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Gauhati High Court · body

2016 DIGILAW 885 (GAU)

MOSTAFAAHMED (MD. ) v. STATE OF ASSAM

2016-09-23

AJIT SINGH, MANOJIT BHUYAN

body2016
JUDGMENT Manojit Bhuyan, J. The appellant Mostafa Ahmed has been convicted under Section 302/201 of the Indian Penal Code for causing death of his six month old son Yaminul Islam and for concealing the dead body and sentenced to rigorous imprisonment for life under Section 302 I.P.C. and to pay fine of Rs. 10,000/-, in default, to further undergo rigorous imprisonment for six months. He has also been sentenced to undergo rigorous imprisonment for two years under Section 201 I.P.C. and to pay fine of Rs. 2,000/-, in default, a further period of three months of rigorous imprisonment. 2. Ejahar (Ext. 1) in the case was lodged by Asia Begum (PW-1) on 26.04.2010 before the Badarpur Police Station, Badarpur stating that on the night of 21.04.2010 at about 2 A.M. while she was asleep with her six month old son Yaminul Islam in the house of the appellant, her son went missing. Although she informed the matter to her husband i.e. the appellant and mother-in-law, they did not show any interest to search out the baby. She had informed the matter to her father through some villagers. The child was found dead in the pond of her husband's house. The appellant along with two others, named in the ejahar, were implicated with accusation that soon after the birth of Yaminul Islam, the accused persons had tortured her physically and mentally in various ways and that they have stolen her son and killed him. Based on the said ejahar Badarpur P.S. Case No. 56/2010 was registered under Section 163/302/201/34 I.P.C. and Sri M.A. Barb-iiuiya (PW-4), Sub Inspector of Police was entrusted to take up the investigation of the case. On completion of the investigation, Charge Sheet was submitted against the appellant Mostafa Ahmed under Section 363 302/201 I.P.C. and the case was committed to trial with formal charge being framed against the appellant under the aforesaid penal provisions. The charge having been read over and explained, the accused pleaded not guilty, where after the case was put to trial. 3. To bring home the charge against the appellant, the prosecution examined as many as 4 (four) witnesses including the Medical Officer and the Investigating Officer. After close of evidence of the prosecution witnesses, statement of the appellant under Section 313 Cr.P.C. was taken with reference to the evidence that had come on record. 3. To bring home the charge against the appellant, the prosecution examined as many as 4 (four) witnesses including the Medical Officer and the Investigating Officer. After close of evidence of the prosecution witnesses, statement of the appellant under Section 313 Cr.P.C. was taken with reference to the evidence that had come on record. The appellant denied his involvement stating that false allegations have been levelled against him. He also declined to adduce evidence by way of defence. 4. Asia Begum (PW-1), who is the informant and the mother of the deceased baby son as well as the wife of the appellant, deposed that she was married to the appellant about five years back. The appellant Mostafa Ahmed has a son and a daughter from his former wife. The appellant married Asia after the first wife died. Out of the said wedlock, Asia gave birth to a female child. She deposed that when she had come back from her paternal house after the delivery of the female child, on the 14th day while she was at her matrimonial house, she had gone to take a bath after keeping her daughter on the lap of her husband i.e. the appellant. After taking bath, she found the baby dead on the lap of the appellant and on being asked about the cause of death, the appellant had replied that he knew nothing. After putting the dead child in her hand, the appellant went out. A year thereafter she had given birth to a male child who was born in the house of the appellant. PW-1 deposed that the appellant neither took care nor liked the son nor showed any interest for his treatment. When her son was about two months old, the appellant had pressed the son's neck in the house and when she raised alarm, the appellant said that he had pressed the neck of the son only to see whether he was sleeping. On another day, Asia had seen some sands on the eyes of his son while he was sleeping and when the appellant was asked about it, he replied that he did not see who had done the mischief. Asia informed this matter to her father as well as to Abdul Rouf who was the negotiator of her marriage and to the members of her father's family when they had paid visit to the appellant's house. Asia informed this matter to her father as well as to Abdul Rouf who was the negotiator of her marriage and to the members of her father's family when they had paid visit to the appellant's house. Asia deposed that her husband i.e. the appellant had taken several attempts to kill/harm the child and on 28.11.09 he had also tried to kill the child by pressing the nostrils of the baby but noticing the presence of Asia he ran away from the room. This matter was informed to one Ayesha Khatun, the wife of the younger brother of the appellant. PW-1 further deposed that around 2 years back the appellant along with his two children of his earlier wife and Asia with her baby son were sleeping in separate rooms. At about 11 P.M. the appellant had entered her room and left after raising the flame of the lantern a little. The door of the house remained close but there was no door between Asia's room and that of the appellant, except for a partition in between. On the same night at about 1 A.M. the appellant had again entered into Asia's