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2015 DIGILAW 990 (CAL)

Abu Hossain Gain v. State of West Bengal

2015-12-23

INDIRA BANERJEE, TAPASH MOOKHERJEE

body2015
JUDGMENT : Indira Banerjee, J. This appeal is against a judgement and order of sentence dated 8th April, 2010 passed by the Court of the Additional District and Sessions Judge, Fast Track Court No.3, Basirhat, North 24 Parganas, whereby the accused appellant has been held guilty and convicted of murder under Section 302 of the Indian Penal Code and an Order of sentence whereby the accused appellant has been sentenced to suffer imprisonment for life and to pay fine of Rs.10,000/- in default whereof he is to suffer further simple imprisonment for one year. 2. The de facto complainant lodged a complaint in writing, dated 23.06.2006, in the Minakhan Police Station, which was treated as FIR, alleging that his younger sister Rehana Khatoon, hereinafter referred to as the deceased, who had got married to the accused appellant on 19th April, 2006, at about 20 years of age, was found dead and that the accused appellant had confessed to his guilt of having killed the deceased inter alia in the presence of a lot of villagers. 3. It is the case of the prosecution, that the deceased had come to the house of the de facto complainant, being her parental home, after her mother had met with an accident on 5th June, 2006. About 10 days later, the accused appellant also came to the house of the de facto complainant. There used to be frequent quarrels between the accused appellant and the deceased. On 23rd June, 2006, at noon at about 1 p.m., an altercation took place between the accused and the deceased, while they were having lunch, after which they went into the one of the two rooms in the house to rest. The altercation however continued even after they entered the room. 4. According to the de facto complainant, the de facto complainant went into the other room and fell asleep. At about 3 p.m. the accused appellant came out of the room, bolted the room from outside and told the de facto complainant's wife that he was going home. 5. On seeing the room locked from outside, the mother of the deceased as well as the de facto complainant, called out to the deceased, being her daughter, but got on reply, whereupon she opened the door to find the deceased, dead, hanging from one end of a sari, with her knees bent as though she was kneeling. 5. On seeing the room locked from outside, the mother of the deceased as well as the de facto complainant, called out to the deceased, being her daughter, but got on reply, whereupon she opened the door to find the deceased, dead, hanging from one end of a sari, with her knees bent as though she was kneeling. On seeing her daughter dead she screamed and started crying loudly. The de facto complainant rushed to the room and seeing his sister dead, he too started crying. Hearing them cry, neighbours and people of the village gathered. The villagers caught the accused appellant who had just left and was still on the road, whereupon he allegedly confessed to have murdered his wife, the deceased, by strangulating her with the help of a sari and hanging her thereafter. 6. After the case was investigated by Minakhan Police Station, a charge sheet was submitted in the Court of the learned Additional Chief Judicial Magistrate, Basirhat. The learned Additional Chief Judicial Magistrate, Basirhat, was pleased to commit the case to the Court of the learned Additional District Judge, Basirhat and the learned Additional District Judge, Basirhat was pleased to transfer the case to the Court of the Additional and District Sessions Judge, Fast Tract Court No.3. 7. The prosecution examined about 13 witnesses. The de facto complainant, being the elder brother of the deceased, deposed as the 1st Prosecution Witness. This witness (PW 1) deposed that on the day of the incident, he was sleeping in his room, which was on the East. At about 3 p.m. he suddenly woke up on hearing his mother scream and rushed to the other room to find his sister dead, hanging from a sari, with her knees bent as if she was kneeling. On seeing this the de facto complainant (PW 1) also started crying. Hearing the PW 1 and his mother cry, villagers rushed to the place of occurrence. 8. PW 1 deposed that on the date of the incident, at about 1 p.m. there was an altercation between the accused appellant and the deceased and in course of such altercation the accused appellant had told the deceased "ami tomake maja dekacchi". PW 1 had also heard them fighting when they were inside the room, but he did not give the fight between husband and wife importance. PW 1 had also heard them fighting when they were inside the room, but he did not give the fight between husband and wife importance. This deponent deposed that at about 3 p.m. the accused appellant told this deponents wife that he was going home. Soon, thereafter PW 1's mother went to the room where the deceased was, and found her hanging. 9. The PW 1 further deposed that the accused appellant was stopped on the road by the villagers, who brought him back to the house of the PW 1, where, in the presence of co-villagers the accused appellant confessed to his guilt of murdering his wife. Thereafter this deponent (PW 1) along with others went to the Minakhan Police Station and lodged an FIR. 10. This deponent stated that the FIR was written by his cousin Amin Ali Gain as per his instruction. The FIR was read over to him and he put his signature thereon. He identified the FIR lodged by him, as also the inquest report prepared by the Executive Magistrate in his presence. 11. In cross-examination an attempt was made to shift the suspicion on the de facto complainant (PW 1) by suggesting that the de facto complainant had been trying to deprive his sister of her share in her parental property. PW 1 categorically denied the suggestion. 