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2017 DIGILAW 847 (GAU)

Abdul Khalique S/o Abdul Bari v. State of Assam

2017-06-28

PRASANTA KUMAR DEKA

body2017
JUDGMENT AND ORDER : 1. Heard Mr. B.N. Gogoi, learned Amicus Curiae, appearing on behalf of the appellant and Mr. B.B. Gogoi, learned Additional Public Prosecutor, appearing for the State of Assam. 2. This appeal has been preferred by the present appellant who was convicted under Section 304 Part-II IPC and sentenced to undergo for 7 (seven) years rigorous imprisonment and fine of Rs. 5,000.00 (Rupees five thousand) in default 6 (six) months R.I. for the offence under Section 304 (Part-II) IPC. 3. The facts of the case is that one Sikandar Ali of village Routhgram P.S. Ratabari lodged an FIR on 6.8.2007 at Kaliganj Watch Post stating the facts as follows-Imrana Begum daughter of the informant Sikandar Ali was married to one Faizur Rahman. Faizur Rahman stays in Aizawl in connection with his work. During absence of her husband the above named accused persons tortured Imrana. The brother-in-law of Imrana pressed her for establishing sexual relationship with him and tortured her for that reason. Imrana reported that matter to the informant and other family members. Once when Imarna came to ‘naiyor’ then the accused person also came to the house of the informant and after assuring that they would not torture Imrana any more took Imrana back to their house. But thereafter also the accused person tortured Imrana on the demand of dowry. On 6.8.2007 at around 12 noon one Abdul Rahim went to the house of the informant and reported that Imrana had committed suicide by hanging in a tree. On receipt of the information Sikandar Ali and others went to the father-in-law’s house of Imrana and saw the dead body of Imrana lying on the ground in a jungle like area adjacent to the house. They did not find any sign of hanging on the body of Imrana. Rather on different parts of the body of Imrana there were injury marks. 4. On receipt of the FIR, a GD Entry vide No. 77 dated 6.8.2007 was made at Kaliganj Watch Post and the said FIR was forwarded to Karimganj P.S. where a case was registered vide Karimganj P.S. Case No. 339/2007 under Section 498 (A)/ 304(B) IPC. The police started investigation. During the course of investigation, inquest and Post Mortem Examination were done on the dead body of the deceased. The Investigating Officer visited the place of occurrence and prepared a sketch map. The police started investigation. During the course of investigation, inquest and Post Mortem Examination were done on the dead body of the deceased. The Investigating Officer visited the place of occurrence and prepared a sketch map. He also recorded the statements of the witness. Subsequently, after completion of investigation charge sheet was submitted against accused Abdul Khalique, Rehan Uddin, Kushrun Bibi and Sofia Begum under Section 498(A)/304 (B) IPC. 5. The offence under Section 304 (B) IPC being exclusively triable by the court of Sessions, the learned Chief Judicial Magistrate, Karimganj committed the case to the court of Hon’ble Sessions Judge. Subsequently, the case was transferred to this court and formal charges under Section 498(A)/304(B)/302/34 IPC were framed against the accused persons. The charges were read over and explained, all the accused persons pleaded not guilty and claimed for trial. 6. The accused persons Rehan Uddin, Khusrun Bibi and Sofia Begum were not found guilty and they were acquitted from the charges and accused/ appellant Abdul Khalique was found guilty under Section 304 (Pt-II) of IPC and sentenced with 7 (seven) years rigorous imprisonment and with fine of Rs. 5,000/- (Rupees five thousand) only in default 6 (six) months R.I. under Section 304 (Pt-II) of IPC. 7. Being aggrieved, the present appeal is preferred by the appellant from jail. 8. Mr. B.N. Gogoi, learned Amicus Curiae, appearing on behalf of the appellant submits that the conviction of the appellant is merely on the basis of the confessional statement wherein the appellant confessed that on 6.8.2007 he asked for water from his sister-in-law i.e. the deceased Imrana Begum and while serving a glass of water in the table she scolded the appellant with filthy language and on the heat of passion he could not control his anger and dealt a blow on her head with a two battery torchlight lying nearby. Accordingly, she fell down on the ground, immediately thereafter she died. 9. It is also submitted that the sketch map shows that the dead body of the deceased was recovered outside the house beneath a tree. The learned trial court after considering the evidence of the various witnesses came to the finding that it has been established beyond all reasonable doubt that the accused (appellant) Abdul