 302/309, IPC based on evidence of those tainted witnesses which is not permissible under the law. 14. It is also alleged that though one dao (machete) is said to be seized by the I/O during the course of investigation allegedly from the house of the accused person; yet, such seizure has not been proved in accordance with the requirements of law. Such failure on the part of the prosecution raises a serious doubt about the veracity of the entire prosecution case. 15. Even assuming for the sake of argument that a dao was seized by the I/O from the house of accused person on 31.5.2001; yet, such seizure will no way help the prosecution case since there is absolutely nothing on record to show that the dao so seized was the dao used in committing the crime in question. On all those counts, the learned amicus curiae submits that this court should acquit the accused person of offences under section 302/309, IPC by setting aside the judgment under challenge. 16. The learned Addl. Public Prosecutor, Ms. On all those counts, the learned amicus curiae submits that this court should acquit the accused person of offences under section 302/309, IPC by setting aside the judgment under challenge. 16. The learned Addl. Public Prosecutor, Ms. S. Jahan, however, disputing the submissions advanced from the side of the prosecution contends that the evidence on record very firmly and convincingly establishes that the person who killed the wife of the accused and their son on the night in question, was none other than the accused person. The evidence on record also establishes that after killing his wife and minor son, the accused also tried to commit suicide by inflicting dao blow on his stomach. 17. In that connection, the prosecution has heavily relied on the testimonies of PW6, Kuti Mia, and PW7, Aftab Uddin Laskar, whose evidence unmistakably demonstrates that the accused subjected his wife to brutal assault all the time forcing her to abandon her matrimonial house and to take shelter in her parents' house. There is also evidence to show that on the date of the incident, the accused took her back to his house promising that he would not subject her to torture anymore. 18. It is also the case of learned Addl. P.P. that there is evidence on record to show that during the material time, the household in question was under the occupation of accused, his wife and their minor son. There is nothing on record to show that the house was occupied by any other person on the evening aforementioned. This is strongly suggestive of the fact that the accused had killed his wife and their minor son as well. 19. In that context, it has been stated that if a third party or parties intruded into the house of the accused person on the eventful evening then there might have been huge hullaballoo and in that event, it would have attracted the attention of neighbouring people since the household in question is situated in a very thickly populated area. In that event, the miscreants could have been apprehended by the people living near the P.O. But there is absolutely nothing on record to show that such an incident took place in such a household/neighbourhood on the evening aforementioned. 20. All the incriminating circumstances were brought to the notice of the accused person seeking his explanation thereto. In that event, the miscreants could have been apprehended by the people living near the P.O. But there is absolutely nothing on record to show that such an incident took place in such a household/neighbourhood on the evening aforementioned. 20. All the incriminating circumstances were brought to the notice of the accused person seeking his explanation thereto. There is evidence on record to show that though the victim sustained injuries on the night in question, still he had full control of his sense. However, when the incriminating circumstances were brought to his notice, he chose to say that he was senseless, and as such, he did not know what had happened to his wife and son and how he got injured on the night aforesaid. However, his plea that he lost his consciousness when the incident took place is found to be totally false in view of evidence on record. 21. According to learned Addl. Public Prosecutor when all those things are considered together, it would appear more than clear that the prosecution has proved the charges under section 302/309, IPC and, therefore, the learned trial court has rightly convicted the accused/ appellant under the aforesaid provision of law and sentenced him to punishment as stated above. 22. We have considered the rival submissions, having regard to the judgment under challenge and the evidence on record. 