12. The mother of the deceased deposed as Prosecution Witness No.2. She deposed that her daughter had been given in marriage with the accused appellant about a year and eight months prior to the date on which she deposed in Court, that is, 7th February, 2008. She stated that some time in mid June-mid July the deceased and the accused appellant had both come to the house of the de facto complainant. After taking their meals at about 1 p.m. they had gone into the room to rest. At about 3 p.m. the accused appellant left the house after bolting the door of the room from outside. This deponent became suspicious on seeing the room bolted from outside. After opening the bolt she found her daughter dead with one end of sari tied to the ceiling and the other end tied around her neck. On seeing this she screamed and then became senseless. 13. In cross-examination the PW 2 stated that she resided with her younger son Gaffar. After opening the bolt she found her daughter dead with one end of sari tied to the ceiling and the other end tied around her neck. On seeing this she screamed and then became senseless. 13. In cross-examination the PW 2 stated that she resided with her younger son Gaffar. Her younger son slept in the room and she slept on the verandah. She stated that she had met with an accident about twenty days prior to the incident, as a result of which she had pain in her waist and leg. She could, however, walk somehow. She found her daughter hanging with her knees bent as if she was kneeling. On seeing this, she called her elder son's wife and thereafter became senseless. She could not remember what had happened thereafter and what she had stated to the police. 14. From the evidence of the Prosecution Witness No.2, (mother of the deceased) and Prosecution Witness No.1, (elder brother of the deceased), it transpires that the mother of the deceased lived in the house of her younger son, Gaffar, brother of the de facto complainant, who also deposed in Court. Gaffar's house was adjacent to the de facto complainant's house. 15. The 3rd Prosecution Witness, Sufia Bibi, wife of the de facto complainant, deposed that the accused appellant was her 'nandai' (husband's sister's husband). On the day of the incident the accused appellant and the deceased had gone into one of the rooms to rest. At around 3 p.m. the accused appellant bolted the door of the room, in which the accused appellant and the deceased had gone to rest, from outside and told her that he was going home. PW 3 deposed that she requested the accused appellant to wait till sunset, as it was sunny, but he insisted on going and he went out of the house. In the meanwhile her mother-in-law went to the room of the deceased, and found her dead, whereupon she started crying. Thereafter this deponent along with her husband rushed to the room and found the deceased dead. This deponent also deposed that the deceased was hanging from a sari with her knees bent as if she was kneeling. She deposed that the villagers caught the accused appellant, who was on the road and brought him to their home. Thereafter this deponent along with her husband rushed to the room and found the deceased dead. This deponent also deposed that the deceased was hanging from a sari with her knees bent as if she was kneeling. She deposed that the villagers caught the accused appellant, who was on the road and brought him to their home. On being asked the accused appellant confessed to his guilt in the presence of all those who were there. 16. In cross-examination this deponent (PW 3) stated that she had not seen the incident, and had also not heard the deceased shout. She asserted that the accused appellant had confessed to his guilt in the presence of co-villagers and she denied the suggestion that he had made the confession under compulsion. This witness also categorically denied the suggestion in cross-examination that Marufa, the wife of the younger brother of the de facto complainant, Gaffar, had been driven out. She categorically denied that the accused appellant had gone to the house of Gaffar's wife's parents to bring Gaffar's wife back. 17. The 4th Prosecution Witness, Sahabuddin Gain, is a cousin of the deceased, whose house is situated about two minutes away from the house of the de facto complainant. He deposed that on hearing cries he went to the house of the de facto complainant and found the deceased hanging with her neck tied with one part of a sari. He also deposed that the dead body was in kneeling position. He said that along with one Sajjat Mondal, he opened the noose from the neck of the deceased and tried to resuscitate her by giving her first aid, but found she was dead. He further deposed that the accused appellant had been caught red handed by the villagers near a mosque. He deposed that the accused appellant confessed his guilt in his presence and in the presence of numerous villagers. 18. This deponent deposed that by the time this deponent along with Sajjad Ali Mondal, opened the noose from the neck of the deceased, the accused appellant had been caught red-handed by the villagers near a mosque and brought to the house of the de facto complainant, where in the presence of villagers and in the presence of this deponent, he confessed to his guilt. 19. 19. The 5th Prosecution Witness, Gaffar Gayen also deposed that the deceased was his younger sister and the accused appellant was her husband. He stated that the deceased died on 8th Asar 1413 B.S. at about 3 p.m. in the house of the de facto complainant which is adjacent to his own house. 