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2016 DIGILAW 861 (GAU)

Abdul Khaleque v. State of Assam

2016-09-16

AJIT SINGH, N.CHAUDHURY

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JUDGMENT AND ORDER : Ajit Singh, J. The sole appellant Abdul Khaleque has been convicted under Section 302 of Indian Penal Code and sentenced to imprisonment for life. 2. According to the prosecution case, Rohima Khatoon was married to the appellant about 20 years prior to the date of incident where after, she gave birth to two sons and one daughter. After the birth of third child, the appellant developed interest in another woman Manowara Begum and wanted to marry her. Rohima objected to his intention of marrying Manowara. This led to frequent quarrels between them. And on the intervening night of 11/12-10-2007, the appellant strangulated Rohima to death in his house. He then, on 12.10.2007, around 9 a.m. lodged the First Information Report in writing at Borghat Police Outpost alleging that Rohima had committed suicide by hanging. On receipt of the written First Information Report, its entry was made in General Diary vide Borghat Outpost G.D. Entry No.199 dated 12.10.2007. Acting upon the information, Investigating Officer - Golap Deka (PW-7) visited the house of appellant and found that body of Rohima was lying on a mat in the courtyard. He thereafter made the inquest report on the dead body vide exhibit 2. He also seized one rope vide exhibit 3 which was produced by the appellant. At that point of time, Golap Deka bonafide believed that Rohima had committed suicide. He however sent her body for the post mortem examination. 3. On 12.10.2007, around 3 p.m. Abdul Kadir (PW-1), father of Rohima also lodged written First Information Report alleging that because Rohima was resisting the appellant from marrying another woman, he ill-treated and tortured her and there was strong possibility that she might have been killed by him. An entry of this report exhibit 5 was made in the G.D. Register and the case was registered at Police Station Tezpur. The earlier report of appellant was amalgamated with the subsequent report of Abdul Kadir and the entire incident was investigated by Golap Deka. 4. Dr. Achinta Kumar Baruah (PW-3) conducted the post mortem examination on the dead body of Rohima. The doctor found one 1.5 cm ligature mark encircling the whole neck with absence of knot. The earlier report of appellant was amalgamated with the subsequent report of Abdul Kadir and the entire incident was investigated by Golap Deka. 4. Dr. Achinta Kumar Baruah (PW-3) conducted the post mortem examination on the dead body of Rohima. The doctor found one 1.5 cm ligature mark encircling the whole neck with absence of knot. The doctor in his post mortem examination report exhibit 1 opined that Rohima died due to asphyxia as a result of strangulation and the injury found was ante mortem and caused by strangulation with rope. 5. Golap Deka after investigating the cause of death of Rohima charge sheeted the appellant for an offence under Section 302 of the Indian Penal Code. 6. During the trial, appellant abjured his guilt and reiterated that his wife Rohima had committed suicide. But the trial court disbelieved his defence and relying upon the evidence adduced by the prosecution, particularly the post mortem examination report, convicted and sentenced the appellant, as aforesaid. 7. It is argued on behalf of appellant that in the absence of any eye witness against the appellant that he committed the murder of Rohima, the trial court committed an illegality in convicting him under Section 302 of the Indian Penal Code. It has also been argued that the trial court ought not to have relied upon the post mortem examination report which was merely an opinion of an expert. 8. In Ganeshlal Vs. State of Maharashtra, (1992) 3 SCC 106 , the accused was prosecuted for the murder of his wife which took place inside his house. In this case, the Supreme Court observed that when the death had occurred in the custody of accused, he is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 of the Code of Criminal Procedure. The mere denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. 9. The Supreme Court in the case of Trimukh Maroti Kirkan Vs. The mere denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. 9. The Supreme Court in the case of Trimukh Maroti Kirkan Vs. State of Maharashtra, (2006) 10 SCC 681 has again approved the well settled principle that when an incriminating circumstance is put to the accused and that accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. In this case the Supreme Court has also held that where a husband is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling house where the husband also normally resided and if the husband does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it was a strong circumstance pointing that he alone was responsible for the commission of crime. 10. There is yet another decision of the Supreme Court, State of Rajashthan vs. Kashi Ram, AIR 2007 SC 144 wherein it is held that when the accused was last seen with his murdered wife, he must give explanation or plead alibi in support of his innocence or else it would be a strong circumstance against him pointing towards his guilt. 11. In the present case, the dead body of Rohima was found lying on a mat in the courtyard of appellant’s house where both of them lived. As mentioned above, the appellant himself lodged a police report in writing stating therein that his wife Rohima had committed suicide by hanging herself. Golap Deka acting upon the information went to his house and made the inquest on the body believing that she did commit suicide. But Abdul Kadir after seeing the body of Rohima became suspicious against the appellant and lodged the First Information Report attributing strong suspicion against the appellant of murdering her because he wanted to marry another woman and she was resisting. But Abdul Kadir after seeing the body of Rohima became suspicious against the appellant and lodged the First Information Report attributing strong suspicion against the appellant of murdering her because he wanted to marry another woman and she was resisting. Abdul Kadir and Jahura Khatoon have testified in one voice against the appellant that he used to ill-treat and torture Rohima because she was strongly objecting to his intention of marrying another woman. 12. The post mortem examination report of Rohima confirmed that she was strangulated to death. 1.5 cm ligature mark encircling the whole neck with the absence of knot was found on her body. Dr. Achinta Kumar Baruah has stood firm in his cross examination that Rohima was strangulated to death. He has also testified that in case of hanging there will be a knot and no knot was found on the neck of Rohima. Also in case of suicide by hanging, the ligature mark is not continuous and there is a gap at the place of knot. Apart from this, ligature mark is transverse across the neck; whereas in case of death by strangulation, the ligature mark is continuous around the neck without the gap. This being the situation, we find no good ground to disbelieve the post mortem examination report which states that Rohima was strangulated to death. No evidence has been adduced by the appellant to establish that Rohima committed suicide by hanging herself in his house. Not one neighbour of appellant has come forward to say that Rohima was seen hanging from roof. The appellant did not even think proper to examine his children to establish his defence that Rohima committed suicide by hanging herself. 13. Apparently, the appellant after strangulating Rohima to death lodged a false police report stating therein that Rohima had committed suicide by hanging herself. He also disclosed this to his children and everyone in the locality. Interestingly, no explanation was given by the appellant why she committed suicide. Having regard to the above referred decisions of the Supreme Court, this misleading act on the part of the appellant leads to only one conclusion that he alone was responsible for the commission of crime. 14. For these reasons, we find no merit in this appeal and it is accordingly dismissed.