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2016 DIGILAW 634 (GAU)

Md Alfaz Ali v. State of Assam

2016-07-15

AJIT SINGH, SUMAN SHYAM

body2016
JUDGMENT AND ORDER : Suman Shyam, J. The appellant has been convicted under Section 302 of the Indian Penal Code (IPC) for murdering his wife Marzina Begum and has been sentenced to rigorous imprisonment (RI) for life along with fine of Rs. 2000/- with default stipulation. 2. The appellant was living in a rented house along his wife Marzina Begum and a son aged about 1½ years when the incident took place. On 31/10/2006 at about 12:15 in the mid-night, the Marzina Begum was found dead inside the house of the appellant. An Ejahar was filed by Md. Abdul Jalil, the father of the deceased, before the Officer-in-Charge, Jogigopa Police Station on 31/10/2006 reporting the incident. On the basis of the said ejahar, Jogigopa P.S. case No. 168 dated 31/10/2006 was registered and the investigation was carried out. 3. Post-Mortem examination was conducted on the dead body of the deceased on 31/10/2006. Dr. Sushanta Bhattacherjee, who had conducted the post mortem examination, was examined as PW-9. The witness has deposed before the trial court that the death of the deceased had occurred due to asphyxia following throttling. From the post mortem report (Ext-2) it can be seen that the injuries found in the body of the deceased included two bruises on the front and six on the back side of the neck, on both sides, as well as two deep bruise marks on both sides over the sternomastoid on the front side of the neck with impression of finger on the back of the neck. Therefore, from the testimony of the PW-9 and the Post Mortem report it is established that the death of the deceased occurred due to throttling. 4. Ms. Ayesha Khatun (PW-1), a neighbour of the appellant, had deposed that at about 12:00 in the mid night on the date of the incident, she found that the door of the house of the appellant was open and she saw Marzina lying dead on the bed while her child was crying. The said witness had also deposed that the appellant Alfaz was not at home at that time. Similarly, Billal Hussain (PW-2) who is the husband of the PW-1, also testified before the Court that he had found the wife of the appellant Marzina lying dead in the bed inside the house. The said witness had also deposed that the appellant Alfaz was not at home at that time. Similarly, Billal Hussain (PW-2) who is the husband of the PW-1, also testified before the Court that he had found the wife of the appellant Marzina lying dead in the bed inside the house. The said witness had further deposed that although the appellant Alfaz was home at the time of incident, yet, he did not find him at the place of occurrence when he went to the house of the deceased. 5. Ms. Sajida Khatun (PW-5), another neighbourhood of the appellant had categorically deposed that on the date of the incident at around 7-8 p.m., the appellant had watched TV in her house and thereafter, he had gone home around 10-11 p.m. PW-5 had also stated that at around 1-1.30 a.m., the father of the deceased, Jalil come and informed her that Marzina was dead. 6. From the statement of the appellant recorded under section 313 of the Code of Criminal Procedure it could be seen that while denying his involvement in the crime, the accused had taken a plea of alibi stating that he was at Meghalaya on the date of the incident so as to work as a labour in the Coal Mines. The appellant could, however, not produce any evidence in support of his aforementioned plea. There is also no explanation furnished by the appellant as to in what manner death had occurred to his wife Marzina inside the house. 7. From the testimony of the witnesses PW-1, PW-2 and PW-5 it is established that the appellant was living in the rented house with his deceased wife and a child when the incident occurred. Further, evidence on record suggests that the appellant was also at home on the date of the incident and not at Meghalaya coal mine as claimed by him. Since, the appellant was the only person, besides his infant son, who was living in that rented house with his deceased wife, hence, the failure on the part of the appellant to offer any explanation as to how the crime was committed inside the house assumes great significance in the facts and circumstances of the present case. 8. Since, the appellant was the only person, besides his infant son, who was living in that rented house with his deceased wife, hence, the failure on the part of the appellant to offer any explanation as to how the crime was committed inside the house assumes great significance in the facts and circumstances of the present case. 8. In the case of Trimukhi Maroti Kirkan v. State of Maharashtra reported in (2006) 10 SCC 681 , the Supreme Court has observed that in an offence like murder 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 that is required to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence and 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 present is also a case of murder of wife and the dead body has been found inside the confines of a dwelling house where the husband normally resides. Besides the appellant, there is no other inmate in that house. Therefore, in absence of any proof supporting the plea of alibi or any explanation offered by the appellant as to the cause of the death of his wife, a very strong presumption under Section 114 of the Evidence Act would arise against the appellant of having committed the crime. 10. The present is a case of circumstantial evidence and having regard to the evidence brought on record, we are of the view that there are strong circumstantial evidence indicating that the appellant himself had committed the murder of his wife and thereafter fled the scene. It may be mentioned herein that soon after the incident had occurred, the appellant was found absconding only to be arrested by the Police on 05/11/2006 from an area in Goalpara district when he was found to be moving around suspiciously. 11. For the reasons stated herein above, we are of the opinion that prosecution side had succeeded in establishing their case by proving the guilt on the part of the appellant. 11. For the reasons stated herein above, we are of the opinion that prosecution side had succeeded in establishing their case by proving the guilt on the part of the appellant. Therefore, the trial court has rightly convicted the appellant under section 302 of the IPC and sentenced him to life imprisonment. In view of the above, there is no merit in this appeal and the same is hereby dismissed.