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2020 DIGILAW 91 (GAU)

Md Abdul Malekr v. State Of Assam

2020-01-28

MIR ALFAZ ALI, S.HUKATO SWU

body2020
JUDGMENT Mir Alfaz Ali, J. - Heard Mr. S.C. Biswas, learned counsel for the appellant, Ms. S. Jahan, learned Addl. Public Prosecutor for the State-respondent No. 1 and Mr. J. Ahmed, learned counsel for the respondent No. 2. 2. This jail appeal is directed against the judgment and order passed by the learned Sessions Judge, Kamrup, Amingaon in Sessions Case No. 168/2014, whereby the learned Sessions Judge convicted the appellant u/s 302 IPC and sentenced him to imprisonment for life and fine of Rs. 2,000/- with default stipulation. 3. As per prosecution case, on 10-08-2006 at about 3 am, the appellant killed his wife Saleha Begum and kept the body concealed in the "Dhansa" cultivation field. The FIR (Ext.-2) was lodged by the brother of the appellant, on the basis of which police registered Hajo PS Case No. 151/2006 and commenced investigation. During investigation, police recorded the statement of the witnesses, recovered the body of the deceased, PW-11, Circle Officer prepared the inquest report and the post mortem examination was conducted by Dr. Gunajit Das. 4. The autopsy doctor was not examined. However, Dr. R. Chaliha, Head of the Forensic Medicine, GMCH, who was familiar with the handwriting of the autopsy doctor was examined by the prosecution as PW-8 to prove the post mortem report (Ext.-3). As per the post mortem report, following injuries were found on the body of the victim -- I. Pressure abrasion of size 1 x 1 cm placed at middle of the front of neck near thyroid outlets. II. Another pressure abrasion of size 1.5 x 1 cm at the front of neck 3 cm right of midline in the middle part. III. Another pressure abrasion of size 1.5 x 1 cm with crysanic scratch abrasion over lower part of the front of neck 4 cm right of midline. IV. Defuse bruise over lower part of right side of front of neck bluish in colour on direction of neck defused contusion of soft tissues with drying of tissues under the present abrasion. 5. In the opinion of the doctor, who conducted the post mortem examination, death was due to manual strangulation, which was ante mortem and homicidal in nature. Deceased was pregnant at the time of death. Death was caused within 24 to 36 hrs of the post mortem examination. Dr. 5. In the opinion of the doctor, who conducted the post mortem examination, death was due to manual strangulation, which was ante mortem and homicidal in nature. Deceased was pregnant at the time of death. Death was caused within 24 to 36 hrs of the post mortem examination. Dr. R. Chaliha (PW-8), who was Professor and Head of the Department of Forensic Medicine of the Gauhati Medical College & Hospital, Guwahati stated to have concurred with the report prepared by the autopsy doctor. 6. After completion of the investigation, the charge-sheet was laid against the appellant u/s 302/201 IPC. The offence being triable by the court of Sessions, the case was committed to the court of Sessions and the learned Sessions Judge framed charges u/s 302/201 IPC, which was abjured by the appellant. 7. During the trial, prosecution examined 13 witnesses in order to bring home the charges and on appreciation of evidence, learned Sessions Judge convicted the appellant u/s 302 IPC and awarded sentence as indicated above. 8. Aggrieved, the accused/appellant has preferred the instant appeal. 9. Learned counsel for the appellant, Mr. Biswas submits, that the conviction was based solely on the evidence of leading to discovery. Mr. Biswas further contends that there was, in fact, no evidence of leading to discovery u/s 27 of the Evidence Act, inasmuch as, the body was recovered even before lodging of the FIR, and as such, there was no question of leading to discovery u/s 27 of the Evidence Act, submits Mr. Biswas. 10. Supporting the conviction and sentence, learned Addl. P.P. submits, that there are evidence on record to prove the charges, and as such, the impugned judgment calls for no interference. 11. We have considered the submission made by the learned counsel and also scrutinized the evidence and materials brought on record. 12. On our assessment of the evidence and materials on record, we find that there was no direct evidence of the offence, as no one had seen the occurrence, and the learned trial court recorded the conviction of the appellant solely on the basis of leading to discovery of fact. 13. Pw-3, Alal Ali (informant) deposed, that having come to know about the death of the victim, who was the wife of his brother, he lodged the FIR. 13. Pw-3, Alal Ali (informant) deposed, that having come to know about the death of the victim, who was the wife of his brother, he lodged the FIR. He further stated, that a boy of the village informed him that a body was lying in the jute filed and immediately he went there to confirm and found that it was the body of the deceased and thereafter he lodged the FIR. During cross-examination, he stated that he had no personal knowledge about the occurrence. 14. Pw-4, Bakkar Ali stated that one morning PW-3 came to his house and informed, that his brother (appellant) had killed his wife Saleha Begum. He came to the police station along with PW-3 and informed the matter. While they were in the police station, accused/appellant Abdul Malek also came there and he was taken into custody by police. He further stated that police went to the place of occurrence with the appellant and they also accompanied the police and the appellant Malek showed the body of his wife, which was lying on the land towards the south of his house. During cross-examination, he admitted contradicting his own statement during examination-in-chief, that the accused/appellant was arrested by police at Powa Mocca and brought to the police station. He also stated that the FIR was lodged on the following day of the incident. However, the Ext.-1 shows that FIR was lodged by PW-3 on the same day. 15. Pw-2, Tapan Das, who was a police photographer, stated that the accused led the police to a jungle, wherefrom the body of a woman was recovered and he took the photographs. He further stated in his cross-examination, that they went to the place on foot, which was at a distance of half kilometer and before their arrival a large number of people assembled there. According to him, the body was found deep inside the jungle and they had to reach the place by clearing jungle. 