23. Before we proceed further, we find it necessary to have a look at the evidence of the Doctor who conducted autopsy on the body of the deceased. He was Dr. Gunajit Das and was examined as PW4. According to him, on 21.5.2005, he was posted as Demonstrator in the Department of Forensic Medicine, Silchar Medical College & Hospital. On that day, he conducted post mortem examination on the body of one Fulerun Nessa and found the following : The deceased Fulerun Nessa was wearing saree, a blouse and a peticoat, built was average and swarthy complexion, rigor motis was present all over the body. Wearing garments were found stained with blood. Midline surgical scar was present in the lower abdoment. Blood stain was also present over the face. Injuries - (1) Incised injury over the upper part of left side of the neck with gaping 7 x 2 cm., cutting the muscles and vessels and exposing the vertrebra column. Injury was horizontally placed and margine were clean out. Midline surgical scar was present in the lower abdoment. Blood stain was also present over the face. Injuries - (1) Incised injury over the upper part of left side of the neck with gaping 7 x 2 cm., cutting the muscles and vessels and exposing the vertrebra column. Injury was horizontally placed and margine were clean out. (2) Incised injury over the left hand over ulna border in the middle part of the palm cutting of the structures and extended upto the second metacarpal. (3) Incised injury of the left foot in the middle part of lateral border cutting of structure (whole thickness) upto 2nd metacarpal ante-mortem blood clot found firmly adherent to the old margins. (4) Incised injury over left mastoid area with depth upto scalp 3x1 c.m. incised. (5) Incised injury over proximal part of left palm with depth upto skin only 6 x-5 c.m. Ante mortem blood clot was found firmly adherent to the margins of the injuries. (6) There was no ligature mark in the neck and no dislocation. Tissues found healthy. On examination of the cranium scalp found healthy except injury No. 5. All visceral organs found healthy and pale. Rest of the organds found healthy. 23A. On the same day, he also examined the body of one Faruk Hussain, aged about 1 year and found the following : The deceased baby was found wearing a ganjee and a thread with a tabiz in the neck as well as in the waist, built was average in relation to the reported age, complexion was swarthy, blood stain over the cloth and upper half of the body. Injuries : (1) Bruise (bluish in colour) over left zygoma and middle of right chick 2 x 2 c.m. And 1x1 c.m. (2) Incised injury over the interior part of the head 10 x 2 c.m. In coronal palm cutting the scalp and underline bone with depth of the wound up to the cranial cavity. Brain substance was exposed through the wound margins found clean-cut. (3) Subarachnoid space found filled with blood. (4) Intracerebral haemorrhage present. Visceral organs found healthy and pale. Rest of the organs and the parts of the body found healthy. All injuries sustained were ante-mortem. 24. Brain substance was exposed through the wound margins found clean-cut. (3) Subarachnoid space found filled with blood. (4) Intracerebral haemorrhage present. Visceral organs found healthy and pale. Rest of the organs and the parts of the body found healthy. All injuries sustained were ante-mortem. 24. The evidence of the Doctor which was not seriously disputed by the defence reveals that both the persons aforesaid died a homicidal death on sustaining ante mortem wounds on their persons. So situated, let us consider the evidence of other witnesses. 25. PW6, Md. Kuti Mia is the uncle of the wife of the accused. According to him, one day he received a telephonic message from his nephew Aftab Uddin (PW7) that the accused had killed his wife. On getting such an information, he and PW7 ran to the house of the accused and found that nobody was there. They also came to know that bodies of the wife of the accused and his son had already been taken by police for taking necessary action and the accused was also arrested in the meantime. 26. PW6 further states that about 15 to 16 days prior to the occurrence, his niece Fularun Nessa came to his house and requested him to allow her to go to his house since she was not in a position to live with the accused person inasmuch as, the accused kept on quarrelling with her and subjected her to brutal assault. She also expressed her desire not to return to the house of accused person and wanted to stay in the house of PW6 since she had lost her father long ago. 27. However, one day, the accused along with some persons came to his house and requested him to allow the accused to take his wife back to his house promising that he would not subject them to any kind of torture in future. Unfortunately, on that evening itself, the accused reportedly killed his wife and son. 28. In his evidence, PW7 states that on the next day of the incident, he got information about his sister and his nephew being killed by the accused person. He got such information from one Rubul Laskar over phone. He immediately reported the matter to his family members including his uncle Kuti Mia (PW6). 