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2020 DIGILAW 92 (TRI)

Abdul Barek v. State of Tripura

2020-07-07

AKIL ABDUL HAMID KURESHI, ARINDAM LODH

body2020
JUDGMENT : Arindam Lodh, J. 1. The present appeal has been filed challenging the judgment and order of conviction and sentence dated 28.06.2019, passed by the learned Sessions Judge, Sepahijala District, Sonamura in Case No. ST(T/1) 23 of 2016 whereby and where-under the appellant has been convicted under Section 302 of IPC and sentenced him to suffer rigorous imprisonment for life and to pay fine of Rs. 10,000/- with default stipulation. 2. The prosecution case, as noted by the trial Court, is- "The gist of the prosecution in short is that on 02.03.2015 at about 0800 hours the complainant Rubiya Khatun received one telephonic information from the in-laws house of her daughter Fatema Khatun. Immediately, she went to Melaghar, Chandigarh and found the dead body of her daughter was lying in the house of her in-laws, with covering the face by cloth and when the complainant tried to see the face of her daughter then the mother-in-law of her daughter objected her and thereafter removing the cloth she found black mark on the left side of her neck, then she suspected and went to call the local Pradhan and other people but the in-laws of her daughter again obstructed her. Then the in-laws themselves called the local Pradhan and other people and arranged for bury the dead body of her daughter then she raised objection and that time one Billal Miah informed the police. It is stated by the informant that about 2 years back prior to the incident her daughter and accused Abdul Barek got married in Sonamura Court out of love affair and thereafter, social marriage took place at Kalapania, Sonamura. At the time of marriage, the informant given Rs. 70,000/- cash, one bori gold ornament along with wooden furniture and other household goods. After their marriage, they spent their conjugal life in the house of the informant where the accused assaulted upon her daughter and after about 6 to 7 months of marriage the in-laws of her daughter brought them to Purba Chandigarh where the FIR named accused persons conjointly tortured upon her daughter. Even the accused Abdul Barek sometime used to drive away her daughter from the house and thereafter, the informant put her back with the help of people as well as police. Even the accused Abdul Barek sometime used to drive away her daughter from the house and thereafter, the informant put her back with the help of people as well as police. That informant stated that on last night i.e. on 02.03.2015 at any time the inmates of in-laws of her daughter of the informant killed her by strangulation and tried to bury the dead body silently. Prior to receipt of FIR SI Debananda Reang went to the P.O. and recorded the oral Ejahar of the informant and forwarded the same to O/C Melaghar P.S for registration of a specific case." 3. On receipt of the ejahar, the Officer-in-Charge of Melaghar PS registered FIR No. 2015 MLG 012 dated, 02.03.2015 against the FIR named accused persons under Section 498-A/302/34 of IPC. 4. Being endorsed, the Investigating Officer prepared the inquest report of the deceased, visited the scene of crime, prepared hand sketch map with separate index, arranged for post-mortem examination of the body of the deceased Fatema Khatun, examined the available witnesses and recorded their statements under Section 161 of Cr.P.C. The disclosure statement of the accused Abdul Barek was also recorded in the police station. Subsequently, the Investigating Officer collected the postmortem report as well as the forensic report from the concerned authorities and after completion of investigation the Investigating Officer laid charge sheet to the Court of learned Sub-Divisional Magistrate, Sonamura. Thereafter the case was committed to the Court of learned Sessions Judge for trial. 5. Charges under Section 498-A/302 of IPC were framed against accused Abdul Barek and also under Section 498-A of IPC was framed against accused Mst. Hazera Bibi, the mother of accused Abdul Barek. 6. Altogether 16 witnesses were examined in course of trial and prosecution also relied upon some documentary evidence.. 7. Mentionably, during trial, the accused Hajera Bibi was acquitted from the charge under Section 232 of Cr.P.C. vide order dated 22.03.2018. 