16. Pw-5 also stated that the body was found near the house of the accused. According to him, having seen the crowd, he went to the place and saw the body of his sister lying there. Thereafter, police took the body away. He however, stated that he did not find Bakkar Ali (PW-4) there. 17. 16. Pw-5 also stated that the body was found near the house of the accused. According to him, having seen the crowd, he went to the place and saw the body of his sister lying there. Thereafter, police took the body away. He however, stated that he did not find Bakkar Ali (PW-4) there. 17. Pw-7, Majibulla Ali stated, that he was in his house and the police picked him up from his house and he accompanied the police. He further stated, that before he reached the place of recovery with the police other police personnel and public were already present there and on their arrival, they found the body of Amir's sister lying there. He further stated that the accused was brought to the place of recovery after they had reached there. 18. Pw-9 and PW-10 were declared hostile by the prosecution. It is the trite law, that the testimony of the hostile witness does not get washed off the record lock, stock and barrel, merely because of the prosecution disowning such testimony. If the oral testimony of the hostile witnesses is found supporting the other evidence, there is no bar in relying or believing the testimony of such hostile witness. On scrutiny of the oral testimony of these two witnesses, we find that nothing has been elicited from the testimony of these witnesses, which could be of any help to the prosecution. 19. A dispassionate scrutiny of the testimony of PW-2, PW-3, PW-4, PW-5, PW-6 & PW-7 transpires that there was no dispute about the death of the wife of the appellant and her body being found lying in the nearby cultivable field. Although, the learned trial court has relied on the evidence of the PW-11, the investigating officer, that on the basis of the disclosure statement made by the appellant, the body of the deceased was recovered from the cultivable field, evidence on record shows, that even before lodging of the FIR, the informant came to know the whereabouts of the body of the deceased, inasmuch as, according to him, a boy of the village informed him that the body of the wife of his younger brother was lying in ''Dhansa'' cultivation. Having received the informant from the said boy, he went for verifying the information and only after having confirmed that the body, which was lying, in the filed was the body of the wife of the appellant, he went to the police station to lodge the FIR. 20. Although PW-4 tried to say that while he was in the police station along with PW-3, the appellant also appeared there and thereafter, they went to the place of occurrence along with appellant Abdul Malek and recovered the body, such evidence was contradicted by himself in cross-examination, where he stated, that accused Abdul Malek was arrested in Powa Mocca and thereafter, he was brought to the police station. PW-7 stated that he accompanied the police to the place of occurrence, wherefrom the body was recovered. According to him, before they arrived at the place, where the body of the deceased was lying, public and other police personnel were already there. He also stated that the accused was brought to that place after their arrival. Thus, the evidence of PW-3, who lodged the FIR coupled with the oral testimony of PW-7 and the FIR (Ext.-2) makes it abundantly clear, that the factum of the body of the deceased lying at the jute (''Dhansa'') field near the house of the appellant was within the knowledge of the investigating officer even before the accused was arrested or brought to the police station. In fact, even before the arrival of the police at the place, where the body was lying, the other people already assembled there. 21. In order to invoke the provision of Section 27 of the Evidence Act, so as to make any discovery of facts admissible, prosecution is required to prove, firstly that there was disclosure statement made by the accused, secondly the discovery of the facts must be the direct consequence of such information or disclosure statement given by the accused, thirdly the accused must be in the custody of the police, while making the disclosure statement and fourthly the information given by the appellant must be 'distinctly' related to the facts discovered. 22. 22. In the present case, the body was already discovered as lying in the "Dhansa" field and it was within the knowledge of the informant and other people including the police and as such, there could not be a discovery of fact, as the direct consequence of information given by the accused in custody under Section 27 of the Evidence Act. Therefore, when the body was already discovered by some person other than the accused, inasmuch as, according to PW-3, the informant a village boy having seen the body in the "Dhansa" field informed the PW-3, who also verified the same, before lodging the FIR, there was no scope for invoking Section 27 of the Evidence Act, reason being that no discovery of fact was made pursuant to the information given by the accused. One has to bear in mind, that the provision of Section 27 of the Evidence Act is an exception to Section 25 & Section 26 of the Evidence Act and the principle embedded in the provision of Section 27 Evidence Act is the "doctrine of confirmation." Section 27 of the Evidence Act makes the statement before police to the extent distinctly related to the facts discovered, albeit relevant fact, admissible, only because such statement is confirmed by subsequent event of discovery of the facts. The facts and circumstances of the present case speaks loud and clear, that the leading to discovery as relied by the learned trial court was totally farcical, which, in our considered opinion, can by no stretch of imagination be made the basis of conviction. Once the discovery evidence fails, literally, no evidence is left with, which could support the prosecution case. 23. In view of the above evidence, we are constrained to hold, that prosecution hopelessly failed to prove the charges against the accused/appellants beyond reasonable doubt. Therefore, the conviction recorded and the sentence awarded by the learned Additional Sessions Judge is not sustainable. Accordingly, we set aside the impugned judgment of conviction and sentence and allow the appeal. The accused/appellant be set at liberty forthwith if not required in any other case. 24. Send back the record.