28. In his evidence, PW7 states that on the next day of the incident, he got information about his sister and his nephew being killed by the accused person. He got such information from one Rubul Laskar over phone. He immediately reported the matter to his family members including his uncle Kuti Mia (PW6). Thereafter, he along with PW6 went to the house of the accused person but they did not find the accused and the deceased in their house. They came to know that the bodies of the deceased had already been taken by police. He also learnt that accused had been taken into custody by police. 29. PW1, Kedar Ali (informant) deposed that one day when he was returning home after completing his duty for the day, being a rickshaw puller, he heard from one Kulu Mia (PW6) that wife of Fulurun Nessa and her minor son were killed. On getting such information, he went to the house of accused person and found the wife of the accused and her son lying dead in their courtyard. He also found accused lying in his own house in an injured condition. In that connection, he lodged an FIR which he proved as Ext. 1. 30. On being so informed, police came and held inquest on the dead bodies. The reports prepared in that connection were proved as Exts. 2 and 3. He also states that police seized 2 daos and one dragger on the strength of seizure list, Ext. 4. He was declared hostile since he refused to support his statement given to police that the accused killed his wife and son and also tried to kill himself by inflicting cut wounds on his stomach. 31. PW8, Romola Begum, a housewife also deposed that on the day of the incident at about 7 p.m., she heard hue and cry coming from the house of accused Anoi Mia. Thereafter, she came out of her house and while proceeding to the house of Anoi Mia, she noticed 4/5 persons coming from the house of the accused person, one of them gave her (PW7) a blow with a sharp weapon. She, however, could not recognize those persons due to darkness. She was also declared hostile since she did not back her claim given to the police that the accused had killed his wife and son on the night in question. 32. She, however, could not recognize those persons due to darkness. She was also declared hostile since she did not back her claim given to the police that the accused had killed his wife and son on the night in question. 32. PW9, Tairun Nessa also a housewife, deposed that on the fateful evening, she heard hue and cry coming out from the house of the accused person. On hearing such hue and cry, she reached the house of the accused person and on her arrival at the house of the accused person, she saw accused person in an injured condition. PW1, PW8 and PW9 were declared hostile since they did not fully back their statements in the court, which they had given to the police. 33. PW2, Mayajul Haque Barbhuiya, a cultivator by profession, deposed that on the fateful evening at about 6 to 7 p.m., he heard hue and cry coming from the house of the accused person. He saw Jallal Uddin running towards the south-western side of the house of the accused person. As he arrived at the place of occurrence, he saw Fularun Nessa and her son lying dead in their courtyard. 34. PW2 also found the accused in a seriously injured condition. Police was informed and police conducted inquest on the dead bodies and in that connection, prepared reports which he proved as Exts. 2 and 3. Police also seized 2 daos and a dragger on the strength of seizure list Ext. 4. In his cross-examination, he stated that since the stomach of the accused came out of the belly, people gathered at the P.O., tried to put it inside the belly by tying a gamocha around the belly of the accused person. 35. PW3 is Kalu Mia. According to him, he went to the P.O. hearing hue and cry and found that accused had killed his wife, son and also tried to kill himself by inflicting cut wounds on his belly. During the course of investigation, police seized two daos and one dragger on the strength of seizure list, Ext. 4. In his cross-examination, he admitted that he did not witness the incident in question. 36. PW5 Sri Kalamdhar All Mazumder who is a cultivator deposed that on the fateful evening at about 6 to 7 p.m. he was coming out of his house and was proceeding to a shop nearby. 4. In his cross-examination, he admitted that he did not witness the incident in question. 36. PW5 Sri Kalamdhar All Mazumder who is a cultivator deposed that on the fateful evening at about 6 to 7 p.m. he was coming out of his house and was proceeding to a shop nearby. However, while proceeding to the shop, he heard hue and cry from the house of accused person. He immediately went there and found the wife of the accused and her son lying dead in their courtyard. He also found the accused in an injured condition. By that time, a large number of people had gathered there. 