room and left after having a personal discussion. Asia fell asleep thereafter and when she woke up after about an hour, she found that her son was not on the bed. She began searching and also entered the appellant's room and found him awake. On being asked, the appellant replied that ghost had taken her son away and saying that he again went off to sleep. Asia raised alarm, opened the door and began searching for the child at the adjacent places but in vain. None from the house had come forward hearing the alarm raised, save and except, 2/3 neighbours who came and started searching for the child, however, without any success. After a while, at around 4 A.M., the appellant along with his two children from his former wife left the house leaving Asia alone. Asia's parents came to the house of the appellant on being informed and her father also informed the matter to the Police. One day thereafter at about 7 P.M. when the wife (Ayesha Begum) of the appellant's younger brother had gone down to the ghat of their pond, she found the child dead floating in the water near the ghat. Asia's parents came to the house of the appellant on being informed and her father also informed the matter to the Police. One day thereafter at about 7 P.M. when the wife (Ayesha Begum) of the appellant's younger brother had gone down to the ghat of their pond, she found the child dead floating in the water near the ghat. Ayesha ran back to the house shouting, where after Asia's parents and siblings rushed to the ghat and saw the dead body of the child. Villagers gathered but the appellant was not in the house. Asia's brother Imdadur informed the Police, who came and lifted the child from the water. PW-1 also deposed that at the time when the child was recovered from the water, her father-in-law, mother-in-law and her husband i.e. the appellant were not present in the house. The dead body was taken to the Police Station. Asia did not further stay in the appellant's house as per instruction of the Police. The following day, post-mortem examination was done and the dead body was brought to the house of her father and funeral was performed. Asia also testified that she suspected her husband of having killed the child. She also stated that since the date of the incident she had been staying in her father's house and the appellant neither met nor tried to take her back to his house. Also, the appellant did not take part in the funeral of the child nor went to the hospital or to the Police Station to receive the body of the child. On cross, Asia stated that she had earlier been married to one Abdul Matin and the daughter born out of her earlier marriage was staying with Abdul Matin. The said marriage had ended in divorce in the year 2004. She also stated that in the ejahar she did not make mention of the girl child found dead on the lap of her husband, that the appellant pressed the neck of her son, that the appellant had kept sand in the eyes of her son as well as the appellant pressing the nostrils of her son. She also stated that she did not make mention in the ejahar about her husband and in-laws not searching for the child nor that her husband had left the house along with his two children when she could not trace out the son. She also stated that she did not make mention in the ejahar about her husband and in-laws not searching for the child nor that her husband had left the house along with his two children when she could not trace out the son. With regard to the earlier incidents, Asia stated that she did not lodge any ejahar, save and except, of having instituted a case against the appellant for maintenance allowance. She also stated that she was not aware of the present whereabouts of her husband but the two children from his earlier wife were staying with him. Lastly, Asia deposed that on the night of the incident, the son of the appellant's earlier wife, aged about 8/9 years, shared the same bed with her six month old son sleeping in between. She also stated that her son did not die due to any carelessness or negligence or as a result of suffocation under a pillow. Further, that she did not keep the child concealed or threw the child into the pond. 5. Md. Abdul Rouf (PW-2) is a close-door neighbour of the appellant and also the negotiator of the marriage between the appellant and Asia. According to him, Asia had given birth to a daughter about one year after her marriage and the child died about 2 A months later. Asia also gave birth to a son after about 8/9 months and six months thereafter the appellant started to torture Asia. PW-2 also deposed that Asia had once called him and told him that the appellant sometimes pressed the nose of the child, sometimes poured sand in the eyes and sometimes pressed the stomach of the child. PW-2 deposed that when he asked the appellant the reason for inflicting torture, the appellant had replied that the son was not his own and also denied the allegations of torture. Asia had repeatedly informed PW-2 of the incident and, in turn, PW-2 reported the matter to the parents of the appellant, who sent Asia with her son to her father's house. About 25 days after Asia left the appellant's house, the father of the appellant asked PW-2 to bring back Asia, whereupon he along with one Abdul Hannan of the same village went to the parent's house of Asia and brought her back. About 25 days after Asia left the appellant's house, the father of the appellant asked PW-2 to bring back Asia, whereupon he along with one Abdul Hannan of the same village went to the parent's house of Asia and brought her back. After fifteen days of return of Asia Begum, one late night he came to learn that the child of Asia was missing. He went to the homestead of Asia