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2020 DIGILAW 52 (GAU)

Jiarul Haque v. State of Assam

2020-01-20

HITESH KUMAR SARMA, SUMAN SHYAM

body2020
JUDGMENT : Hitesh Kumar Sarma, J. 1. This appeal is directed against the judgment and order, dated 10.10.2018, passed by the learned Additional Sessions Judge, Bilasipara, in Sessions Case No. 170/2014, convicting the accused-appellant and sentencing him to imprisonment for life and a fine of Rs. 20,000/- and in default of payment of fine, further rigorous imprisonment for 1 (one) year for the offence punishable under Section 302 IPC and to undergo rigorous imprisonment for 4 years and to pay a fine of Rs. 5,000/- and in default of payment of fine, rigorous imprisonment for 2 (two) months for offence punishable under Section 201 IPC. 2. The fact of the prosecution case is that, on 04.08.2011, the deceased Nur Islam, son of the informant Abdul Mannan (PW 1) went missing. At about 8:00 pm on that day, deceased Nur Islam was called and taken out of his house by accused Jiarul in conspiracy with other co-accused named in the FIR. Thereafter, the dead body of the deceased Nur Islam was recovered on 01.09.2011 from a jungle at Kadamtala. On 02.09.2011, the informant lodged the FIR in respect of the occurrence. 3. On receipt of the FIR, the Bilasipara Police Station registered a case, being Bilasipara PS Case No. 549/2011 under Sections 302/201 IPC and investigated into it. On completion of the investigation, charge-sheet was laid against the accused persons 1) Rashid Ali, 2) Abdul Haque, 3) Jiarul Haque, 4) Sattar Ali, 5) Nousad Ali, 6) Jamel Sheikh, 7) Gafur Ali and 8) Abdul Baten under Sections 120(B)/341/149/302/201 IPC showing therein Gafur Ali and Abdul Baten as absconders. 4. The learned trial court framed a formal charge against Rashid Ali, Abdul Haque, Jiarul Haque, Sattar Ali, Nousad Ali, Gafur Ali and Abdul Baten under Sections 120(B)/341/149/302/201 IPC. The accused persons pleaded innocence while the charges were read over and explained to them. Therefore, the trial commenced. 5. In this case, the prosecution examined as many as 13 (thirteen) witnesses including the medical officers and the investigating officer. 6. After closure of the prosecution evidence, the accused-appellant and the co-accused were examined under Section 313 Cr.PC. They have denied the allegations leveled against them and also declined to adduce defence evidence. After conclusion of trial, vide the impugned judgment, the learned court below convicted and sentenced the accused-appellant, as indicated above, and acquitted the remaining accused. 7. 6. After closure of the prosecution evidence, the accused-appellant and the co-accused were examined under Section 313 Cr.PC. They have denied the allegations leveled against them and also declined to adduce defence evidence. After conclusion of trial, vide the impugned judgment, the learned court below convicted and sentenced the accused-appellant, as indicated above, and acquitted the remaining accused. 7. We have perused the record of the trial court including the impugned judgment. We have also heard arguments advanced by the learned counsel for the accused-appellant, Mr. A. Ahmed and learned Additional Public Prosecutor, Mr. M. Phukan for the state respondent No. 1. 8. The PW 1 is the informant, Abdul Mannan. According to his evidence, he resides at a village called Kajaikata and his son resides at village Suryakhata and during the period of occurrence he did not know the whereabouts of his son, and therefore, one day, he came to his son's house and enquired from his wife about the whereabouts of his son/deceased to which his daughter-in-law i.e. the wife of the deceased, informed him that his son had left for some works and would come back before the Eid festival. After few days, this witness got the information that a human skeleton was found at Kadamtala Bagan. At the police station he was shown the skeleton and the same was identified by him to be of his son's dead body on the basis of the clothes his deceased son was wearing i.e. a vest and a long pant. He has further deposed that he was told by the wife of the deceased that accused Jiarul had come to their place one day and took away her husband at about 8:00 pm and accused Jiarul assuring her that her husband would come back before the Eid festival. He has also stated in his evidence that there was a land dispute between the accused persons and himself. He has exhibited the FIR as Ext. 1. In his cross examination, he has categorically stated that his daughter-in-law (PW 4) did not tell him that Jiarul had come to their house and had taken away the deceased. He has further stated that since her daughter-in-law (PW 4) told him that his son/deceased would come back after his job is over he did not file any missing information with the police. 