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2018 DIGILAW 1636 (GAU)

Afzal Hussain Laskar @ Jakir v. State of Assam

2018-11-22

HITESH KUMAR SARMA, MIR ALFAZ ALI

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JUDGMENT : H.K. Sarma, J. This Criminal Appeal has been preferred from jail by appellant, Sri Afzal Hussain Laskar @ Jakir, against the judgment, dated 30.04.2016, passed by learned Sessions Judge, Cachar, Silchar, in Sessions Case No. 133/2009 convicting the appellant for offence under Sections 302/201 of Indian Penal Code and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000/-, in default, to suffer further rigorous imprisonment for 2 (two) months under Section 302 of the IPC and rigorous imprisonment for 6 (six) months and to pay a fine of Rs. 1,000/-, in default, to suffer further rigorous imprisonment for 1 (one) month under Section 201 of the IPC. Both the sentences were ordered to run concurrently. 2. The fact of the prosecution case is that the deceased, Rushanara Begum was married to the accused-appellant and within 3 (three) years of their marriage, she died in mysterious circumstances. An allegation is made that it was the accused-appellant, who committed murder of the deceased which was preceded by demand for dowry and also cruelty meted out to the deceased. The deceased also intermittently left the house of her husband/accused-appellant and stayed in her parental home due to inability to withstand the cruelty meted out to her by the accused-appellant. 3. On receipt of the FIR, the Lakhipur Police Station registered a case, being No. 146/2009 under Section 304-B of the IPC, investigated into it, collected evidence, got inquest as well as post-mortem examination of the dead body done, and finally, submitted charge-sheet against the accused-appellant under Sections 302/201 of the IPC. 4. After exhausting all the required legal formalities, the case came up before the learned Sessions Judge, Cachar, Silchar for trial, who had framed a formal charge against the accused-appellant under Sections 302/201 of the IPC. The accused-appellant pleaded innocence to the charge framed against him. Therefore, the trial commenced. 5. In this case, the prosecution examined as many as 7 (seven) witnesses, including the Medical Officer and the Investigating Police Officer. The defence examined 4 (four) witnesses. 6. After closure of the prosecution evidence, the statement of the accused-appellant was recorded under Section 313 of the CrPC and he is heard denying the allegations made against him in his such statement. Thereafter, the defence examined 4 (four) witnesses, as indicated above. 7. The defence examined 4 (four) witnesses. 6. After closure of the prosecution evidence, the statement of the accused-appellant was recorded under Section 313 of the CrPC and he is heard denying the allegations made against him in his such statement. Thereafter, the defence examined 4 (four) witnesses, as indicated above. 7. The defence plea is total denial with a further plea that at the relevant time of death of the deceased, the accused-appellant was working in his own agricultural field. Such statement of the accused-appellant means that he has taken the plea that he was not at his home and as such, in effect, he has taken the plea of alibi. 8. Heard Mr. L.R. Mazumder, learned counsel for the accused-appellant as well as Mr. M. Phukan, learned Additional Public Prosecutor, appearing for the State of Assam. 9. We have perused the record of the learned trial court, including the evidence and the impugned judgment. 10. Before proceeding to discuss the evidence of non-official witnesses, it would be convenient to discuss the evidence of Medical Officer, examined, as PW6, who performed the post-mortem examination of the dead body of the deceased. On examination of the dead body of the deceased, he found as follows:- “The deceased was found wearing a blouse, a saree and a petticoat, built was average, complexion swarthy, rigor mortis passed off from upper limbs but was present on lower limbs. Both eyes were found congested and showed patechial haemorrhages. Blood tinged frothy discharged from mouth and nostrils. In the neck, a continuous ligature mark of width 2 cm. completely surrounding the neck in the upper part just above the level of cricoid cartilage. The mark is more broad at the posterior side of neck. The part of neck above the ligature mark anteriorly showed diffused bluish bruise. Floor of the mark showed pressure abression with parchmentised appearance. On dissection, tissues under the ligature mark dried and hardened. Tissues above the ligature mark contused anteriorly. Rest of the part of the neck found healthy. Visceral organs and brain found congested.” He also opined that due asphyxia resulting from the ligature strangulation, which was ante-mortem and homicidal in nature. 