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2017 DIGILAW 191 (GAU)

Maherun Nessa v. State of Assam

2017-02-10

AJIT SINGH, MANOJIT BHUYAN

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JUDGMENT AND ORDER : Ajit Singh, J. The sole appellant Mst. Maherun Nessa has been convicted under Section 302 of Indian Penal Code and sentenced to imprisonment for life and fine of Rs.2000/- with default stipulation. 2. The victim of incident was Julfikar, aged about 45 years. 3. According to the prosecution case, Julfikar was husband of the appellant. Both of them lived together in a rented one room house of Alhaz Auyb Ali (PW-2) situated at Mangaldoi Town, District Darrang. And, on 12.8.2010, around 2.30 p.m., the appellant strangulated Julfikar to death with a silk rope inside their house. She then left the house after locking the door from outside and returned after about one hour. On her return, she opened the door and started crying whereafter she confessed having killed Julfikar. Md. Eusuf Ali (PW-1), who is son of Alhaz Auyb Ali, made ejahar exhibit 2 against the appellant at Police Station Mangaldoi. Investigating Officer – Dewan Wahidul Islam (PW-5) on receiving information, rushed to the house of appellant. There, he found the dead body of Julfikar lying on a bed. He then prepared inquest report exhibit 3 of the dead body and seized one silk rope lying nearby. Seizure of silk rope is exhibit 1. He also recorded the statements of witnesses and sent the body for post mortem examination. 4. Dr. Prasanta Goswami (PW-6) conducted the post mortem examination on the dead body. He found one transverse ligature mark completely encircling the neck crossing over the larynx. The ligature mark was more deep and dark on right side of the neck with severe engorgement of tissue with congestion. On the left side of neck also abrasion of ligature mark was seen. The doctor in his post mortem examination report exhibit-5 opined that Julfikar died due to asphyxia as a result of strangulation. 5. Investigating Officer-Dewan Wahidul Islam arrested the appellant on being produced by Alhaz Auyb Ali and Md. Eusuf Ali and thereafter, filed charge-sheet against her for an offence punishable under Section 302 of the Indian Penal Code. 6. During trial, the appellant abjured her guilt and pleaded false implication. But the trial court, relying upon the evidence adduced by the prosecution, convicted and sentenced her, as aforesaid. 7. Eusuf Ali and thereafter, filed charge-sheet against her for an offence punishable under Section 302 of the Indian Penal Code. 6. During trial, the appellant abjured her guilt and pleaded false implication. But the trial court, relying upon the evidence adduced by the prosecution, convicted and sentenced her, as aforesaid. 7. It is argued on behalf of the appellant that the trial court committed an illegality in convicting her, despite there being no reliable and cogent evidence to connect her with the commission of crime. The learned Additional Public Prosecutor, on the other hand, has defended the conviction and sentence of the appellant, as passed by the trial court. 8. Admittedly, there is no eye witness to the incident and the entire case of prosecution is based on circumstantial evidence. And the trial court convicted the appellant on the following circumstances: i) The appellant was living together with Julfikar in a house where his dead body was found lying on bed; ii) The death of Julfikar was homicidal due to strangulation with a silk rope; iii) The appellant was seen leaving the house after locking the door and when she returned after half an hour, she re-opened the door and started crying. iv) The appellant while crying confessed that she had killed Julfikar; v) The appellant offered no explanation regarding the homicidal death of Julfikar; 9. It is well settled that in a case of circumstantial evidence, the prosecution must establish all the circumstances by independent evidence and the circumstances so established must form a complete chain in proof of guilt of the accused beyond reasonable doubts. The circumstances so proved must also be consistent only with the guilt of accused. 10. It is true that the appellant and Julfikar lived together in a rented one room house. But it is also to be seen whether there is reliable evidence to believe that she left the house leaving his dead body inside after locking the door from outside and on her return, after one hour, she opened the door and body was found. And to prove this circumstance, the prosecution has examined Md. Eusuf Ali and his father Alhaz Auyb Ali. According to the evidence of Md. Eusuf Ali, the appellant had left her house after locking the door from outside and when she returned, after one hour, she opened the door and started crying. And to prove this circumstance, the prosecution has examined Md. Eusuf Ali and his father Alhaz Auyb Ali. According to the evidence of Md. Eusuf Ali, the appellant had left her house after locking the door from outside and when she returned, after one hour, she opened the door and started crying. This witness also says that when his wife came and asked the appellant about Julfikar, she disclosed that she had killed him. On scanning the evidence of Md. Eusuf Ali, we find that he has nowhere stated that he himself saw the appellant leaving the house after locking the door and that he also saw her returning after half an hour. His evidence therefore does not help the prosecution. Alhaz Auyb Ali says that on the next morning of the date of incident, he saw the appellant standing in the verandah of room and on his asking about Julfikar, she informed that he had gone out for marketing. He then says that after an hour, he saw the appellant leaving the room at around 9 a.m. and he came to know that Julfikar was dead. He further says that in the meantime, neighbouring people had gathered at the house and when the appellant returned, the public opened the door and dead body of Julfikar was found lying on a bed. Alhaz Auyb Ali in his entire evidence has nowhere stated that he saw the appellant leaving the house after locking the door from outside. He also does not say that he had kept an eye on the room till the appellant returned. There is even no evidence to suggest that Julfikar was in the house when the appellant went out. The prosecution has thus grossly failed to prove that appellant had left the house after locking the door leaving the dead body of Julfikar inside. And the trial court, in our considered opinion, ought not to have relied upon this circumstance against the appellant. In the fact situation of the case, the possibility of Julfikar returning home in the absence of appellant and being strangulated by a third person cannot be ruled out. 11. The next circumstance against the appellant is of her making confession about killing Julfikar. According to the evidence of Md. Eusuf Ali, the appellant had confessed that she killed Julfikar on the asking of his wife. 11. The next circumstance against the appellant is of her making confession about killing Julfikar. According to the evidence of Md. Eusuf Ali, the appellant had confessed that she killed Julfikar on the asking of his wife. He further says that when police came, the appellant again confessed before the gathering in the presence of police. Alhaz Auyb Ali has testified that the appellant had confessed on being asked by the public. Eusuf Ali does not claim that appellant had confessed before him. On the contrary, he says that confession was made to his wife on her asking and the prosecution has not examined the wife. As regards the confession made to public, Alhaz Auyb Ali in his cross examination has admitted that appellant was compelled to confess at the instance of son of one Ahmed Ali. Even otherwise, the confession made to public, in the presence of police, is inadmissible in evidence. Thus even this circumstance has not really been proved against the appellant. 12. The appellant had herself discovered the dead body of Julfikar in her house after she returned and that too in the presence of large gathering. It was therefore not possible for her to offer any explanation regarding his death. Hence this circumstance was wrongly taken into consideration by the trial court against her. 13. Besides this, it is difficult to believe that appellant being a woman would have single handedly strangulated full-grown able bodied man like Julfikar to death with a silk rope specifically when there is no evidence to suggest that he was either weak or unconscious at the time of incident. 14. For these reasons, we are unable to agree with the finding of the trial court that appellant committed the murder of Julfikar. The conviction and sentence of the appellant are accordingly set aside. She is reportedly in jail and she be released forthwith, if not wanted in connection with any other cases. The appeal is allowed.