9. He has further stated that since her daughter-in-law (PW 4) told him that his son/deceased would come back after his job is over he did not file any missing information with the police. 9. PW 2 and PW 3 are the witnesses to the recovery and seizure of a human skeleton, vide Ext. 3. These witnesses have not deposed anything about the facts relating to the occurrence. 10. PW 4, Nasiron Bibi, is the wife of the deceased. According to her evidence, accused-appellant Jiarul called and took her husband with him and thereafter her husband did not return home. Next day also accused Jiarul came to her house, and on being asked by her, he told her that her husband had gone to Guwahati. She further deposed that after 28 days, decomposed dead body of her husband was recovered which she identified to be that of her husband. In her cross-examination, she stated that except accused Jiarul she did not know any of the other accused persons. She has further stated that she never informed anybody about missing of her husband and during that period no information was given to the police also. She also admitted, in her cross-examination, that she did not state before the police that accused Jiarul had come to her house. According to her evidence she was inside her house and so she did not see the accused persons coming to their house. 11. PW 5, Jamir Ali, is one of the investigating officers. During investigation, he only collected the FSL report, arrested the remaining accused persons and thereafter he handed over the case diary to the officer-in-charge of the police station as he was transferred in the meantime. So, his evidence is not found implicating the accused-appellant. 12. The evidence of PW 6, Ali Hussain, is that there was a land dispute between the accused persons and the deceased. According to him, on the day of the incident, accused Jiarul called his cousin brother/deceased Nur Islam from his house and the deceased went with accused Jiarul to the place where accused Jiarul had taken him. Thereafter, the deceased Nur Islam did not return. The wife of the deceased/the sister-in-law of this witness, told him that accused Jiarul had called the deceased Nur Islam and since then he did not return. Thereafter, the deceased Nur Islam did not return. The wife of the deceased/the sister-in-law of this witness, told him that accused Jiarul had called the deceased Nur Islam and since then he did not return. In cross-examination also this witness asserted that he was told by PW 4 i.e. the wife of the deceased, that the deceased was called and taken with him by the accused-appellant. 13. The evidence of PW 7, Billal Hussain, is to the effect that he also heard that accused Jiarul called the deceased Nur Islam from his house. After 25 days of this incident he visited the house of the deceased Nurl Islam and came to know from PW 4, i.e. the wife of the deceased, that accused Jiarul called her husband Nur Islam and since then he was missing. In cross-examination, he has deposed that there was a land dispute between the accused persons and the informant. 14. PW 8, Easin Ali, deposed that the accused had land dispute with the deceased Nur Islam and there had taken place an incident of mutual assaults between them before the occurrence of this case. After that incident of assaults, the deceased Nur Islam went missing and one month thereafter the skeleton of his dead body was recovered. In his cross-examination, he deposed that he only heard that the accused Jiarul called and took the deceased Nur Islam from his house. 15. PW 9, Abdul SK, is heard stating in his evidence that one day he came to know from the wife of the deceased (PW 4) that the deceased was missing. They searched for him but could not find. After about one month, a human skeleton was recovered which was identified to be that of the deceased Nur Islam. In his cross-examination, he deposed that he heard from PW 4 i.e. the wife of the deceased that accused Jiarul had called and taken with him the deceased Nur Islam on the day since when he was missing. 16. PW 10, Dr. Monalisha Choudhury, is the Junior Scientific Officer at Directorate of Forensic Science Assam, Kahilipara, who performed the DNA test and found that the allele of amplified of Ext DNA 420/11 (bone) matches with one of the respective allele in the DNA profile of Ext DNA 421/11 (father). 