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2016 DIGILAW 765 (GAU)

Md. Jaharul Haque v. State of Assam

2016-08-12

AJIT SINGH, N.CHAUDHURY

body2016
JUDGMENT & ORDER : N. Chaudhury, J. The prosecution story as revealed in Charge-sheet No. 63/2001 dated 05.12.2001 is that one Abdul Rahim as informant had lodged an ejahar with Barbhita Outpost of Baghbar Police Station in the district of Barpeta on 16.06.2000 alleging that his niece Mustt. Abirannessa married to Md. Jaharul Haque about 1 ½ years back was hacked to death by her husband after chasing her from her house to the bank of the pond near J.N.D. Gunialguri N.N.P. road. Public apprehended the accused when he had tried to escape after committing the incident and was handed over to police. G.D. Entry No. 189 dated 16.06.2000 was made by Barbhita Outpost at about 3.00 p.m. and the ejahar was forwarded to Baghbar Police Station. Baghbar P.S. Case No. 68/2000 under Section 302 IPC was registered and investigation started. 2. In course of investigation the Investigating Officer visited the spot, examined witnesses, sent up the dead body for post mortem examination after holding inquest. After post mortem report was received charge-sheet was filed against accused Jaharul Haque under Section 302 IPC. Learned SDJM(S), Barpeta, committed the case to the Court of Sessions by his order dated 07.02.2006 leading to registration of Sessions Case No.12/2006 under Section 302 IPC. Learned Sessions Judge framed charge under Section 302 IPC against the accused who pleaded not guilty and claimed to be tried. 3. In course of trial prosecution examined as many as seven witnesses including the I.O. and the M.O. The accused did not engage any counsel and the learned Court also did not appoint any amicus curiae. After consideration of the materials produced by the prosecution the learned Sessions Judge examined the accused person under Section 313 Cr.P.C. when the accused admitted to have committed the offence. By judgment and order dated 17.05.2006 the learned Sessions Judge convicted the accused under Section 302 IPC and sentenced him to suffer rigorous imprisonment for life and to pay a fine of Rs.10,000/-, in default, to suffer rigorous imprisonment for further five years. The appellant preferred Criminal Appeal No. 103(J)/2006 there against which was allowed by this Court on 04.03.2011 setting aside the judgment and order of conviction and the case was remanded to the Sessions Court for retrial after giving opportunity to be defended by a lawyer. 4. The appellant preferred Criminal Appeal No. 103(J)/2006 there against which was allowed by this Court on 04.03.2011 setting aside the judgment and order of conviction and the case was remanded to the Sessions Court for retrial after giving opportunity to be defended by a lawyer. 4. On receipt of the records the learned Sessions Judge appointed a legal aid counsel on behalf of the accused as the accused expressed his inability to engage any counsel at his own cost. Thereafter, the witnesses were reexamined and they were cross-examined by the learned legal aid counsel on behalf of the defence. Having considered the evidence led afresh, the learned trial Court passed the impugned judgment and order on 15.12.2012 convicting the appellant under Section 302 IPC and sentenced him to suffer rigorous imprisonment for life and to pay a fine of Rs.5000/-, in default, to suffer further imprisonment for three months. This judgment has been called in question in the present appeal. 5. We have heard Dr. B. N. Gogoi, learned Amicus Curiae on behalf of the appellant and Ms. S. Jahan, learned Additional Public Prosecutor, Assam. We have also perused the lower court records including the depositions of the witnesses and the statement of the accused under Section 313 Cr.P.C. 6. PW 1, informant, is not an eye witness. He stated that having received the information he came to the place of occurrence and found the dead body of Abiron Nessa lying on the ground inside the house of the accused. People present there informed him that Jaharul had killed his wife by inflicting dao blow at her neck. Accordingly, he lodged the ejahar Ext-1 wherein Ext-1(1) is his signature. His statement on reexamination after remand was recorded on 21.03.2012 and the statements were more or less of the same nature. 7. PW 2, Dr. Sanjib Kumar Saikia, was reexamined on 04.04.2012 when he described the injuries on the person of the dead body and the same are quoted below :- “Wounds : (1) One cut injury on the right cheek at the level of angle of mandible above 6cm x 4cm x full thickness of cheek. (2) Cut injury left cheek near ear about 3cm x 2cm x 1cm. (3) Cut injury anterior aspect of left side of neck at the level of thyroid cartilages about 5cm x 3cm x 3cm. Caroty dirtary incised, blood and blood clot present. (2) Cut injury left cheek near ear about 3cm x 2cm x 1cm. (3) Cut injury anterior aspect of left side of neck at the level of thyroid cartilages about 5cm x 3cm x 3cm. Caroty dirtary incised, blood and blood clot present. (4) Abrasion posterior aspect of left middle finger about 2cm x 1cm.” He was of the opinion that the cause of death was due to shock and haemorrhage as a result of the injuries sustained in her person. 8. PW 3, Rohiman Nessa, while examined for the first time on 05.04.2006 had implicated her own son of chasing her deceased daughter-in-law after quarreling with her. She stated to have resisted her son unsuccessfully. She was declared hostile and cross-examined. On her reexamination on 30.04.2012 after remand of the case she stated that her son picked up quarrel with his wife Abiron Nessa and started to assault her. Being mother she tried to resist her son and as a result of scuffling she fell down on the ground due to old age. In the meantime Abiron escaped from the clutches of the accused and ran towards the field but the accused chased her. The accused struck dao blow on the neck of Abiron Nessa resulting in her death instantaneously at the spot. Her son tried to flee away after committing the crime but the village people managed to apprehend him and then her son confessed before public that he had killed his wife by inflicting dao blows at her neck. Of course, in course of her cross-examination she stated that when she had fallen down on the ground as a result of scuffling with her son at the time of resisting him from assaulting her daughter-in-law, thereafter what had happened in the field was not witnessed by her. She being the mother of the accused there is no reason of her falsely implicating the son. 9. PW 4, Majeda Khatoon, happens to be the brother’s wife of the accused. At the time of occurrence she went to wash her clothes and on return she heard that accused had assaulted his wife with a dao and caused death. She saw the injuries on her person. She was not cross-examined. On remand of the case she was re-examined as PW 6 and her statements were more or less of similar nature and she was also cross-examined by the defence. 