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2016 DIGILAW 880 (GAU)

Md. Rahim Ali v. State of Assam

2016-09-22

AJIT SINGH, MANOJIT BHUYAN

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JUDGMENT AND ORDER : Ajit Singh, J. The sole appellant Md. Rahim Ali 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. 2. The victims of incident were Jeleka Khatun, aged 30 years, Nur Hussain, aged 6 years and Nurul Haque, aged 4 months. Jeleka Khatun was wife of appellant whereas Nur Hussain and Nurul Haque were their sons. 3. According to the prosecution case, the appellant was married to Jeleka Khatun more than 10 years prior to the date of incident. They had four children. Apart from Nur Hussain and Nurul Haque, they had two daughters – Lal Bhanu, aged 9 years and Nur Bhanu, aged 3 years. All of them lived together in a small house at village Kathalbhuri, District Barpeta. On 27.5.2005, around 3 a.m., the appellant hacked Jeleka Khatun along with Nur Hussain and Nurul Haque to death with a dao in his house. Omar Ali (PW-2) is brother of the appellant. He lived separately in his own house, but it was only 6 metres away from the house of appellant. He on hearing hue and cry in the house of appellant got up and went there. In the house of appellant, he saw injured dead bodies of Jeleka, Nur Hussain and Nurul Haque lying on the floor. He also found Lal Bhanu and Nur Bhanu crying outside the appellant’s room. Since appellant was not present in the house at that point of time, Omar Ali called his neighbour Hanif Ali (PW-1). Hanif Ali also saw injured dead bodies lying in the room of appellant. Soon thereafter, lot many people gathered at the place of occurrence. After some time, the appellant also appeared and the people immediately caught and tied him with a rope against a tree. Fatik Ali (PW-5) is father-in-law of the appellant. He too was informed by someone about the tragic incident. He naturally rushed to the place of occurrence and saw injured dead bodies lying inside the house of appellant. Fatik Ali then made the ejahar exhibit 4 at Police Station Sarthebari wherein he categorically named the appellant as an assailant of Jeleka Khatun, Nur Hussain and Nurul Haque. 4. Investigating Officer-Binod Barman (PW-8) on receiving the ejahar from Fatik Ali went to the house of appellant. Fatik Ali then made the ejahar exhibit 4 at Police Station Sarthebari wherein he categorically named the appellant as an assailant of Jeleka Khatun, Nur Hussain and Nurul Haque. 4. Investigating Officer-Binod Barman (PW-8) on receiving the ejahar from Fatik Ali went to the house of appellant. He prepared inquest reports exhibits 1,2 and 3 of the dead bodies. He also arrested the appellant and referred the dead bodies for post mortem examination. Dr. Rajesh Kumar Das (PW-10) conducted the post mortem examination on the dead bodies. He found multiple cut injuries on all the three dead bodies and opined that deaths were homicidal in nature due to ante mortem cut injuries. His post mortem examination reports of the dead bodies of Jeleka Khatun, Nurul Haque and Nur Hussain are exhibits 8, 9 and 10 respectively. On 29.6.2005, Binod Barman also seized one dao on being produced by Omar Ali (PW-2). The seizure of dao is exhibit 6. 5. During trial, the appellant abjured his guilt and pleaded false implication. The appellant at the stage of his examination as an accused under Section 313 of the Code of Criminal Procedure stated that on the night of incident he was not at home and had gone to the house of his brother-in-law at a place called Sonartari which was about one kilometer away and returned on the following morning around 7 a.m. The appellant also stated that after the death of his wife, he re-married to another woman from whom he had two children but both died. The appellant however did not examine any witness in his defence. 6. Since three injured dead bodies of wife and two minor sons of appellant were found in his house and he failed to give any plausible explanation, the trial court convicted and sentenced him as aforesaid. 7. 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. 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. 8. 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. 9. 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. 10. In the present case, admittedly, the injured dead bodies of Jeleka Khatun, Nur Hussain and Nurul Haque were found in the house of appellant where all of them lived. The post mortem examination reports of these victims confirmed that their deaths were homicidal in nature due to ante mortem multiple cut injuries. Soon after the incident, daughters Lal Bhanu and Nur Bhanu of the appellant were seen crying outside the house by Omar Ali and Hanif Ali. The post mortem examination reports of these victims confirmed that their deaths were homicidal in nature due to ante mortem multiple cut injuries. Soon after the incident, daughters Lal Bhanu and Nur Bhanu of the appellant were seen crying outside the house by Omar Ali and Hanif Ali. At that time, Omar Ali and Hanif Ali did not find the appellant in the house. But later appellant also came whereupon he was caught and tied by the public against a tree. Similar is the evidence of Sheikh Farid Ali (PW-4) who is village headman. According to his evidence, he saw the injured dead bodies of wife and two minor sons of appellant in the house. Fatik Ali as mentioned above is father-in-law of the appellant. He has deposed that appellant wanted to marry another woman to which, Jeleka Khatun objected and for this reason, he not only killed her, but also his two minor sons. The appellant has not denied that the dead bodies of his wife Jeleka Khatun and two minor sons Nur Hussain and Nurul Haque were found in his house. The appellant has even candidly admitted while being examined as an accused that after the death of Jeleka Khatun he re-married another woman from whom he had two children, but both died. This admission of the appellant corroborates the evidence of Fatik Ali that he wanted to re-marry another woman against which Jeleka Khatun had objection. 11. The appellant in his defence has stated that on the night of incident, he was not at home and had gone to the house of brother-in-law at village Sonartari from where, he returned in the morning and was caught by the public. According to him, the house of his brother-in-law was only one kilometer away from his own house. Omar Ali (brother of appellant) deposed that appellant had left the village in the evening before the incident. But, he has also admitted that he was unable to say whether the appellant returned home sometime in the night. The house of appellant’s brother-in-law was only one kilometer away from his house. Therefore, the possibility of his returning home in the night cannot be ruled out. Moreover, he has not examined his brother-in-law or any person from village Sonartari to establish that he was in fact in that village at the time of incident. The house of appellant’s brother-in-law was only one kilometer away from his house. Therefore, the possibility of his returning home in the night cannot be ruled out. Moreover, he has not examined his brother-in-law or any person from village Sonartari to establish that he was in fact in that village at the time of incident. Not only this, the appellant did not even think it proper to examine Lal Bhanu and Nur Bhanu to establish his defence that he was not at home at the time of incident. We, therefore, having regard to the above referred decisions of the Supreme Court, find ourselves in complete agreement with the finding of the trial court that appellant alone was the perpetrator of the crime. 12. There is also an evidence in the form of extra judicial confession of the appellant. But, on reading the evidence of Hanif Ali and village headman Sheikh Farid Ali, we find that appellant made the confession after being tied against the tree and under threat of being beaten up by the crowd which had assembled. Such an extra judicial confession not being voluntary cannot be accepted in the eyes of law. 13. We, however, for the reasons mentioned in paragraph 11 of the judgment, find no merit in the appeal. The appeal is accordingly dismissed.