20. This deponent deposed that at the point of time when the incident took place, this deponent was sleeping in his room. This deponent said that he rushed to the place of occurrence on hearing the sound of people crying, and found his sister, that is, the deceased hanging in her room from a sari. One part of the sari was tied to the ceiling and the other part to her neck. This deponent also deposed that he saw the deceased hanging in a kneeling position. 21. According to this deponent on seeing his sister he started crying. Later the dead body was taken from the room where she was found hanging to the veranda by Sahabuddin and Sajjat. 22. After about 15 minutes, the accused appellant was apprehended by the Police. Later at about 8 p.m. the police came and removed the dead body. 23. In cross-examination, this witness asserted that he had seen his sister hanging. He denied the suggestion that his sister was on the veranda when he reached the spot. In cross-examination this witness stated that his wife Marufa, who was in her father's house, returned to her matrimonial home, on the date of the incident, after hearing of the incident. This deponent categorically denied that he had gone to his wife's parental home along with the accused appellant, to bring her back. This deponent also deposed that at about 3 p.m. the accused appellant was brought to the home of the de facto complainant. 24. The 6th Prosecution Witness, Sajjad Ali Mondal, deposed that his house was about 15 cubic feet away from the house of the de facto complainant. On hearing loud cries from the house of the de facto complainant, he went there and found the deceased, who was a sister-in-law, hanging in a kneeling position. One end of a sari was tied to the ceiling and the other end tied around her neck. The noose of the deceased was opened by him along with others and Gaffar Gayen and Sahabuddin got her from the room to the veranda. One end of a sari was tied to the ceiling and the other end tied around her neck. The noose of the deceased was opened by him along with others and Gaffar Gayen and Sahabuddin got her from the room to the veranda. He stated that by the time the dead body of the deceased was taken to the veranda the accused appellant had been caught by the villagers. This deponent was however not in a position to say what was the cause of the death. The villagers caught the accused appellant near a mosque and brought him back to the house of the de facto complainant. 25. The 7th Prosecution Witness, Latif Gayen, a neighbour also deposed that he knew the accused appellant who was present at the dock. He stated that the deceased had died about two years ago on 23rd June in the house of Barik Gayen. This deponent also deposed that on going to the house of the de facto complainant he found the deceased in a kneeling position in the room on the western side of the house of the de facto complainant. He also stated that one part of the sari was tied with the ceiling and the other around the neck of the deceased. At that time the de facto complainant, Sahabuddin, Sajjad, the wife of the de facto complainant and others were present at the place of occurrence. This deponent claims to have told Sahabuddin and Sajjad to open the noose from the neck of the deceased. This deponent also deposed that by the time the noose around the neck of the deceased was opened and the deceased was taken to the veranda the accused appellant had been caught and brought to the house of the de facto complainant. This deponent stated that on being asked the accused appellant confessed to his guilt stating that he had killed his wife by making a noose on her sari. This deponent stated that soon after he reached the place of occurrence about 100 villagers gathered there. The villagers brought the accused appellant to the house of the de facto complainant. He stated that the confessional statement of the accused appellant was not reduced in writing. He, however, denied the suggestion that the accused appellant had not confessed to have killed his wife. The villagers brought the accused appellant to the house of the de facto complainant. He stated that the confessional statement of the accused appellant was not reduced in writing. He, however, denied the suggestion that the accused appellant had not confessed to have killed his wife. He, however, denied personal knowledge of the marital relationship between the deceased and the accused appellant. He denied having told the police that the accused appellant had an extra-marital relationship. He stated that he had no personal knowledge of whether the accused appellant or the deceased had any extra-marital relationship. 26. The 8th Prosecution Witness, Saukat Ali Gayen said he had known the deceased as well as the accused appellant who was present in Court on the dock. He was apparently a witness to the seizure list and he identified his signature on the seizure list. What he stated in his deposition was, apparently based on hearsay. 27. The 9th Prosecution Witness, Amir Ali Gayen, another neighbour also deposed that he had been to the place of occurrence at about 3.30 P.M and found the deceased hanging in a kneeling position in one of the rooms of the house of the de facto complainant. He stated that he found one part of the sari was fixed to the ceiling and the other tied around the neck of the deceased. He stated that one person Latif Gayen asked Sajjat and Sahabuddin to open the noose from the beck of the deceased and after they opened the noose the dead body of the deceased was taken to the veranda. At that point of time about 100 people had gathered at the place of occurrence. The accused appellant had also been caught red-handed near a mosque in the village and brought to the house of the de facto complainant. On being asked the accused appellant confessed to his guilt in the presence of villagers and he admitted that he killed his wife. This deponent stated that he wrote the First Information Report (FIR) according to the instructions of the de facto complainant. He identified his signature on the FIR. 28. The 10th Prosecution Witness, Kader Gayen, a neigbour, was a signatory to the seizure list and he identified his signature on the seizure list. He stated that the wearing apparel of the deceased such as sari, blouse etc. was seized by the police. 