10. She saw the injuries on her person. She was not cross-examined. On remand of the case she was re-examined as PW 6 and her statements were more or less of similar nature and she was also cross-examined by the defence. 10. Aditya Kumar Das, Inspector CID Headquarters, was also examined as PW 4 on 29.04.2012. He proved the charge-sheet filed by him as he was the in-charge of Barbhita Outpost at the relevant time. 11. PW 5, Chandra Kanta Pathak, was the I.O. He proved seizure list of the dao by which the deceased was murdered. He also proved Ext- 5 sketch map and Ext-6 inquest report. 12. PW 7, Abdul Majid, is an important witness. He is a cultivator by occupation and is an inhabitant of the same village. He deposed that after offering namaj in the noon he heard hue and cry from the house of the accused. Immediately he rushed to the scene and saw accused Jaharul Haque. The accused tried to flee away having seen him. He with the help of other people managed to apprehend the accused and then the accused confessed before them that he had killed his wife. Then PW 7 saw the dead body of the deceased on the courtyard of his house with cut injury at her neck. The evidence given by this witness is in conformity and corroboration of the deposition of PW 3, Rahimon Nessa, the mother of the accused. 13. Although on the first occasion the accused had admitted in his statement under Station 313 Cr.P.C. that he had inflicted injuries on his wife with a dao but after the remand when he was re-examined under Section 313 Cr.P.C. he did not make any confession. The learned trial Court considered the extrajudicial confession made by the accused before public as well as the PW 7 alongwith the chain of circumstances. According to the learned trial Court, the extrajudicial confession was voluntary and correct. It was corroborated by the evidence of PW 3 and PW 7. The admission made by the accused under Section 313 Cr.P.C on the first occasion and handing over of dao to the police were sufficient to establish the circumstances against the accused. The post crime conduct of the accused is relevant under Section 8 of the Evidence Act. It was corroborated by the evidence of PW 3 and PW 7. The admission made by the accused under Section 313 Cr.P.C on the first occasion and handing over of dao to the police were sufficient to establish the circumstances against the accused. The post crime conduct of the accused is relevant under Section 8 of the Evidence Act. He made an attempt to escape from the place of occurrence immediately after commission of the offence but he was captured by the public. He made the attempt immediately after he had seen PW 7 in the spot and thus prosecution established circumstances against the accused. 14. PW 3 is none other than the mother of the accused who was present when accused quarreled with his wife. Thereafter physical violence on the deceased and PW 3 being mother-in-law sided with her daughter-in-law. She extended her every nerve to restrain the accused from committing the offence. The accused pushed her down on the ground. Taking the opportunity of interruption created by PW 3, the victim succeeded to escape from the clutches of the accused and she ran towards the pond. PW 3 noticed that the accused chased her. In her examination-in-chief she stated that the accused inflicted blow on the neck of the deceased causing her instantaneous death. Even if she did not see the actual assault by the sharp weapon she had seen the accused chasing the deceased on the previous moment. It is thereafter the deceased was hacked to death by blow of dao at her neck and there was hue and cry. At that stage the accused wanted to flee from the place of occurrence on being spotted by PW 7. Having seen that PW 7 had arrived at the spot, the accused wanted to flee leaving the dead body of his wife behind and then PW 7 with the help of other villagers apprehended the accused from the scene. What is apparent from above is that accused was seen by PW 3 in quarreling with his wife and chasing her from behind. Nobody had seen the exact incidence of inflicting the blow but PW 7 had seen the accused from trying to escape from the place of occurrence leaving the dead body of his wife behind. What is apparent from above is that accused was seen by PW 3 in quarreling with his wife and chasing her from behind. Nobody had seen the exact incidence of inflicting the blow but PW 7 had seen the accused from trying to escape from the place of occurrence leaving the dead body of his wife behind. These two circumstances, namely, quarreling with his wife and chasing from behind and trying to escape from the place of occurrence leaving behind the dead body of his wife eloquently speak against the accused person. Had he not been guilty of committing the offence he would not have left the dead body of his wife behind and rather would have been near her to find out as to who had murdered his wife. He was apprehended by public and then he confessed in front of PW 7 that he had killed his wife. These testimonies are sufficient to hold that the offence committed by the accused in killing his wife by striking dao blow at her neck has been proved beyond reasonable doubt by way of circumstantial evidence. 15. Having heard the learned counsel for the parties and upon noticing the aforesaid evidence on record, we do not find any reason to interfere with the finding of conviction and sentence of the appellant. Consequently, the appeal stands dismissed and the conviction and sentences are upheld. Send down the records.