37. He heard that the deceased died since they were assaulted by the accused person following a quarrel with him. During investigation, police seized 2 daos and a dragger stained with blood from the house of the accused person on the strength of seizure list, Ext. 4. In his cross-examination, he admitted that his house is at a distance of half a km from the P.O. But he could not remember the person who told him that the accused had killed his wife and her minor son while quarrelling with him. 38. PW10, Faziur Rahman Laskar deposed that he heard from the people that accused had killed his wife and son. However, he came to the place of occurrence next day in the morning. PW11, Sri Shisuram Saikia, a retired police officer, deposed that on 10.5.2001, he was attached to Udharbond Police Station. On that day, on receiving the FIR from Kedar Ali, the then O/C, Udharbond Police Station registered a case and entrusted him with the duty of investigating the case. 39. Accordingly, he (PW10) visited the P.O., conducted inquest on the dead bodies, sent the dead bodies to hospital for post mortem examination, examined the witnesses and seized 2 daos and one dagger on the strength of the seizure list, Ext. 4. The inquest reports he prepared in respect of wife and son of the deceased were also proved as Ext. 2 and Ext. 3. In his cross-examination, he stated that before receiving the FIR, he did not receive any information. 40. Above being the evidence on record, let us see how far the evidence makes out the charges levelled against the accused person. 2 and Ext. 3. In his cross-examination, he stated that before receiving the FIR, he did not receive any information. 40. Above being the evidence on record, let us see how far the evidence makes out the charges levelled against the accused person. We have also found that the deceased died a homicidal death on sustaining cut injuries on their persons. The same has not been disputed by the accused person. A careful perusal of evidence of PW6 and PW7, more particularly PW6 reveals that the accused subjected his wife to brutal torture for which she was compelled to withdraw from the society of the accused and took shelter in the house of her uncle only 15/16 days prior to the incident in question. 41. His (PW6) evidence also reveals that on the fateful day in the morning, accused along with others came to the house of PW6 and requested PW6 to allow him to take his wife and their minor son to his house on promising that he would not subject his wife to torture anymore. On that very day, in the evening, the wife of the accused and his son were, however, killed and that too, in the house of the accused person itself. We have found that the house of the accused on the eventful day was a occupied by the deceased, wife and his son. 42. It is also found evident from the record that the house of the accused is situated at a place surrounded by many households. The evidence of the witnesses again reveals that although the wife of the accused and his son got killed and although he reportedly sustained injuries on his b abdomen on the night of 30.5.2001, the accused did not report the matter to police alleging that the crime in question was committed by a third party in his house. 43. Quite contrary to it, the incident in question was reported to police only on the next day by one Kedar Ali, but in the FIR it has been alleged c that the accused killed his wife and son and thereafter, he himself also tried to commit suicide by planting deep cut wounds on his belly. 43. Quite contrary to it, the incident in question was reported to police only on the next day by one Kedar Ali, but in the FIR it has been alleged c that the accused killed his wife and son and thereafter, he himself also tried to commit suicide by planting deep cut wounds on his belly. It is also evident from the evidence of the IO that on 31.5.2001, police seized (2) two daos and one blood stained dragger from the house of the accused person on the strength of seizure list, Ext. 4. Such evidence has d been corroborated by the PWs, more particularly PW1, PW2, PW3 and PW5 as well as the averments made in Ext. 4. 44. It may be noticed here that the case under consideration is basically based on circumstantial evidence. It is a settled law that in a case, based on circumstantial evidence, the prosecution is to prove a chain of e circumstances unbreakable anywhere leading to a sole and lone conclusion that accused and none else is the author of the crime in question. In that connection, one can profitably peruse the decision of the hon'ble Apex Court in the case of Gambhir v. State of Maharashtra, (1982) 2 SCC 351 . "9. It has already been pointed out that there is no direct evidence of eye witness in this case and the case is based only on circumstantial evidence. The law regarding circumstantial evidence is well-settled. When a case rests upon the circumstantial evidence, such evidence must satisfy three tests: (1) the circumstances from which an inference of guilt is sought to be drawn, g must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) 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." i 45. Our forgoing discussion has now established the following circumstances -- (1) the wife of the accused and his son died a homicidal death on 30.5.2001, (2) such death was caused by injuries on their bodies which were inflicted by sharp object, (3) the accused too sustained injuries on his belly being inflicted by sharp object, (4) the accused subjected his wife to brutal torture even before the incident forcing her to abandon the matrimonial house and to take shelter in the house of PW6, her uncle. 