17. 16. PW 10, Dr. Monalisha Choudhury, is the Junior Scientific Officer at Directorate of Forensic Science Assam, Kahilipara, who performed the DNA test and found that the allele of amplified of Ext DNA 420/11 (bone) matches with one of the respective allele in the DNA profile of Ext DNA 421/11 (father). 17. PW 11, Rezzak Ali, deposed that the deceased Nur Islam went missing from his house after he was called out by accused Jiarul and after about one month a human skeleton was found and the same was identified to be that of the deceased Nur Islam. In his cross-examination, he has admitted that he did not have personal knowledge about calling out and taking away of the deceased Nur Islam by accused Jiarul. 18. PW 12 is the investigating officer. He has narrated about the actions taken at various stages in the investigation of the case. His evidence is of routine nature. He has taken up the investigation at a later stage and ultimately laid the charge-sheet vide Ext. 9. In his cross-examination he has confirmed that the informant Abdul Mannan did not state before him that the accused Jiarul had assured his daughter-in-law that her husband would come back before the Eid festival as well as the fact of a land dispute between the accused persons and his son. 19. PW 13 is the autopsy doctor who examined the seized human skeleton on 5.9.2011 in the Guwahati Medical College Hospital. On examination of the skeleton, he opined as follows: 1. All the bones are of human being. 2. All the bones belong to single individual. 3. Sex of the deceased is male. 4. Age of the deceased is above 30 and below 40 years. 5. Height of the individual as stated above. 6. No injuries are detected anywhere in the bones. 7. Approximate time since death is 2-3 months. 8. Opinion regarding cause of death could not be made. However left femur is preserved for chemical analysis and DNA profile and sent to the SFSL, Kahilipara. 20. It appears from the above evidence that the foundation of the prosecution case is the statement of PW 4 made to the PW 1, PW 6, PW 7 and PW 9 that the accused-appellant Jiarul had called and taken out her husband about a month prior to recovery of the human skeleton identified to be of her deceased husband. 20. It appears from the above evidence that the foundation of the prosecution case is the statement of PW 4 made to the PW 1, PW 6, PW 7 and PW 9 that the accused-appellant Jiarul had called and taken out her husband about a month prior to recovery of the human skeleton identified to be of her deceased husband. In view of such evidence, the learned Additional Sessions Judge, vide the impugned judgment, held the accused-appellant guilty for commission of the offence under Sections 302/201 IPC. There is no dispute at the bar that there is no eyewitness to the occurrence and such fact is also apparent from the evidence of the witnesses, referred to above. 21. On the basis of the evidence on record, the learned trial court found the following circumstances to hold that the accused-appellant was guilty of the offences punishable under the aforesaid provisions of law. (i) That, on 4.8.2011, at about 8:00 pm, the accused Jiarul Hoque called and took with him the deceased Nur Islam from his house and as such the accused-appellant was last seen together with the deceased. (ii) That, the accused-appellant Jiarul Hoque told the wife of the deceased (PW 4) that her husband Nur Islam went to Guwahati for work and he would return home at the time of Eid. (iii) That, after last seen with the accused-appellant, a human skeleton was recovered from a jungle, on 1.9.2011, at Kadamtala and the said skeleton was identified to be that of the deceased Nur Islam who was last seen with the accused-appellant on 4.8.2011. 22. The identification of the deceased Nur Islam is not a question to be answered in this case in view of absence of any dispute as regards identification of the human skeleton to be that of the deceased Nur Islam. So far the fact that the accused-appellant Jiarul, on 4.8.2011, had called and took away with him the deceased and thereafter the deceased was missing is a fact stated by PW 4 i.e. the wife the deceased Nur Islam. She has admitted in her cross-examination that she did not disclose this fact to the investigating officer or to anybody else. So far the fact that the accused-appellant Jiarul, on 4.8.2011, had called and took away with him the deceased and thereafter the deceased was missing is a fact stated by PW 4 i.e. the wife the deceased Nur Islam. She has admitted in her cross-examination that she did not disclose this fact