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2017 DIGILAW 1336 (GAU)

Sahjahan Ali S/O- Sikim Ali v. State of Assam

2017-10-23

HITESH KUMAR SARMA

body2017
JUDGMENT AND ORDER : 1. This Criminal Appeal (J) No. 25/2014, has been preferred by accused appellant Sahjahan Ali, against the judgment and order dated 11.12.2013 in Session Case No. 102/2011 passed by the learned Sessions Judge, Barpeta, convicting and sentencing the appellant for rigorous imprisonment for 10 years and with fine of Rs 4000, in default to undergo imprisonment for four months, for the offence under Section 304 (Part I) IPC. 2. The fact leading to this appeal may be summarised as follows; 3. On 7.9.2009, one Md. Meser AIi lodged a written FIR before the Officer in Charge, Sarthebari Police Station, alleging that his daughter Arti Begum was given in marriage to accused Sahjahan Ali about 3 years back. The informant further alleged, that soon after her marriage with the accused Sahjahan Ali, his daughter was tortured physically and mentally by her husband Sahjahan Ali, her brothers-in-law Mukut Ali and Raju Ali and by her mother-in-law Kabijan Begum in pursuant to their dowry demands. He also alleged that on the intervening night of 6.9.2009 and 7.9.2009 accused Sahjahan Ali killed his daughter Arti Begum inflicting dao blow on her neck. 4. On receipt of the FIR, Sarthebari Police Station Case No. 87/2009, under Section 304B of Indian Penal Code (IPC) was registered. Upon conclusion of the investigation a chargesheet was laid against accused Sahjahan Ali, Mukut Ali, Raju Ali and Kabijan Begum for offences under Section 302/304B/34 IPC. 5. The offences being triable exclusively by the Court of Session, the learned Chief Judicial Magistrate, Barpeta, committed the case to the Court of Session. After hearing the prosecution and the defence, charges under Section 304B/302/34 IPC were framed against all the chargesheeted accused persons to which they pleaded not guilty and claimed to be tried. 6. In order to substantiate the charges prosecution examined 19 witnesses including the Medical Officer, the Investigating Officer and the Forensic Expert. At the closure of prosecution evidence all the incriminating materials, as required under Section 313 CrPC, were put to the accused persons. The plea of the accused persons Raju Ali, Mukut Ali and Kabijan Begum was of total denial and they also declined to adduce any defence evidence. The accused appellant, however, admitted his guilt and declined to adduce any evidence in his defence. 7. The plea of the accused persons Raju Ali, Mukut Ali and Kabijan Begum was of total denial and they also declined to adduce any defence evidence. The accused appellant, however, admitted his guilt and declined to adduce any evidence in his defence. 7. After hearing the arguments the learned Sessions Judge, Barpeta, delivered the judgment whereby accused Raju Ali, Mukut Ali and Kabijan Begum were acquitted of all the charges whereas the accused appellant though acquitted of the charge under Section 304B IPC but was convicted for the offence under Section 304 (Part-I) IPC. 8. It may be pointed out here that State has not preferred any appeal against the acquittal of the other accused for the charge under Section 304B IPC nor has the State preferred any appeal against the conversion of offence from Section 302 IPC to Section 304 (Part-I) IPC so far as the accused appellant is concerned. The adjudication of this appeal, thus, would be limited only to the question of legality of conviction of the accused appellant and the sentence awarded to him for the offence under Section 304 (Part-I) IPC. 9. I have heard the learned Amicus Curiae Ms. B Sarma appearing for the appellant and also the learned Addl Public Prosecutor appearing for the State respondent. 10. I have also gone through trial court record including the evidence tendered by the prosecution. 11. The chronology of the events leading to the conviction of the appellant, as could be understood from the materials on record, starts from his appearance before the Daulasal Police Out Post on 7.9.2009, along with a dao, and making a voluntary statement that he had killed his wife by the dao which he had produced. In this regard the relevant evidence may be looked into. 12. Pw 8, Phulendra Patgiri, S.I of Police, Pw 12, Sri Uttam Barman, Pw 13, Sri Sachindra Barman, Constable of police, Pw 18, Chabin Koibarta, Homeguard, pw 19, Lalchand Sikdar, S.I. of Police were all posted at Daulasal Police O.P when the accused appellant appeared in the said Out post. The evidence of all these witnesses is categorical to the point that on 7.9.2009, at about 2 p.m, accused appellant voluntarily appeared in the police out post along with one dao and disclosed that he had ripped the neck of his wife with the dao as a consequence whereof his wife died. The evidence of all these witnesses is categorical to the point that on 7.9.2009, at about 2 p.m, accused appellant voluntarily appeared in the police out post along with one dao and disclosed that he had ripped the neck of his wife with the dao as a consequence whereof his wife died. The accused was then taken into custody and the dao was seized. 13. The question is whether the evidence of PW 8, PW 12, PW 13, PW 18, PW 19 can be treated to be relevant and admissible in evidence. 