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2020 DIGILAW 60 (GAU)

Md Sah Alom @ Md Sah Alom Ali v. State Of Assam

2020-01-21

HITESH KUMAR SARMA, SUMAN SHYAM

body2020
JUDGMENT Suman Shyam, J. - Heard Mr. A. Ahmed, learned counsel appearing for the appellant. We have also heard Mr. M. Phukan, learned Addl. P.P. Assam appearing for the respondent No. 1. None has appeared for the respondent No. 2. 2. This appeal has been preferred against the judgment and order dated 22-03-2018 passed by the learned Addl. Sessions Judge (FTC), North Salmara, Abhayapuri in connection with Sessions Case No. 130(J)/2012 whereby, the appellant has been convicted under Section 302 of the IPC for committing the murder of his wife Monowara Begum and sentenced to undergo imprisonment for life and also to pay fine of Rs. 10,000/-. The prosecution case is based on multiple dying declarations of the victim and taking note of the materials available on record, the learned Sessions Judge has convicted the appellant. 3. During the course of hearing of the appeal, our attention has been invited to the three dying declarations allegedly made by the victim Monowara Begum wherein, she has consistently stated that it is the appellant, i.e. her husband who poured kerosene and burnt her. The learned counsel for the appellant has, however, sought to impeach such testimony of the witnesses through whom dying declaration has been brought on record by raising certain technical grounds. Our attention has also been invited to that part of the Case Diary wherein the Investigating Officer (I/O) had recorded the statement of the second wife of the appellant, viz. Musst Juhura Begum and his sister in law Musst Afroza Begum. The statement of both these persons had been recorded as accused who were ultimately not sent up for trial. From a reading of the statement of the aforesaid accused persons recorded under Section 161 Cr.P.C. we find that both of them have categorically stated before the I/O that the victim had told them that the appellant had set her on fire. However, surprisingly enough, none of them have been examined as a witness during the course of trial. 4. From a careful examination of the materials available on record, we are of the prima facie opinion that the I/O has failed to properly present the material evidence before the learned Trial Court. There are also signs of unexplained tampering with the records. This Court would apparently deal with such alleged lapses on the part of the I/O at an appropriate stage. There are also signs of unexplained tampering with the records. This Court would apparently deal with such alleged lapses on the part of the I/O at an appropriate stage. However, we are of the view that the testimony of Musst. Juhura Begum and Musst. Afroza Begum would throw proper light on the circumstances under which the victim had suffered burn injuries. Therefore, for ends of justice, it would be necessary to bring the testimony of the said witnesses on record. 5. For the reasons stated above, we deem it appropriate to invoke our jurisdiction under Section 391 of the Cr.P.C. and refer the matter to the learned Trial Court for recording additional evidence in the form of testimony of Musst. Juhura Begum and Musst. Afroza Begum who were the two accused persons in this case not sent up for trial. Needless to say, the opposite party/ appellant shall have his usual right of cross-examination of the witnesses as per the provisions of Evidence Act, 1872. 6. Facilitating the above, Registry to sent beck the LCR to the learned Trial Court as expeditiously as possible. Upon receipt of the LCR, the learned Trial Court would make an endeavour to record the testimony of the witnesses, as directed by us and send back the additional evidence along with the LCR, within a period of 02 months from the date of receipt of the LCR. Registry to put up this matter again for hearing upon receipt of the additional evidence recorded by the learned Trial Court.