29. He identified his signature on the FIR. 28. The 10th Prosecution Witness, Kader Gayen, a neigbour, was a signatory to the seizure list and he identified his signature on the seizure list. He stated that the wearing apparel of the deceased such as sari, blouse etc. was seized by the police. 29. The 11th Prosecution Witness, Bibhas Ranjan Khanra, Assistant Sub-Inspector of Police posted at Naihati G.R.P.S. stated that on 23rd June, 2006 he was posted at Minakhan Police Station as Duty Officer. He received the FIR from the de facto complainant and thereafter started Minakhan Police Station case No.83 dated 23/06/2006 against the accused appellant under Section 498A, 302 and 201 of the Indian Penal Code. He denied having any personal knowledge of the alleged incident. 30. The 12th Prosecution Witness was Dr. Parimal Roy, who conducted the post mortem examination over the dead body of the deceased. He stated that he had opined that the death was due to cardio respiratory failure as a result of strangulation. He identified the post mortem report written by him. 31. The 13th Prosecution Witness, Dhirendra Nath Bhattacharjee, Retired Sub-Inspector of Police who had been posed in Minakhan Police Station on the date of the incident and had investigated into the case. 32. It is true as argued by Mr. Tarapada Das that there were no eyewitnesses to the incident. However, direct evidence of an eyewitness is not essential for conviction for murder. 33. Some of the witnesses who deposed on behalf of the prosecution, namely Prosecution Witness Nos. 1, 2, 3 and 5 were interested witnesses in the sense they were closely related to the deceased. It is, however, well-settled that testimony of witnesses cannot be discarded only because they are relatives. Moreover, non-related witnesses including neighbours have corroborated the evidence of related witnesses. There is also nothing on record to suggest any reason for the related witnesses to falsely implicate the accused appellant. 34. It is also well-settled that conviction may be based on extra-judicial confession, if proved to be voluntary and truthful. There could be no dispute with the proposition laid down by the Single Bench of Orissa High Court (Dipak Misra, J.) in Ghasiram Lakra v. State of Orissa reported in 1997 Cr.L.J. 939. The judgment is, however, clearly distinguishable on facts. The Court should be extremely careful before basing conviction on extra-judicial confession. There could be no dispute with the proposition laid down by the Single Bench of Orissa High Court (Dipak Misra, J.) in Ghasiram Lakra v. State of Orissa reported in 1997 Cr.L.J. 939. The judgment is, however, clearly distinguishable on facts. The Court should be extremely careful before basing conviction on extra-judicial confession. In this case, conviction is not based on extra-judicial confession alone. The deceased and the accused appellant were last seen together, at the place of occurrence. The accused appellant was with the deceased at the place of occurrence. The Prosecution Witness No.3 being the sister-in-law of the deceased saw the accused appellant leaving the place of occurrence after bolting the room from outside, and immediately thereafter the mother of the deceased opened the door of the room to find the deceased dead. 35. The judgment of the Division Bench of Rajasthan High Court in State of Rajasthan v. Purkha Ram reported in 1997 CRI.L.J. 943 is also distinguishable on facts. There is evidence of matrimonial discord which in itself is indicative of motive. Moreover, failure of the prosecution to establish motive by evidence does not mean there was no motive, when the overall evidence points to the guilt of the accused ( AIR 2005 SC 418 ). 36. The accused appellant in his examination under Section 313 of the Criminal Procedure Code, took the plea and/or alibi that he was not present when the incident occurred and he was somewhere else. Further in cross-examination it was suggested that there was dispute between brother and sister (de facto complainant and the deceased) over property matters. However, the presence of the accused appellant has been proved beyond any iota of doubt and there is no evidence at all of any dispute between brother and sister over any property matter. The specific defence of the accused appellant of absence from the place of occurrence, which far from being proved, has been disproved, in itself strengthens the case of the prosecution regarding the guilt of the accused appellant. 37. We have perused the post mortem report as also the evidence of the doctor who conducted the post mortem examination. In cases of death by hanging there would only be a ligature mark in the upper part of the neck and not the lower part. 37. We have perused the post mortem report as also the evidence of the doctor who conducted the post mortem examination. In cases of death by hanging there would only be a ligature mark in the upper part of the neck and not the lower part. Further more it is significant that she was found by at least eight witnesses in kneeling position with her knees bent. Had the death been a result of hanging from the ceiling, the legs would not have been in a folded position, as though she were kneeling. There was a noose, which was difficult to open. 38. On consideration of the evidence of the witnesses, we have no hesitation to uphold the conviction of the accused appellant. The appeal is, therefore, dismissed and the judgment and order of conviction and order of sentence are confirmed. Appeal dismissed.