Begum at dawn and found Asia weeping. The appellant was not found in the house. Asia related the incident stating that while she was sleeping with her son the appellant snatched him away from the bed and on being asked told her that the child had been taken away by ghost. PW-2 also deposed that in the morning at about 10.30 A.M. he found the appellant loitering near a Mosque. On being asked, appellant told him that the son of Asia had been taken away by ghost. PW-2 also deposed that the appellant could not give any reasonable explanation as to why he had left his house. PW-2 also narrated as to how the dead body of the child was discovered and that he himself saw the child floating in the water near the ghat. Police came, recovered the dead body of the child from the water and had taken it away. He also deposed that at that time the appellant was not present in the house. On cross, PW-2 reiterated that at the time of tracing out the dead body and/or at the time when the Police had reached the place of occurrence, the appellant was not present. He also reiterated the earlier incidents which had been narrated to him by Asia. 6. Dr. Lipi Deb (PW-3) is the Senior Medical and Health Officer of Karimganj Civil Hospital who conducted post-mortem examination of the six month old baby Yaminul Islam on 25.04.2010. Externally, no injury was detected on the body. According to her, death was due to airway obstruction leading to cardio-respiratory period, which was ante-mortem in nature. She proved Exhibit-2, which is the post-mortem report prepared under her signature. On cross, she deposed that sometimes a baby of tender age dies due to carelessness of the mother or due to causing of airway obstruction at the time of sleeping. According to her, death was due to airway obstruction leading to cardio-respiratory period, which was ante-mortem in nature. She proved Exhibit-2, which is the post-mortem report prepared under her signature. On cross, she deposed that sometimes a baby of tender age dies due to carelessness of the mother or due to causing of airway obstruction at the time of sleeping. Mokram Ali Borbhuiya(PW-4) is the Sub Inspector of Police, so entrusted to investigate into the matter, consequent upon receipt of the ejahar from Asia Begum. He deposed that he visited the place of occurrence at about 7.30 P.M. and found the dead body of a baby floating on the pond of the appellant's house. He also deposed that on 23.04.2010 the father of Asia had given a missing entry in respect of his grandson who was missing since the previous night. On the said information, a General Diary entry was made. Thereafter, on being entrusted to enquire into the matter, he had visited the place of occurrence, made search in the house and premises of the appellant but the child could not be found. He also deposed that the appellant was also not to be found in the house during his second visit to the place of occurrence on the same date. He also stated that prior to the second visit it was informed that the child was found floating on the pond. Having visited the place of occurrence, the dead body was lifted out from the pond and brought to the Police Station. Inquest was done and the dead body was sent for post-mortem examination to Karimganj Civil Hospital. PW-4 also deposed that during investigation he recorded the statement of witnesses and that the appellant had surrendered before the Police Station on 14.05.2010, whereupon due arrest was made. On completion of investigation, he submitted Charge Sheet (Ext. 4). On cross, he reiterated the statements made in-chief and also stated that no injury was noticed during the inquest. The dead body was found almost in the middle portion of the pond. He also stated that during the two searches, the appellant was not present in the house. 7. On examination of the appellant under Section 313 Cr.P.C., stand taken is that he had been falsely implicated and that he is innocent. 8. The dead body was found almost in the middle portion of the pond. He also stated that during the two searches, the appellant was not present in the house. 7. On examination of the appellant under Section 313 Cr.P.C., stand taken is that he had been falsely implicated and that he is innocent. 8. Having regard to the evidence on record and the pre and post conduct of the appellant, the learned Court below reached the conclusion that the appellant caused the death of his own baby son and concealed the dead body. It was also held that the prosecution could prove the case against the appellant beyond all reasonable doubt under Section 302/201 I.P.C. As regards the charge under Section 363 I.P.C., the learned Court below found that the offence of alleged kidnapping was closely related to the offence of murder and concealment of the dead body occurring in the same transaction and, therefore, did not hold the appellant separately guilty under Section 363 I.P.C. Conviction and sentence, as alluded to above, was accordingly passed. 