14. In the case of Aghnoo Nagesia Vs. State of Bihar (AIR 1996 SC 119), the Hon’ble Supreme Court, in a similar factual scenario, had held as follows; "the first information report recorded under S. 154 Cr.P.C. as such is not substantive evidence, but may be used to corroborate the informant under section 157 of the Evidence Act or to contradict him under Section 145 of the Act, if the informant is called as a witness, where the accused himself gives the first information the fact of his giving the information is admissible against him as evidence of his conduct under Section 8 of the Evidence Act. If the information is non-confessional, it is admissible against the accused as an admission under Section 21 of the Evidence Act and is relevant. But a confessional first information report by the accused to a police officer cannot be used against him in view of Section 25 of the Evidence Act. Where the first information report is given by the accused to a police officer and amounts to a confessional statements proof of the confession is prohibited by Section 25. The confession includes not only the admission of the offence, but all other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of Section 25 is lifted by Section 27. The test of severability, namely that if a part of the report is properly severable from the strict confessional part. No part of the confessional statement is receivable in evidence except to the extent that the ban of Section 25 is lifted by Section 27. The test of severability, namely that if a part of the report is properly severable from the strict confessional part. Then the severable part could be tendered in evidence is misleading and the entire confessional statement is hit by Section 25 and save and except as provided by Section 27 and save and except the formal part identifying the accused as the maker of the report, no part of it could be tendered in evidence." 15. In view of the law laid down in Aghnoo Nagesia (supra), the deposition of the witnesses pw 8, pw 12, pw 13, pw 18, pw 19 that the accused confessed his guilt, about killing his wife with a dao, may not be admissible in evidence because such a statement is hit by Section 25 of the Evidence Act. However, the fact that, in pursuant to the statement made by the accused, the weapon of offence, the dao, was recovered and the dead body of the deceased at the residence of accused appellant, was recovered is relevant under Sections 8 and 27 of the Evidence Act as explaining the conduct and state of mind of accused and also the discovery of the fact that the dead body of Arti Begum was found in the residence of accused person. It may be pointed out at this juncture that the seized dao was sent for Serological examination at Forensic Science Laboratory. The Serological report, Ext 4, revealed that blood stains found in dao matched the blood samples of the deceased. Thus, it is established that weapon of offence, the dao, was found in the possession of accused, the dead body of the deceased Arti Begum was recovered on the statement of accused, and the blood stains found in the dao matched the blood samples of deceased. 16. Pw 1, Meser Ali, the father of deceased, deposed that the marital life of her daughter, in the society of accused appellant Sahjahan Ali, was not peaceful. He deposed that accused person used to torture his daughter in pursuant to dowry demands. On one occasion, pw 1 also paid an amount of Rs 40,000 to the accused appellant. 16. Pw 1, Meser Ali, the father of deceased, deposed that the marital life of her daughter, in the society of accused appellant Sahjahan Ali, was not peaceful. He deposed that accused person used to torture his daughter in pursuant to dowry demands. On one occasion, pw 1 also paid an amount of Rs 40,000 to the accused appellant. Unable to bear repeated torture, his daughter had also filed a case under Section 498A IPC but the case was settled as the accused promised to maintain a peaceful relationship with his daughter. Pw 1 also deposed that on one occasion his daughter, the deceased, was tied with a rope and thrown in a ditch. 17. The evidence of pw 2, Sabjan Nessa, the mother of the deceased, amply corroborates the testimony of pw 1, Meser Ali, in terms of dowry demands and consistent physical and mental tortures meted out to the deceased by the accused appellant. 18. The evidence of pw 1, Meser Ali and pw 2, Sabjan Nessa is another set of circumstantial evidence. The evidence of these two witnesses reveals that prior to the death of Arti Begum she was mentally and physically tortured by the accused husband. The evidence of these two witnesses also reveal that the martial life of the deceased was not peaceful at any point of time and in order to pacify the accused and with a view to ensure a peaceful marital life of deceased an amount of Rs 40,000 was also paid by pw 1 to the accused. The evidence of pw 1 and pw 2 explains the motive behind the act of the accused person in committing the act of killing his wife. 19. The other set of evidence is admission made by the accused appellant during his examination under Section 313 CrPC. As against the question No. 3 put to the accused Sahjahan Ali he replied as follows; I never demanded dowry. But on the date of the incident I struck on the neck of my wife with a dao as she quarrelled with me and as a result of which she succumbed to her injuries and then I surrendered before the police alongwith the dao. 20. It may be mentioned that this is not the lone admission of the accused. But on the date of the incident I struck on the neck of my wife with a dao as she quarrelled with me and as a result of which she succumbed to her injuries and then I surrendered before the police alongwith the dao. 20. It may be mentioned that this is not the lone admission of the accused. Infact, the accused has made similar admissions while replying to the question No. 5, 8, 10, 11, 13 and 15 in his examination under Section 313 CrPC. Thus, the admission of guilt by the accused is unequivocal and suffers from no ambiguity. 