11. The strangulation, indicated by the PW6 in his report makes it clear that the assailant has put pressure on the neck of the deceased leading to her death. Visceral organs and brain found congested.” He also opined that due asphyxia resulting from the ligature strangulation, which was ante-mortem and homicidal in nature. 11. The strangulation, indicated by the PW6 in his report makes it clear that the assailant has put pressure on the neck of the deceased leading to her death. Therefore, there is no doubt that the deceased died a homicidal death. Now, it has to be decided as to who caused the death of the deceased. 12. The evidence of the prosecution witnesses, taken cumulatively, makes it appear that they relied upon the following circumstances to rope the accused with the commission of the offence, i.e., murder of his wife-deceased. i. That the death of the deceased occurred within 3 (three) years of their marriage. ii. That before the death of the deceased and after about 2 (two) months of their marriage, the accused-appellant subjected the deceased to torture demanding dowry from her. iii. That the deceased left the house of the accused-appellant to stay in her father’s house several time, leaving her matrimonial home, to protect herself from the cruelty meted out to her by the accused-appellant. iv. That the accused-appellant had on several occasion taken her back from her parental home assuring that she would not be tortured any further. v. That on 29.05.2009, she was taken back with such an assurance again. But her dead body was found in the river nearby her matrimonial home on 31.05.2009. 13. The prosecution also relied upon the fact that the defence tried to stage a story of death of the deceased by drowning which has been ruled out by the medical evidence stating that it was a death caused by strangulation. 14. But, on perusal of the defence evidence of 4 (four) defence witnesses; it is found that they have all stated that the accused-appellant was in the agricultural field at the relevant time when the dead body was recovered. 15. On perusal of the entire evidence on record, it appears that on 29.05.2009, the deceased was taken back by the accused-appellant to stay with him and the dead body was found on 31.05.2009, after a gap of one day in between. There is no evidence at all to indicate, even remotely, that the accused-appellant and the deceased was last seen together. There is no evidence at all to indicate, even remotely, that the accused-appellant and the deceased was last seen together. There is also no evidence that any other person was present in her matrimonial home, apart from the deceased herself and her husband. But, it is not the evidence of the prosecution that the accused-appellant was present in his house with the deceased at any point of time, after 29.05.2009 and till recovery of her dead body on 31.05.2009. 16. Mr. Phukan, learned Additional Public Prosecutor, has submitted that since the defence has taken the plea of alibi, it is the burden of the accused-appellant to establish the same. But, the cardinal principle of criminal jurisprudence is that the burden of proof in a criminal trial is always upon the prosecution and only when the prosecution discharges such burden, the burden is shifted to the defence to disprove the same. 17. In the instant case, availability or non-availability of the accused-appellant in his house with the deceased at the relevant time of occurrence and in the absence of specific evidence to that effect, it is difficult to hold that they were together at the time of occurrence and the accused-appellant committed the murder of the deceased. The above circumstances relied upon by the prosecution do not appear to inspire confidence to hold that it was none but the accused-appellant who committed the crime. The last seen together theory is also not applicable in the instant case in the absence of evidence to that effect. 18. That apart, some of the circumstances relied upon by the prosecution appears to be in respect of offence under Section 304-B of the IPC although this court is dealing with an appeal against a judgment of conviction under Section 302 of the IPC only. The charge was framed against the accused-appellant under Section 302 of the IPC and he faced the trial for that offence only. 19. Whatever it may be, in view of the above discussions, in the absence of any direct evidence and also in the absence of circumstantial evidence linking the accused-appellant with the commission of the alleged offence, this court is inclined to interfere with the judgment of the learned trial court convicting and sentencing the accused-appellant under Sections 302/201 of the IPC. 20. Accordingly, this criminal jail appeal stands allowed. 20. Accordingly, this criminal jail appeal stands allowed. The appellant be released forthwith, if not required in any other case. 21. Send down the LCR with a copy of this judgment.