9. We have heard Mr. P.P. Dutta, learned Amicus Curiae as well as Mr. M. Phukan, learned Additional Public Prosecutor, Assam. A close scrutiny of the evidence of Asia Begum (PW-1) discloses narration on the character and behaviour of the appellant from the time when the first child (female) was born out of their wedlock. The narration of the female child being found dead on the lap of the appellant and the incidents relating to the appellant attempting to cause harm to the second child (male) i.e. Yaminul Islam, followed by the incident on the night of 21.04.2010 and the mysterious behaviour of the appellant, who is the father of the six month old male child, throws immense light on the state of mind of the appellant. In the evidence of both Asia Begum (PW-1) and Abdul Rouf (PW-2), it has been brought on record that the appellant was not seen to be found in the house after the incident. There is also mutual corroboration of facts relating to the disappearance of the baby Yaminul Islam and that of the conduct of the appellant on the night of the incident. The testimony of PW-1 to the effect that the appellant had told her of a ghost taking away the child, finds due corroboration from the deposition of PW-2. There is also mutual corroboration of facts relating to the disappearance of the baby Yaminul Islam and that of the conduct of the appellant on the night of the incident. The testimony of PW-1 to the effect that the appellant had told her of a ghost taking away the child, finds due corroboration from the deposition of PW-2. The most significant aspect is that the evidence of PW-1 could not be disturbed by the defence on cross. What could be extracted on cross is only in respect of Asia not making mention in the ejahar regarding the past incidents committed by the appellant. Pertinent to observe, an ejahar cannot take the form of an encyclopedia and/or a blow-by-blow account of an incident. 10. There is no dispute as regards the death of the child by airway obstructions and the recovery of the dead body of the child from the pond of the appellant's house. There is also no dispute to the fact that after the disappearance of the child, the appellant along with his two children from his former wife had left the house in the wee hours of the morning. It has come in evidence that on the night of the incident the house door was closed and the appellant and Asia were sleeping in two adjacent rooms with only a partition in between. The probability of the presence of a third party in the house, either to take away the baby or to cause hurt, was absolutely remote. The circumstances surrounding the incident gives rise to the strong probability that the appellant caused the death of the child by causing obstruction to the airways of the baby, having regard to the earlier attempts made by the appellant of causing airway obstruction to the same baby i.e. Yaminul Islam. There is yet another probability that death of the child could have resulted from carelessness and negligence on the part of Asia who might have caused airway obstruction of the six month old baby by way of accident resulting in suffocation. The second probability do not find support from the evidence or record. PW-1 in her deposition stated that when she found that her son was not in the bed, she made search and also had gone to the room of the appellant and found him awake. The second probability do not find support from the evidence or record. PW-1 in her deposition stated that when she found that her son was not in the bed, she made search and also had gone to the room of the appellant and found him awake. The appellant had told her that ghost had taken away the child and thereafter he went off to sleep. As a father, when he was informed by Asia that his baby child was missing, could not have behaved in the manner he did. He made no attempt to search out his son. Had there been any negligence or carelessness on the part of Asia leading to the death of the child, the appellant as the father, would have reacted in a very different manner. There is nothing on record to show any counter reaction made by the appellant when he was informed of his child gone missing. The evidence of Asia, as supported by Abdul Rouf, fortifies the case of the prosecution that the appellant had fostered prolonged ill-intention to cause harm to the baby child Yaminul Islam. The quality of evidence as adduced by Asia and Abdul Rouf lends primacy and absolute credibility to the prosecution case. 11. The evidence brought on record, particularly that of PW-1 and PW-2 read with the post-mortem report, fully establishes and completes the links in the chain of the circumstances leading to only one conclusion that the appellant and the appellant alone is guilty of commission of the offence. Leaving the place of occurrence in the wee hours of the following morning of the incident and the abnormality demonstrated by the appellant in his initial reaction lends credence to the prosecution case. No doubt, the prosecution has to prove the case beyond reasonable doubt but when the prosecution has established all the circumstances connecting the appellant with the crime and in the absence of any cogent explanation, it cannot be said that the conduct of the appellant can be ignored and need not be taken into account. The appellant being the father and being very much present on the date and time of the incident, the facts and circumstances as regards his conduct and behaviour, past and present, itself lends assurance to the evidence of Asia (PW-1) as to the manner of occurrence of the crime. The appellant being the father and being very much present on the date and time of the incident, the facts and circumstances as regards his conduct and behaviour, past and present, itself lends assurance to the evidence of Asia (PW-1) as to the manner of occurrence of the crime. The character of an accused is always relevant in criminal case, so is the evidence as to the state of his mind. It assumes importance in judging innocence or criminality. In the instant case, the criminality on the part of the appellant, stands fully established. 12. From the above discussion based on evidence on record, we hold that the conviction and sentence imposed upon the appellant by the learned Court below do not call for interference. We affirm the judgment and order dated 29.06.2013 passed by the learned Sessions Judge, Karimganj in Sessions Case No. 94/2011. Appeal stands accordingly dismissed.