8. On conclusion of recording of evidence, the accused Abdul Barek was put to examination under Section 313 Cr.P.C. to which he pleaded his innocence and stated that he was falsely implicated with the case. 9. Having heard the learned counsel of the parties and on consideration of all the material aspects, the learned Sessions Judge convicted and sentenced the accused as aforestated. 10. Being aggrieved, the accused has approached this court by presenting the instant appeal. 11. Heard Ms. 9. Having heard the learned counsel of the parties and on consideration of all the material aspects, the learned Sessions Judge convicted and sentenced the accused as aforestated. 10. Being aggrieved, the accused has approached this court by presenting the instant appeal. 11. Heard Ms. R. Purkayastha, learned counsel appearing for the appellant and Mr. S. Debnath, learned Addl. PP. appearing for the State- respondent. 12. Ms. Purkayastha, learned counsel submitted that the prosecution has miserably failed to establish the charge of murder against the accused-appellant. She submitted that there was no eye-witness to the incident. The deceased who was the wife of the accused-appellant had always a suicidal tendency for which the accused-appellant should not be blamed. She further contended that once the trial Court held that charge under Section 498-A of IPC had not been proved, then, there was no reason to hold that the accused had any motive to commit murder to his wife. Lastly, she urged to set aside the judgment and order of conviction and sentence passed by the learned Sessions Judge. 13. On the other hand, Mr. S. Debnath, learned Addl. P.P. submitted that the prosecution has been able to substantiate the charge against the accused-appellant for commission of murder of his wife, deceased Fatema. He pointed out that the medical evidence has been fully established that the deceased died out of asphyxia. There was clear ligature mark on the neck of the deceased. Lastly, learned Addl. P.P. submitted that the conviction and sentence as declared by learned Sessions Judge should be confirmed. 14. On the basis of aforesaid submissions, we have made a quick survey of the evidence of the prosecution witnesses together with the relevant documents. 15. We have noticed that in the instant case, other than PW-5, PW-6, PW-7, PW-8, PW-9, PW-10, PW-11 and PW-13, all other witnesses are Govt. servants. Out of these witnesses, PWs-6 and 9 were declared hostile. The evidence of PW-7 is also of less importance as the said witness could not indicate any material aspects of the case. 16. PW-8 Mst. Hashna Begam deposed that after leading a peaceful conjugal life for about 2/3 months, the husband and other family members of the appellant started torture upon the deceased. A meeting was also held in the Panchayat to amicably settle the dispute and it was settled with the intervention of Panchayat and police personnel. 16. PW-8 Mst. Hashna Begam deposed that after leading a peaceful conjugal life for about 2/3 months, the husband and other family members of the appellant started torture upon the deceased. A meeting was also held in the Panchayat to amicably settle the dispute and it was settled with the intervention of Panchayat and police personnel. She further deposed that she came to know that the daughter of the complainant i.e. the wife of the appellant, Fatema Khatun died. She went to the house along with others and found Fatema was lying dead and her dead body was covered with clothes. When the cloth was removed from her face, then, she saw some black marks in and around her neck and her tongue came out from her mouth. She further deposed that the appellant and other family members tried to bury her but they resisted and informed the police who came there and shifted dead body of the deceased to G.B. Hospital, Agartala. In cross-examination, PW-8 stated that prior to that incident Fatema Khatun was also given marriage to another person who subsequently left for Bangladesh leaving her in her parent's house. She further stated in her cross-examination that prior to the marriage with Abdul Barek, one Mamin Hossein abducted Fatema Khatun. However, the matter was amicably settled by paying Rs. 70,000/-. 17. PW-10 also appeared to be a less important who deposed that the accused-appellant had informed him about the death of Fatema Khatun and on receipt of such information he communicated the same to the PW-5, the mother of the victim and others. 