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2016 DIGILAW 602 (GAU)

Md. Anjar Hussain v. State of Assam

2016-07-11

AJIT SINGH, SUMAN SHYAM

body2016
JUDGMENT AND ORDER : Suman Shyam, J. The appellant has been convicted under Section 302 of IPC and sentenced to undergo R.I. for life and fine of Rs. 10,000/- with default stipulation for committing murder of Jeleka Khatun. 2. The prosecution story in brief is that Jeleka Khatun went missing on 04/04/2006 and later on her dead body was recovered from the house of the appellant on 05/04/2006. The son-in-law of the deceased Md. Hafizur Rahman had identified the body where after he lodged an Ejahar with the Police on the basis of which Moirabari P.S. Case No. 28/2006 was registered under Section 302 of the Indian Penal Code and investigation was started. On completion of the investigation, charge sheet was submitted against the appellant, who was eventually found guilty of having committed the murder of Jeleka Khatun and was accordingly convicted under section 302 of IPC . 3. There is no eye witness to the incident and the trial Court has convicted the appellant on circumstantial evidence taking note of the fact that the dead body was recovered from the house of the appellant and secondly the statement of the appellant had led to the recovery of the chain and bangles belonging to the deceased which were stolen by him and mortgaged with Md. Abdul Rashid (PW-6). 4. The post-mortem report (Ext.4) indicates that the deceased had died due to asphyxia caused by strangulation leading to cardio-respiratory failure and the same was ante-mortem. The doctor who had conducted the post-mortem was examined as PW-5. The doctor confirmed the entries made in Ext.4. 5. The prosecution has relied upon the memorandum statement of the appellant leading to the discovery of the bangles belonging to the deceased Jeleka, which were mortgaged with Md. Abdul Rashid (PW-6).In his evidence, the PW-6 has also stated that the appellant had, in fact, mortgaged the chain and the bangles with him. However, the said statement of the PW-6 is of no consequence since, the chain and the bangles recovered by the Police were neither put forward for identification by any witness who was familiar with the ornaments of the deceased nor were those produced before the court for identification by the witnesses. A mere statement by the I.O. (PW-7) that the ornaments were identified by Md. A mere statement by the I.O. (PW-7) that the ornaments were identified by Md. Hafizur Rahman (PW-1) would not have any evidentiary value in linking the appellant with those ornaments recovered by the Police. 6. PW-4 Molakjain Bibi i.e. the mother of the appellant has deposed that one Chand mian was found near Jeleka's dead body trying to suggest that Chand mian had killed Jeleka. However, PW-4 was declared a hostile witness. 7. The homicidal death of Jeleka Khatun and recovery of the dead body from the house of the appellant has not been disputed. In is also not in dispute that at the time of the occurrence, none other than appellant and his mother were in possession of the house. There is, however, absolutely no explanation on the part of the appellant or his mother as to how the incident occurred in the house under their possession. 8. In the case of Trimukhi Maroti Kirkan v. State of Maharashtra reported in (2006) 10 SCC 681 , the Supreme Court has observed that where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. 9. The dead body of the deceased Jeleka Khatun was admittedly recovered from the house of the appellant, in fact, from the very next room to which the appellant and his mother were sleeping on that night. The appellant has completely failed to furnish any explanation as to how the crime was committed inside his house. In view of the mandate of section 106 of the Evidence Act, a strong presumption would, therefore, arise against the appellant of having committed the crime unless such presumption is displaced by leading cogent evidence, which has not been done in the present case. In view of the mandate of section 106 of the Evidence Act, a strong presumption would, therefore, arise against the appellant of having committed the crime unless such presumption is displaced by leading cogent evidence, which has not been done in the present case. Although, the appellant has taken a plea of alibi stating that being a handyman in a vehicle, he had gone to Dibrugarh on the date of the occurrence, yet, such plea could not be established by him by leading cogent evidence in support thereof. Rather, record reveals that immediately after the incident, the appellant had fled after covering the dead body with cloth and he was arrested by the Police after 3 (three) days. 10. In view of the law laid down by the Supreme Court in the case of Trimukhi Maroti Kirkan (Supra) a strong presumption of guilt will arise against the appellant in the facts and circumstances of the case. Therefore, in our view, the learned trial court was justified in the eye of law in convicting the appellant under section 302 of the IPC on the basis of such strong circumstantial evidence available on record. 11. For the reasons stated herein above, we do not find any merit in the appeal and the same is accordingly dismissed.