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2018 DIGILAW 344 (GAU)

Md. Hazarat Ali v. State of Assam

2018-02-22

AJIT SINGH, MANOJIT BHUYAN

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JUDGMENT & ORDER : Ajit Singh, J. The sole appellant Hazarat Ali has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.5000/- with default stipulation. 2. The victim of the incident was Johura Khatun, aged about 35 years. She was younger wife of the appellant. 3. According to the prosecution case, Johura Khatun was the eldest daughter of Musst. Sukurijan Bibi (CW-1) and sister of Abbas Ali (PW-1) and Akkash Ali (PW-3). She was married to appellant about 20/25 years ago and out of their wedlock, four children were born to her. Ikram Ali (PW-2) aged about 13 years at the time of incident is one of their children. At the time of occurrence, Johura Khatun was again pregnant. As she was crying in her house, her mother Musst. Sukurijan Bibi (CW-1) brought her to her home, but after sometime appellants family members took her away and on that night i.e. on 17.09.2011 appellant assaulted Johura Khatun on her chest and abdomen with his hands and legs as a result of which she later gave birth to a still born child. Mustt. Anowara Begum (PW-9) - neighbour of appellant - saw Johura Khatun giving birth to a still born baby. On 20.09.2011, Musst. Sukurijan Bibi (CW-1) learning about this went to the house of appellant. Johura Khatun then told her that appellant had assaulted her due to which the baby died and he sat on the doorway of the room with a lathi while she was delivering and he did not allow anyone to enter the room. Musst. Sukurijan Bibi (CW-1) on hearing this, bathed Johura Khatun and gave her meal. She also asked appellant to allow her to take Johura Khatun with her, but he denied to send her until and unless, some document was prepared in that context in the presence of President and Secretary of the Village Defense Party. 4. Musst. Sukurijan Bibi (CW-1) informed the Village Defense Party and left the house of appellant to come back again on the next day and take her daughter with her. But, during the night of 20.09.2011, appellant killed Johura Khatun in the house. Imtaz Ali (PW-5) also saw appellant assaulting Johura Khatun and sitting on the doorway with a lathi restraining the ladies of his neighbourhood from entering into the room, when she was delivering. But, during the night of 20.09.2011, appellant killed Johura Khatun in the house. Imtaz Ali (PW-5) also saw appellant assaulting Johura Khatun and sitting on the doorway with a lathi restraining the ladies of his neighbourhood from entering into the room, when she was delivering. Imtaz Ali (PW-5) even offered to hold a Bichar if the brothers of Johura Khatun had approached. However, after the death of Johura Khatun, Appellant went to the house of Imtaz Ali and informed him about the death of Johura Khatun. When Abbas Ali (PW-1) and Akkash Ali (PW-3) got the news of death of their sister, they immediately rushed to the house of appellant and saw the dead body of Johura Khatun with injuries on her neck, eyes and mouth. Imtaz Ali (PW-5) and Abu Bakkar Siddique (PW-6) who also reached the place of occurrence saw the dead body of Johura Khatun with injuries on her person. 5. Ejahar (Exhibit-1) of the incident was made by Abbas Ali (PW-1) at Uriamghat Police Station on 21.09.2011. On receiving the information, Investigating Officer Dimbeswar Medhi (PW-12) rushed to the spot and recorded statements of the witnesses. Inquest was done vide Exhibit-2 in the presence of Abbash Ali (PW-1), Imtaz Ali (PW-5) and Abu Bakkar Siddique (PW-6). He then drew sketch map Exhibit-6 and sent the dead body for post-mortem. 6. Dr.Dwijen Bordoloi (PW-9) conducted the post mortem examination on the body of Johura Khatun vide Exhibit-3. Appellant was subsequently arrested and on completion of the investigation Exhibit-8 charge-sheet was filed against him under Section 302 of the Indian Penal Code. 7. Dr. Dwijen Bordoloi (PW-9) found bruises present over right cheek, right leg, back and right temple, multiple bruises on the back with fracture of skull. The doctor opined that Jahura Khatun died due to syncope as a result of Crania Cerebral injury which was ante mortem in nature and was caused by blunt object. 8. 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. 9. It is argued on behalf of the appellant that since there was no eye witness to the occurrence, it is uncertain as to who actually assaulted Jahura Khatun and, therefore, the trial court committed an illegality in convicting him under Section 302 of the Indian Penal Code. 10. 9. It is argued on behalf of the appellant that since there was no eye witness to the occurrence, it is uncertain as to who actually assaulted Jahura Khatun and, therefore, the trial court committed an illegality in convicting him under Section 302 of the Indian Penal Code. 10. 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. 11. 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. 12. In yet another decision of the Supreme Court, State of Rajashthan vs. Kashi Ram AIR 2007 SC 144, 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. 13. 12. In yet another decision of the Supreme Court, State of Rajashthan vs. Kashi Ram AIR 2007 SC 144, 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. 13. In the present case, the appellant admittedly used to reside in the same house with Jahura Khatun and she was found dead in his house. Also it was the appellant who informed Imtaz Ali (PW-5) about the death of Johura Khatun. Appellant was expected to explain as to how his wife died while living in his house with him. At the time of death, Jahura Khatun used to live with appellant and their children. Though, her son-Ikram Ali (PW-2) and mother of appellant - Mustt. Iyesha Khatun (PW-11) -deposed that she died of illness, their evidence is not supported by medical evidence and cannot be relied upon. Besides, Musst. Iyesha Khatun (PW-11) used to live separately about k.m. away from the house of appellant and as such, she is not expected to know as to under what circumstances Jahura Khatun died. Dr. Dwijen Bordoloi (PW-9) has categorically deposed that she died due to the injuries sustained by blunt weapon impact and a bare reading of the post-mortem report would go to divulge that she had sustained grievous injuries on her head. Musst. Sukurijan Bibi (CW-1) has deposed that Johura Khatun had told her that appellant assaulted her at the time of delivery of baby and he did not allow anyone to enter the room by sitting on the doorway with a lathi. The evidence of Musst. Sukurijan Bibi (CW-1) did not shake during her cross-examination too, and is further supported by cogent medical evidence. Further, the appellant has failed to explain as to how Johura Khatun died a homicidal death in his house due to grievous head injuries. 13. We, therefore, having regard to the above referred decisions of the Supreme Court as well as the evidence of Chukurijan Bibi (CW-1), Abbas Ali (PW1) and Akkash Ali (PW-3) find ourselves in complete agreement with the finding of the trial court that appellant alone was the perpetrator of crime. 14. For these reasons, we find no merit in this appeal and it is accordingly dismissed.