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2016 DIGILAW 806 (GAU)

Waheb Ali v. State of Assam

2016-08-26

AJIT SINGH, N.CHAUDHURY

body2016
JUDGMENT AND ORDER : N. Chaudhury, J. The prosecution story is that one Baharul Islam lodged an ejahar with the Officer-Incharge of Mandia Outpost on 20.6.2010 informing that on 9.30 am on that day he heard commotion in the house of her elder sister, Joynab Khatoon. Immediately, he went there and saw the accused Wahab Ali who is the husband of her elder sister, Joynab Khatoon inflicted grievous injury on her person with a dagger. Having seen him, the accused fled away wading through the water. He took the injured sister to Barpeta Civil Hospital in a critical condition where she was declared deed. On the basis of this ejahar, GD Entry No. 328 was made at 6 pm on 20.6.2010 and the same was forwarded to Officer In-Charge of Baghbar Police Station for registering a case. This is how Baghbar P.S. Case No. 57 of 2010 was registered under Section 302/34 IPC. 2. The investigating Officer came to the place of occurrence, prepared sketch map, seized the incriminating dagger and after recording statement of the witnesses and on receipt of the post-mortem report, submitted charge sheet against accused Wahab Ali on 31.3.2011. 3. In course of trial, prosecution examined 9 witnesses including the medical officer and the investigating officer. 4. PW-1, Baharul Islam stated on oath that her elder sister Joynab was given in marriage to accused Wahab Ali 15 years before the incident. They had four children. Incident took place on 25.6.2010 at around 9 am. Hearing noise of the children of the deceased, he went to their house and saw the accused Wahab Ali stabbing the deceased with a dagger when deceased was washing clothes. Having seen him, the accused fled away. He thereafter bandaged the wound of the injured with clothes. In the meantime, neighbours like Sattar, Billal and others had gathered with the help of neighbours. He took her to Barpeta Civil Hospital by Ambulance-108 but his sister succumbed to the injury. He thereafter filed the ejahar being Exhibit-1. It came to light in course of his deposition that the house of PW-1 and that of the deceased are in the same vicinity. 5. PW-2, Billal Hussain is a neighbour. He stated that having heard commotion from the house of the deceased, he rushed there and saw Joynab, wife of the accused was lying in an injured condition. It came to light in course of his deposition that the house of PW-1 and that of the deceased are in the same vicinity. 5. PW-2, Billal Hussain is a neighbour. He stated that having heard commotion from the house of the deceased, he rushed there and saw Joynab, wife of the accused was lying in an injured condition. Half of her body was in water and half on land. He lifted the body with PW-1 and bandaged the wound. There was a knife embedded in her stomach. Thereafter, they took the injured to Mandia Block and thereafter to Barpeta Civil Hospital in a 108 Ambulance. In course of his cross examination, he stated that PW-1 had reached the place of occurrence ahead of him. 6. PW-3, Asiran Nessa was 11 years of age as on 19.9.2012 while she was examined in court. The learned Sessions Judge noted before recording her statement that though she is a child witness but she was able to answer rationally and with intelligence when questions were put to her. Having so satisfied with the capacity of understanding and rationality of the witness, the learned Sessions Judge proceeded to record her statement on oath. She stated that deceased was her mother while accused is her father. PW-1 is her maternal uncle. On the morning hours of the day of occurrence, her mother was busy in washing quilts and other clothes. She had washed one quilt and spread it out for drying. While washing the other quilts, she called for help from her husband who is the accused herein. The accused replied ‘Wait, I am coming’. Saying so, he went inside the house and came out with a dagger in hand. He inflicted injuries on the right arm of the deceased first and then to her left arm and then stabbed her at her abdomen. Her mother fell down in water and leaving her in that condition, the accused fled from the scene swimming. They raised hue and cry hearing which PW-1 came. He pulled her mother from the water and in the meantime, other persons like Billal, Baharul and others had also assembled. They took her other to Mandia Block in an injured state and then to Barpeta Medical Hospital where her mother died. She and her brother Zehrul showed the police the dagger with which her mother was killed. He pulled her mother from the water and in the meantime, other persons like Billal, Baharul and others had also assembled. They took her other to Mandia Block in an injured state and then to Barpeta Medical Hospital where her mother died. She and her brother Zehrul showed the police the dagger with which her mother was killed. Police recorded her statement which is Exhibit-3. In course of cross-examination, she confirmed that her father stabbed her mother with a dagger. 7. PW-4, Phul Khatun is a neighbour. Hearing commotion in the house of the deceased, she came at around 9/10 am and found Joynab being helped into a boat by some people. She found blood in her body and in her belly portion of the dress. PW-1 was helping her into boat and she found daughter of injured weeping loudly. One of the daughters of the deceased told her weeping that the accused had stabbed her mother in belly with a dagger. She also watched Wahab Ali running through water before she had reached the place of occurrence. Joynab was taken to hospital where she died. 8. PW-5, Sobhan Ali arrived at the place after the incident had taken place. Hearing commotion from the house of the accused, he asked from his house as to what had happened and then swam across water to reach the place of occurrence. Having reached, he found PW-1 and PW-4 were already there. He also saw the accused swimming through the water. Joynab was lying in an injured state. Blood was coming out. He noticed injury in Joynab’s belly and then other carried the body to a boat and then by car the injured was taken to Barpeta Civil Hospital where she succumbed to injuries. He was present when the dagger was seized from the place of occurrence. Exhibit-4 is the seizure list wherein Exhibit-4(1) is his signature. 9. PW-6, Abdul Kader Ahmed went to the place of occurrence much after the incident had taken place. He saw a lot of people there and heard that injured Joynab Khatun had already been taken away for treatment. He noticed that police seized a dagger with a wooden handle and certain quantity of blood in grass. He was a witness of the seizure. 