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2018 DIGILAW 1232 (GAU)

ABDUL HAMID v. STATE OF ASSAM

2018-08-21

AJIT SINGH, MANOJIT BHUYAN

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JUDGMENT : AJIT SINGH, J. 1. The appellant Abdul Hamid 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 victim of the incident was Abiran Nessa, aged about 45 years. She was wife of the appellant. 3. According to the prosecution case, on 28.05.2013, at about 5 a.m., the nephew of appellant -Nuruddin (PW-1) heard cries of children from the house of appellant. So, out of inquisitiveness, he went to the house of appellant and entering inside, he noticed that Abiran Nessa was lying dead on her bed in a pool of blood. Seeing the incident to his horror, he came out of the house and saw the appellant loitering around the house frantically. Nuruddin then caught the appellant and shouted for help. Hearing him other relatives of the appellant, namely, Alauddin (PW-2) and Habibullah (PW-4) (brother of the appellant) as well as some co-villagers came and they together took him to the house of one Rafiqul and confined him there. The brother of Abiran Nessa Saidur Rahman (PW-5) - who resided nearby, also reached the place of occurrence on hearing commotion and found his sister lying dead and the appellant being apprehended and detained by his relatives. 4. Saidur Rahman lodged the First Information Report (Exhibit-1) at Ahomgaon Police Patrolling Post stating inter-alia that the appellant had killed Abiran Nessa by hacking her head with an axe for unknown reasons. On receiving the information, Investigating Officer Tulshi Sarma (PW-7) rushed to the spot and recorded the statements of witnesses. He then got the inquest done, drew Exhibit-2 sketch map, seized the axe from the house of appellant and arrested the appellant. He also sent the dead body of Abiran Nessa for post-mortem examination. 5. Dr. Jugananda Bori (PW-8) conducted the post mortem examination on the dead body of Abiran Nessa. He found one deep lacerated wound with fracture on left temporal and parietal bone size 5''x 4". The doctor opined that she died due to shock and hemorrhage as a result of brain and head injury. His post mortem examination report is Exhibit- 6. On completion of investigation, Tulshi Sarma (PW-7) submitted Exhibit-5 charge-sheet against the appellant. 6. During trial, the appellant abjured his guilt and pleaded false implication. The doctor opined that she died due to shock and hemorrhage as a result of brain and head injury. His post mortem examination report is Exhibit- 6. On completion of investigation, Tulshi Sarma (PW-7) submitted Exhibit-5 charge-sheet against the appellant. 6. During trial, the appellant abjured his guilt and pleaded false implication. But the trial court relying upon the evidence adduced by the prosecution, convicted and sentenced him as aforesaid. 7. It is argued on behalf of the appellant that in the absence of any eye witness, the trial court committed an illegality in convicting him under Section 302 of the Indian Penal Code. It has also been argued that the appellant was suffering from mental illness at the time of occurrence which emerged in the testimony of witnesses, but the trial court did not consider that aspect of the matter entirely as a result of which it committed an error while convicting him. The learned Additional Public Prosecutor, however, supported the conviction and sentence of the appellant. 8. After hearing the learned counsel for the parties and perusing the records, we find that the prosecution could prove the charge against the appellant and he could not explain the incriminating circumstance against him. It is the evidence of Mafida Begum (PW-3)-daughter of the appellant- that when she woke up in the morning she found her mother lying dead on her bed and the appellant was frantically loitering around the house. After sometime, Habibullah came and detained the appellant. Habibullah has also deposed that he came to the house of appellant and found the dead body of Abiran Nessa and appellant was loitering frantically around the house after which he caught him and detained him. Both these two witnesses are relatives of the appellant and had no reason to depose falsely against him. They arrived at the spot immediately after the occurrence and as such there is no probability that any other person could have committed the crime except the appellant. Other witnesses namely Alauddin, Habibullah and Abdul Hekim (PW-6) also deposed that they found the dead body of Abiran Nessa inside the house. 9. 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. Other witnesses namely Alauddin, Habibullah and Abdul Hekim (PW-6) also deposed that they found the dead body of Abiran Nessa inside the house. 9. 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. 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. 10. 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. 11. There is yet another decision of the Supreme Court, State of Rajashthan vs. Kashi Ram, (2007) AIR 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. But, the appellant did not explain as to how Abiran Nessa died under mysterious circumstances inside the house in wee hours. 12. But, the appellant did not explain as to how Abiran Nessa died under mysterious circumstances inside the house in wee hours. 12. Though Nuruddin, Mafida Begum, Habibullah and Abdul Hekim have testified that appellant used to suffer from mental illness for which he was under medical treatment, they neither adduced any documentary evidence to show that appellant was in medication for his mental illness nor any medical document to prove that he was ever hospitalized in any mental hospital for his treatment. No material is also produced to show that at the time of occurrence, appellant was suffering from his mental illness. He did not even explain as such during his statement recorded under Section 313 of the Code of Criminal procedure. Therefore, there is nothing on record to even remotely suggest that the appellant was suffering from any mental illness at the time of occurrence and he committed the crime as a result of such mental illness. Besides, it is no more res-integra that the fact of suffering from general or recurring mental illness is not a plea for defence in a criminal offence, until and unless, it is strictly proved that he was suffering from that illness exactly at the time of commission of that particular offence. We also obtained a report from the Medical & Health officer of Central Jail, Nagaon, regarding the mental health of the appellant and vide report dated 20.08.2018, it has been reported that the appellant has been found to be mentally fit on examination and he has never shown any kind of abnormality in jail. 13. We, therefore, having regard to the above referred decisions of the Supreme Court as well as the evidence of the prosecution vis--vis the medical report abovementioned, find ourselves in complete agreement with the finding of the trial court that appellant is the sole perpetrator of the crime. 14. For these reasons, we find no merit in this appeal and it is accordingly dismissed.