Khalique struck a blow on the head of deceased Imrana Begum by means of torchlight and as a result Imrana Begum died. The learned trial court after considering the evidence of the various witnesses came to the finding that it has been established beyond all reasonable doubt that the accused (appellant) Abdul Khalique struck a blow on the head of deceased Imrana Begum by means of torchlight and as a result Imrana Begum died. The learned trial court also held that the confessional statement of the appellant was made voluntarily without any inducement or threat and it was recorded by the Magistrate after following the requisite due procedure of law. The learned court below considered that the appellant struck the blow on the head of the deceased not with intention to kill her rather in the heat of passion, the appellant hit Imrana Begum with a torchlight. The learned trial court accordingly convicted the appellant for the offence of culpable homicide, not amounting to murder. 10. Mr. B.N. Gogoi further submits that the prosecution failed to establish various injuries on the body of the deceased and as such the conviction of the appellant by the learned trial court and the reason of death of the deceased is not beyond any reasonable doubt. Further Mr. Gogoi submits that a duty was cast upon the prosecution side at least to verify and come to the conclusive finding as to how the injuries occurred on her body. Having not done so, the finding of the learned court below cannot be considered to be proper and beyond all reasonable doubt, so he prays for setting aside the judgment of conviction and sentence awarded against the present appellant. 11. Mr. B.B. Gogoi, learned Addl. Public Prosecutor, Assam on the other hand submits that there is nothing to show that there is failure on the part of the prosecution in proving the cause of the death of the deceased beyond any reasonable doubt. Mr. 11. Mr. B.B. Gogoi, learned Addl. Public Prosecutor, Assam on the other hand submits that there is nothing to show that there is failure on the part of the prosecution in proving the cause of the death of the deceased beyond any reasonable doubt. Mr. Gogoi submits that the confessional statement is recorded as per law and PW-10 who recorded the statement has adhered to the rules prescribed by the law and within the parameters of Section 164 of the Cr.P.C. The confessional statement is made on the own volition of the appellant and there is nothing wrong in considering the said confessional statement and subsequent corroboration with respect to injuries as per the post-mortem report wherein it has been specifically mentioned that in the opinion of the doctor, the deceased died due to head injury leading to cardio respiratory failure which is ante- mortem in nature. 12. Mr. B.B. Gogoi also submits that as the learned trial court considered the voluntary statement on its full face value, under such circumstances, the learned trial court is correct in holding that the appellant is liable to be convicted for the offence of culpable homicide not amounting to murder inasmuch as it was held by the learned trial court that he hit the deceased with torchlight in the heat of passion. Accordingly Mr. Gogol submits that there is no requirement of any interference by this court in the present appeal. 13. Mr. B.B. Gogoi also going through the record further submits that the appellant has already completed the sentence inasmuch as he was arrested on 8.8.2007 and as per the record he was in jail hajot during the pendency of the trial and the trial court has directed the period of hajot to be set off. In such a situation, the appellant has already completed the sentence and there is no further necessity keeping the said appellant behind the bar. 14. Considered the submissions of both the learned counsels. This court do not find any wrong in the findings of the trial court. However, as submitted by the learned counsels that he has already undergone the sentence so awarded, he be released immediately on receipt of the copy of the order of this judgment. However, it is specifically mentioned that this court has not find any wrong in passing the judgment and conviction. 15. Mr. However, as submitted by the learned counsels that he has already undergone the sentence so awarded, he be released immediately on receipt of the copy of the order of this judgment. However, it is specifically mentioned that this court has not find any wrong in passing the judgment and conviction. 15. Mr. B.N. Gogoi, learned Amicjus Curiae has rendered his valuable assistance while conducting this appeal and as such a sum of Rs. 7,500.00 be paid to him as his professional fees by the Assam State Legal Services Authorities. 16. Accordingly, this appeal is disposed of. Send back the LCR.