10. PW-7, Sohrab Ali could not furnish any information. His deposition is of no help either to the accused or to the prosecution. He noticed that police seized a dagger with a wooden handle and certain quantity of blood in grass. He was a witness of the seizure. 10. PW-7, Sohrab Ali could not furnish any information. His deposition is of no help either to the accused or to the prosecution. 11. PW-8, Dr. Nurul Islam proved the injuries. He found two stab injuries on abdomen. One stab injury on right arm, one stab injury on the left ear. One stab injury on the back. Two stab injuries on the abdomen at left to umbilicus, one is 4” deep and the other is 6” deep. He also noticed stab injury on the right upper arm of the size 5” x 4” x 2”. One stab injury to left ear which is 3” x 2” x 2”. According to him, death was due to haemorrhage as a result of five stab injuries. He proved post-mortem as Exhibit-6 and Exhibit-6(1) is his signature. 12. PW-9 is the Investigating Officer. He narrated the whole course of investigation and proved charge sheet and other documents including the inquest report and seizure list etc. The learned Sessions Judge thereafter examined the accused persons under Section 313 Cr.P.C. when he did not explain the injuries on the person of her wife. Having examined the witnesses on record, the learned Sessions Judge passed the impugned judgment and order on 18.11.2013 holding the accused guilty of offence under Section 302 IPC and sentenced him to rigorous imprisonment for life and to pay a fine of Rs.10,000/- in default to undergo simple imprisonment for another six months. This judgment has been challenged in the present appeal. 13. We have heard Ms. S. Kanungoe, learned Amicus Curiae on behalf of the Appellant and Mr. D. Das, learned Additional Public Prosecutor. We have also perused the evidence on records. 14. Here is a case where husband inflicted five stab injuries on the person of her wife in front of his minor children. One of the minor children, PW-3 stated on oath before the learned Sessions Judge as to how the injuries were inflicted by her father on the various parts of the body of her mother leading to her death. The only fault the woman had committed inviting such grievous injury is that she sought for help of her husband in washing quilt. The only fault the woman had committed inviting such grievous injury is that she sought for help of her husband in washing quilt. She had already washed one quilt, squeezed it and spread it out for drying. May be she was tired and wanted a helping hand from her husband who was at home. Husband having assured her of coming to her help, came out with a dagger in hand and inflicted injuries on her arms as well as back of her abdomen. The learned Sessions Judge while recording the statement of this child witness first proceeding to test as to whether this witness was capable of understanding and as to whether she had rationality. On being satisfied that the child was a competent witness, he recorded her statement. 15. It is a settled law that when a child witness has sufficient intelligence and the learned trial Judge noticed so from the manner and demeanour of the child, a Judge may resort to any examination which will tend to disclose the capacity and intelligence of the child as well as the understanding of the obligation of other. Precaution is necessary because child witnesses are amenable to tutoring and living in a world of make beliefs. Though, it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily shaked and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence, the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness. In the case of Ratansingh Dalsukhbhai Nayak vs. State of Gujarat reported in (2004) 1 SCC 64 , the Hon’ble Supreme Court held the aforesaid view and relied on the evidence of a 10 years old child in that case. In the aforesaid judgment, the Hon’ble Supreme Court noticed the observation of the Hon’ble Supreme Court in the case of Dattu Ramrao Sakhare vs. State of Maharashtra reported in (1997) 5 SCC 341 which is quoted below:- "A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In the aforesaid judgment, the Hon’ble Supreme Court noticed the observation of the Hon’ble Supreme Court in the case of Dattu Ramrao Sakhare vs. State of Maharashtra reported in (1997) 5 SCC 341 which is quoted below:- "A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the Court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored". 16. In the present case, the learned Sessions Judge has taken necessary precaution and thereafter recorded the statement of the child witness. Deposition of this witness is in conformity with the evidence of PW-1 who is yet another eye witness. PW-1 was examined by the police on the following day of occurrence after Joynab had succumbed to the injuries. Even in his statement under Section 161 Cr.P.C., PW-1 had given the same version of facts. Having considered the statement under Section 161 Cr.P.C., we do not feel that there is any improvement in the deposition of PW-1 in court. PW-1 has claimed to have seen accused Wahab Ali inflicting stab injury on Joynab. Other witnesses have seen Wahab Ali escaping from the place of occurrence. All the witnesses have seen Joynab in seriously injured condition. Had the accused been innocent, he would have been the first person to come for help of her injured wife. When PW-1 and others took the injured in a serious condition initially by boat and then by ambulance to Barpeta Medical Hospital, accused was seen swimming away from the place of occurrence. He not only failed to forward to give explanation as to how the injuries has been caused to his wife, he stayed away from the place of occurrence and considering such conduct of the accused along with depositions of PW-1 and PW-3, there is no room left for doubt about guilt of the accused person. He not only failed to forward to give explanation as to how the injuries has been caused to his wife, he stayed away from the place of occurrence and considering such conduct of the accused along with depositions of PW-1 and PW-3, there is no room left for doubt about guilt of the accused person. The two eye witnesses have seen him committing the offence. The learned Sessions Judge has not committed any error in convicting the accused person under Section 302 IPC and in imposing sentence of rigorous imprisonment for life imprisonment. 17. Having heard the learned counsel for the parties and on consideration of the materials on record, we are of the view that the appeal has no merit. It is accordingly dismissed. The conviction and sentenced imposed by the learned Sessions Judge are hereby upheld. 18. Send down the records.