18. Nothing important material was elicited from the evidence of PW-11. He was a witness to the seizure of one affidavit of Fatema and Abdul Barek. He identified his signature on the seizure list which was marked as Exbt. 8/2 and he also identified the seized affidavit which was marked as Exbt. MO-1. 19. PW-13, Md. Jahangir Hossain was the Upapradhan who deposed that he witnessed one black mark in the neck of the deceased, Fatema. 20. PW-14, Inspector Paritosh Das had recorded the disclosure statement of the accused Abdul Barek. We are not inclined to give enough importance to the confessional statement made by the accused as asserted by the I.O. in his evidence for the reason that those confessions were made while the accused was in the custody of police. 21. PW. 20. PW-14, Inspector Paritosh Das had recorded the disclosure statement of the accused Abdul Barek. We are not inclined to give enough importance to the confessional statement made by the accused as asserted by the I.O. in his evidence for the reason that those confessions were made while the accused was in the custody of police. 21. PW. 15 is the I.O. of the case who after observing all formalities submitted a charge sheet against the accused persons. 22. PW-16 is the scientific expert who submitted a report of viscera samples collected by medical officer of Forensic Medicine and Toxicology Department of AGMC and GBP Hospital, Agartala. 23. The most relevant witness in the instant case is PW-5, the informant and PW-12, the doctor. We may recapitulate the evidence of PW-5, Rubiya Khatun who was the informant and mother of the deceased Fatema Khatun. She deposed what actually she stated in her ejahar. From her evidence, it transpires that after receipt of the information she went to the house of the accused and at that time she found her daughter was lying dead covered with a piece of cloth and the accused-appellant along with others were preparing to bury her and that as soon as she along with others tried to remove the cloth from her face, the accused-appellant and his relatives resisted them and somehow they could manage to see the face of Fatema Khatun. She along with her companions detected a black spot on the left side of her neck and by that time, the Pradhan of Gaon Panchayat and other members came and her son informed the police station. In her cross-examination, the defence could not shake her evidence. 24. Next vital witness is Dr. Pranab Choudhury who conducted a post-mortem examination over the dead body of the deceased Fatema Khatun on 03.03.2015. On examination of the dead body he found the following injuries: "1. A dark brown coloured, transversely placed, non- continuous, parchmentised and slightly depressed ligature mark is present over lower part of let side of front of the neck. The outer end of the mark is situated 6.5 cm below the left ear lobe and the inner end of the mark is situated 4.5 cm above the right sterno clavicular joint. The length of the ligature mark is 9.5 cm. Maximum width of the ligature mark is 2.5 cm. The outer end of the mark is situated 6.5 cm below the left ear lobe and the inner end of the mark is situated 4.5 cm above the right sterno clavicular joint. The length of the ligature mark is 9.5 cm. Maximum width of the ligature mark is 2.5 cm. The edges of this ligature mark are abraded. On dissection of neck, the subcutaneous area underneath this mark is found ecchymosed and non-glistening. The superficial and deep muscles of neck are contused. Larynx, trachea, thyroid cartilage, hyoid bone and carotid arteries are found intact but congested. Base of the tongue is contused. Above mentioned ligature mark is ante-mortem in nature and age of this mark was fresh at the time of death. This type of ligature is found in case of strangulation by soft and broad material. 2. One number of oval shaped contusion is present on lower aspect of front of the neck, situated 1.2 cm below the inner end of the above mentioned ligature mark. Dimension: 0.6 cm x 0.5 cm. 3. Four numbers of oval shaped contusion are present on left supra clavicular region over an area of 9 cm x 8 cm. Dimensions are 0.5 cm x 0.5 cm, 0.5 cm x 0.4 cm, 0.4 cm x 0.4 cm and 0.4 cm x 0.3 cm. Injuries mentioned under SI. No. (2) and (3) are ante-mortem in nature and were caused by impact of blunt trauma which are possible by finger tips. Age of the injuries were fresh at the time of death. According to our opinion the cause of death is asphyxia due to strangulation by ligature and this death is homicidal in