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2016 DIGILAW 669 (GAU)

Md. Abul Hussain v. State of Assam

2016-07-22

AJIT SINGH, SUMAN SHYAM

body2016
JUDGMENT : Ajit Singh, J. The sole appellant Md. Abul Hussain has been convicted under section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.10,000/- with default stipulation for committing the murder of his wife Rajina Khatoon, aged 18 years. 2. According to the prosecution case, appellant and Rajina had love relations and they were found in a compromising position by the public in the house of Md. Ramzan Ali (PW-12). The public did not approve their such conduct and persuaded them to marry each other. A fine of Rs.20,000/- was also imposed on Ramazan Ali by the public for allowing them to have physical relations in his house. After marriage, appellant and Rajina lived together in their house. But, the appellant was pressing Rajina to get Rs.20,000/- from her parents Md. Asmat Ali (PW-3) and Mustt. Jahura Khatun (PW-4), so that, the amount may be given to Md. Ramazan Ali. Rajina, however, could not arrange the money due to which the appellant physically ill-treated her. On the night of 24.1.2008, the appellant along with his mother went to the parents of Rajina and disclosed that she had been missing. On the following morning i.e. 25.1.2008, dead body of Rajina was found in a field about ½ km from the house of appellant. An ejahar was lodged by Md. Asmat Ali at Police Station Moirabari, District Morigaon. In the ejahar, he expressed suspicion that appellant might have killed Rajina. The police therefore arrested the appellant and interrogated him. During interrogation, the appellant made confession before a large gathering that he gagged Rajina to death by pressing pillow on her face. The police then seized one cotton pillow on 27.1.2008 from the possession of appellant. The seizure memo in this regard is Exhibit 2. 3. On 25.1.2008, Dr. Arun Kumar Nath (PW-15) conducted the post mortem examination on the dead body of Rajina. He did not find even a simplest form of injury or sign of any disease or deformity, fracture and dislocation on the body. The doctor, thus, could not give any opinion on the cause of death of Rajina. He, however, preserved spleen, liver, kidneys and stomach for forensic examination. The report dated 25.11.2008 Exhibit 3 of the Forensic Science Laboratory also confirmed that no poison was found in any of the samples sent. 4. The doctor, thus, could not give any opinion on the cause of death of Rajina. He, however, preserved spleen, liver, kidneys and stomach for forensic examination. The report dated 25.11.2008 Exhibit 3 of the Forensic Science Laboratory also confirmed that no poison was found in any of the samples sent. 4. During the trial, the appellant abjured his guilt and pleaded false implication. 5. The Trial court essentially relying upon the evidence of extra judicial confession made by the appellant, post mortem examination report and seizure of pillow, convicted and sentenced the appellant as aforesaid. 6. The trial court has held that since Rajina did not suffer from any disease and no poison was found in her stomach etc. it can safely be presumed that appellant must have killed her. We wholly disagree with this finding of the trial court. It is well settled that to convict a person for an offence of murder, the prosecution must prove by adducing cogent evidence that the death of victim was homicidal. In the present case, the body of Rajina was examined by Dr. Arun Kumar Nath. He did not find any injury on the body of Rajina. No poison was also found in her stomach etc. after chemical analysis. Even, according to the prosecution, no one did see the appellant killing Rajina. Also there is no evidence whatsoever to indicate that appellant was seen at or near the place where her body was found. Appellant and Rajina had married after having long love relations. For these reasons, it is difficult to hold that the death of Rajina was homicidal or the appellant caused her death. 7. The next evidence is of extra judicial confession made by the appellant during interrogation by the police that he gagged Rajina to death by pressing pillow on her face. As already seen above, no injury whatsoever or any sign of gagging was found on the body of Rajina. Therefore, the version as per the extra judicial confession is inconsistent with the medical evidence. The extra judicial confession should be taken as a whole and must not suffer from any infirmity if it is to be acted upon. Moreover, in the present case, all the witnesses examined by the prosecution in respect to extra judicial confession have admitted that the confession was made by the appellant during interrogation in the presence of police. Md. The extra judicial confession should be taken as a whole and must not suffer from any infirmity if it is to be acted upon. Moreover, in the present case, all the witnesses examined by the prosecution in respect to extra judicial confession have admitted that the confession was made by the appellant during interrogation in the presence of police. Md. Dildar Hussain (PW-2), brother of Rajina, has also admitted in his cross examination that appellant was assaulted in the Police Station. Apparently, such a confession made in the presence of police during interrogation and by beating the appellant at the police station is not only unacceptable but also inadmissible. 8. The evidence of seizure of pillow also does not help the prosecution case in any manner. No stain of blood was found on the pillow. Even no sign of gagging or failure of respiratory system was found in the post mortem examination report of Rajina. The seizure of pillow therefore does not connect the appellant with the death of Rajia. 9. Some of the prosecution witnesses especially the family members of Rajina have testified that the appellant had beaten her by giving kick blows a day or two before the date of incident. These witnesses have admitted that Rajina was having pregnancy of ¾ months at the time of her death. Had the appellant beaten her as stated by them, she would have suffered from abortion or at least some sign of injury would have been found. As already seen above, no sign of injury was found on the body of Rajina by the doctor, who conducted the post mortem examination. 10. For these reasons, we are of the considered view that the prosecution has grossly failed to prove that the appellant committed the murder of Rajina and he has been roped in merely on suspicion because he happened to be her husband. 11. In the result, the conviction and sentence awarded by the trial court are set aside. The appellant is in jail. He be set at liberty, if not wanted in any other case. The appeal is allowed.