to the investigating officer or to anybody else. PW 1, PW 6, PW 7 and PW 9 who claimed to have heard about the fact of taking away of her husband by the accused-appellant from PW 4 are found to have been belied by the PW 4 herself as she categorically deposed that she did not tell anybody that accused-appellant Jiarul had taken her husband out of her house. That being so, the evidence of PW 1, PW 6, PW 7 and PW 9 has lost its relevance so far fact that the accused-appellant was called and taken with him the deceased is concerned. Such being the position, it could not be established by the prosecution that the accused-appellant was last seen together with the deceased. It has come out from the evidence on record that the skeleton of the dead body of the deceased was recovered on 1.9.2011. The deceased was missing since 4.8.2011, and as such, evidently, the human skeleton identified to be that of the deceased Nur Islam, was recovered after 28 days since he went missing. On the other hand, the evidence of the autopsy doctor, examined as PW 13, is that the approximate time of death of the deceased was 2-3 months prior to the date of postmortem. The postmortem was admittedly conducted on 5.9.2011. Even if we accept the evidence that the skeleton of the deceased was recovered after 28 days after he went missing then also there is a huge time gap of 28 days from the date of missing till the date of recovery of the skeleton of the dead body of the deceased. For the sake of argument even if we suppose that the accused-appellant was last seen together with the deceased, yet such fact shall not be of any aid to the prosecution to prove the charges against the accused-appellant in view of the ratio laid down by the Hon'ble Supreme Court in the decision referred to here-in-after. 23. For the sake of argument even if we suppose that the accused-appellant was last seen together with the deceased, yet such fact shall not be of any aid to the prosecution to prove the charges against the accused-appellant in view of the ratio laid down by the Hon'ble Supreme Court in the decision referred to here-in-after. 23. With respect to the theory of last seen together the Hon'ble Supreme Court in the case of Shyamal Ghosh v. State of W.B., (2012) 7 SCC 646 , held that application of the "last seen theory" requires a possible link between the time when the person was last seen alive and the fact of the death of the deceased coming to light. There should be a reasonable proximity of time between these two events. This proposition of law does not admit of much excuse but what has to be seen is that this principle is to be applied depending upon the facts and circumstances of a given case. The Hon'ble Supreme Court in the case of Shyamal Ghosh (supra), re-iterated the settled law that the last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. The reasonableness of the time gap is, therefore, of some significance. If the time gap is very large, then it is not only difficult but may even not be proper for the court to infer that the accused had been last seen alive with the deceased and the former, thus, was responsible for commission of the offence. The purpose of applying these principle, while keeping the time factor in mind, is to enable the court to examine that where the time of last seen together and the time when the deceased was found dead is short, it inevitably leads to the inference that the accused person was responsible for commission of the crime and the onus was on him to explain how the death occurred. 24. 24. Again, in the case of Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC 715 , the Hon'ble Supreme Court held that circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, by itself, cannot lead to proof of guilt against the appellant. 25. Therefore, taking into account the aforesaid two decisions rendered by the Hon'ble Supreme Court and also taking into account the huge time gap of at least 28 days from the date of missing of the deceased till recovery of his dead body, it is completely unsafe to hold that the accused-appellant was the author of the murder of the deceased. 26. Such being the evidence on record, in the considered view of this court, the prosecution has not been able to bring home the charge against the accused-appellant, beyond all reasonable doubt, and therefore, he deserves to be acquitted. 27. Accordingly, the appeal is allowed. The judgment of the learned trial court is set aside. 28. Send down the LCR along with a copy of this judgment. 29. The accused-appellant, if in judicial custody, be released forthwith.