manner. However, viscera preserved for analysis to exclude any concomitant poisoning. The time since death were mentioned 36 to 48 hours. This is the post-mortem report of deceased Fatema Khatun prepared and signed by myself, Dr. Ranjit Kr. Das and Dr. Jayanta Sankar Chakraborty each pages containing 5 pages. I know the signature of Dr. Ranjit Kr. Das and Dr. Jayanta Sankar Chakraborty. These are my signature and the signatures of Dr. Ranjit Kr. Das and Dr. This is the post-mortem report of deceased Fatema Khatun prepared and signed by myself, Dr. Ranjit Kr. Das and Dr. Jayanta Sankar Chakraborty each pages containing 5 pages. I know the signature of Dr. Ranjit Kr. Das and Dr. Jayanta Sankar Chakraborty. These are my signature and the signatures of Dr. Ranjit Kr. Das and Dr. Jayanta Sankar Chakraborty on identification which are marked as Exhibit-9, Exhibit-9/1, Exhibit-9/2 and Ex-hibit-9/3 (as a whole)." Being confronted with cross-examination, the doctor denied the suggestion put forth by the accused side in the manner as follows: "It is not a fact that the presence of external ligature mark on the lower part of left side of front of the neck would be the only basis of finding that it is a case of strangulation." He further denied the suggestion that their opinion regarding the cause of death of deceased Fatema Khatun is asphyxia due to strangulation by ligature, was not proper. 25. After close scrutiny of the evidence of PW-5, the complainant and PW-12, the doctor, it has come to light that at the very first instance PW-5 and her companions had noticed black mark on the left side of the neck of the deceased Fatema which finds support from the nature of injuries that are detected by PW-12 and his associate doctors during post-mortem examination. It is specifically stated that a dark brown coloured, transversely placed, non-continuous, parchmentised and slightly depressed ligature mark was present over lower part of left side of front of the neck of the deceased. It is clearly mentioned that the ligature mark was ante mortem in nature and age of the mark was fresh at the time of death and this type of ligature mark is found in case of strangulation by soft and broad material. Similar mark was also noticed by PW-8 and PW-13 and others when they uncovered the cloth from the face of the deceased. Thus the death of the lady was clearly homicidal and not suicidal. 26. We have seen that when the accused-appellant was noticed about the incriminating materials as opined by PW-12 regarding, the ligature mark and the cause of death by impact of blunt trauma which was possible by finger tips, then, he only replied, "I do not know". The accused- appellant was in the same house. 26. We have seen that when the accused-appellant was noticed about the incriminating materials as opined by PW-12 regarding, the ligature mark and the cause of death by impact of blunt trauma which was possible by finger tips, then, he only replied, "I do not know". The accused- appellant was in the same house. We do not find any defence taken by the accused-appellant that at the time of incident he was not in his house. Therefore, the accused-appellant is under the obligation to give plausible explanation as to how his. wife died due to asphyxia by way of strangulation and how there was ligature mark in the neck of his wife, particularly, as the injuries mentioned at SI. Nos. 2 and 3 as deposed by the medical officer, are ante mortem in nature. But, he could not come forward with any such explanation in his defence which prompted us to draw the hypothesis that it was the accused-appellant and none else who had killed his wife, Fatema Khatun. All circumstances thus point to the involvement of the accused. He was in the same house where his wife was killed. Her death is proved to be homicidal. His prime defence taken in cross-examination was that the death could be by way of suicide, which suggestion was repudiated by the doctor who had carried out the post-mortem. The accused offered no explanation to these adverse circumstances, taking a plea of total denial in his statement under section 313 of Cr.P.C. 27. For the reasons as discussed above, we do not find any ground to interfere with the judgment and order of conviction and sentence dated 28.06.2019, returned by the learned Sessions Judge, Sepahijala District, Sonamura in Case No. ST(T/1) 23 of 2016 and the same is upheld. Accordingly, the appeal stands dismissed. Send down the LCRs.