46. Some other circumstances which are established by the prosecution are - (i) on the fateful evening the accused and some persons took the victims from the household of PW6 promising that he would not subject his wife to assault anymore, (ii) however, on the same day at night, the son and wife of the accused were brutally killed and that too in the house of the accused person, (iii) the accused did not lodge any case alleging any miscreants killing his wife and son inflicting injuries on their persons and (iv) the house of the accused is found situated in a thickly populated area. 47. Some other circumstances of extremely incriminating nature are (i) on the next day, PW1 lodged an Ejahar alleging that the accused killed his wife and son and also tried to kill himself by inflicting cut injuries on his belly (ii) there is no convincing evidence on record to show that the house of the accused was raided by any miscreant on the night in question and (iii) on the next day of the incident, police seized 2 daos and one dragger stained with blood from the house of the accused person. 48. The above circumstances when read together lead us to a conclusion that on the fateful evening, the accused killed his wife, own son and also tried to kill himself. We have found that all the incriminating circumstances were brought to the notice of the accused person. He tried to explain those incriminating circumstances stating that on the fateful night he was in a senseless condition and as such, he did not know how his wife and son met their death and how he himself got injured. We have found that all the incriminating circumstances were brought to the notice of the accused person. He tried to explain those incriminating circumstances stating that on the fateful night he was in a senseless condition and as such, he did not know how his wife and son met their death and how he himself got injured. However, such explanation, in view of our forgoing discussion, is found to be a blatant lie which strongly suggests that the accused killed his wife and son and also tried to kill himself. 49. We have found that the accused in his statement under section 313, Cr.PC claims that on the fateful night he became senseless sustaining injury on his person and as such, he could not say how his wife and son got killed on that night. However, there is evidence on record to show that he was in full sense when people arrived at the place of occurrence. Thus, his claim that he was in a senseless condition after the incident in question for which he was not in a position to know how his wife and son were killed and how he got injured cannot be accepted without a pinch of salt. False explanation by the accused/appellant provides the missing link, if any, in the prosecution case. In that connection, one can profitably peruse the decision of the hon'ble Apex Court in the case of State of Maharastm v. Suresh, (2000) 1 SCC 471 . The relevant part of the judgment is reproduced below : "27. In a case based on circumstantial evidence where no eye witness account a is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete." , 50. We have found that the prosecution case has been assailed on other counts as well. However, our forgoing discussion reveals that there is indisputable evidence on record to show that accused had killed his wife and son and thereafter, tried to kill himself by planting blows with sharp weapon on his belly. We have found that the prosecution case has been assailed on other counts as well. However, our forgoing discussion reveals that there is indisputable evidence on record to show that accused had killed his wife and son and thereafter, tried to kill himself by planting blows with sharp weapon on his belly. Being so, all the allegations against the c prosecution case is found to be without any substance. 51. We have found that people who arrived at the P.O. sometime after the incident heard that the accused was the person who killed his wife and son and also inflicted injuries on his belly in an effort to kill himself. Such evidence, in our opinion, are admissible in law under section 6 of d the Evidence Act which also lends more and more support to the prosecution case. 52. In view of what we have discussed hereinbefore and what have emerged therefrom, we are of the opinion that the prosecution has proved the allegation against the accused person beyond all reasonable doubt and as such, the learned trial court has rightly convicted the accused of offence under section 302/309, IPC and punished him accordingly. 53. In the result, this appeal is found devoid of merit and the same is accordingly dismissed. 54. We deeply appreciate the valuable assistance rendered by Ms. A. Sarma, learned amicus curiae in disposing the present appeal. We direct the State Legal Service Authority to pay Rs. 7,000 as being her professional fees within a period of 3 months from the date of receipt of a certified g copy of this judgment. 55. Return the LCR.