21. In the case of State of Maharashtra Vs Sukhdev Singh and another, reported in (1992) 3 SCC 700 , the Hon’ble Supreme Court considered the issue as to whether a statement recorded under Section 313 of the CrPC can constitute the sole basis for conviction. The Hon’ble Supreme Court in Sukhdev Singh (supra), held that since no oath is administered to the accused, the statements made by the accused will not be evidence stricto sensu. That is why subsection (3) of Section 313 CrPC says that the accused shall not render himself liable to punishment if he gives false answer. The Hon’ble Supreme Court further held that under Section 313(4) of the CrPC it is provided that the answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. 22. The relevant observation of the Hon’ble Supreme Court in Sukhdev Singh (supra), is reproduced as follows: "51. That brings us to the question whether such a statement recorded under Section 313 of the code can constitute the sole basis for conviction. Since no oath is administered to the accused, the statements made by the accused will not be evidence stricto sensu. That is why subsection (3) says that the accused shall not render himself liable to punishment if he give false answer. Since no oath is administered to the accused, the statements made by the accused will not be evidence stricto sensu. That is why subsection (3) says that the accused shall not render himself liable to punishment if he give false answer. Then comes sub-section (4) which reads : "313 (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.” 23. In Narain Singh v. State of Punjab (1964) 1 Cri LJ 730) the Hon’ble Supreme Court held that if the accused confesses to the commission of the offence with which he is charged the Court may, relying upon that confession, proceed to convict him. The relevant observations, in this regard, are reproduced as follows; "under Section 342 of the Code of Criminal procedure by the first sub-section, insofar as it is material, the Court may at any stage of the enquiry or trial and after the witnesses for the prosecution have been examined and before the accused is called upon for his defence shall put questions to the accused person for the purpose of enabling him to explain any circumstance appearing in the evidence against him. Examination under Section 342 is primarily to be directed to those matters on which evidence has been led for the prosecution to ascertain from the accused his version or explanation - if any, of the incident which forms the subject-matter of the charge and his defence. By sub-section (3), the answers given by the accused may 'be taken into consideration' at the enquiry or the trial. If the accused person in his examination under section 342 confesses to the commission of the offence charged against him the court may, relying upon that confession, proceed to convict him, but if he does not confess and explaining circumstance appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirely." 24. In the present case the accused appellant has made unequivocal admissions in his examination under Section 313 CrPC not once but on several occasions that he had killed his wife with a dao. In the present case the accused appellant has made unequivocal admissions in his examination under Section 313 CrPC not once but on several occasions that he had killed his wife with a dao. This admission of the accused when taken together with the other circumstances proved by the prosecution, as discussed hereinbefore, establishes the following facts; i. That, the accused appellant was having a strained relationship with deceased Arti Begum ii. That, the deceased was, according to the evidence of pw 1 and pw 2, subjected to mental and physical tortures in pursuant to the dowry demands of accused appellant. iii. That, the accused voluntarily appeared before the police station with the dao. iv. That, the dao was seized from the possession of accused, vide Ext 7, seizure list v. That, the blood stains in the dao matched the blood samples of deceased Arti Begum as per Forensic Report, Ext 4. vi. That, the accused, in his examination under Section 313 CrPC, admitted to have killed his wife with the dao found in his possession. 25. All these circumstances, when taken together, unerringly point towards the fact that accused was driven by the motive to end the life of his wife because of strained relationship and actuated by such motive none but he killed his wife with the dao. The chain of circumstances is complete in all aspects and the guilt of the accused appellant is established beyond all reasonable doubt. 26. In this regard I have perused the impugned judgment and find that the learned Sessions Judge has appreciated the evidence in correct perspective and arrived at a proper conclusion. 27. In view the discussions held hereinbefore, no interference with the impugned judgment, in terms of findings as to guilt or of the sentence awarded, is called for. 28. The appeal stands dismissed. 29. Send down the LCR with a copy of this judgment. 30. This Court appreciates the assistance rendered by the learned Amicus Curiae and directs that an amount of Rs 7000/- be paid to the learned Amicus Curiae as honorarium in acknowledgment of the assistance rendered by them.