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2024 DIGILAW 367 (JHR)

Md. Aslam, S/o. Late Dukhan v. State of Jharkhand

2024-04-09

ANANDA SEN, SRI SUBHASH CHAND

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JUDGMENT : Subhash Chand, J. Heard learned counsel for the appellant and learned P.P. for the State. 2. The instant criminal appeal is preferred on behalf of the appellant against the impugned Judgment of conviction dated 12th August, 2016 and Order of sentence dated 24th August, 2016 passed by the Additional Sessions Judge-I, Godda in Sessions Trial No.135 of 2011, whereby, the appellant has been convicted for the offence under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life for the offence under Section 302 of the I.P.C. along with fine of Rs.5,000/- and in case of non-payment of fine, he was further directed to undergo simple imprisonment for six months. 3. The brief facts leading to this criminal appeal are that informant Jalaluddin had given the written information with the police station concerned with these allegations that his sister Juleshan Khatoon was married three years ago with Md. Aslam. One child was also born out of the said wedlock. Thereafter, Aslam divorced his sister. On making demand of ‘Den-Mohar’ (dower), the people of the village asked them, what will happen of the child born out of the said wedlock. Again at the behest of the villagers, Juleshan Khatoon was got married with Md. Aslam. Md. Aslam had dropped his four years old son, who died during treatment and Aslam began to torture his sister. On 6th March, 2011, at 12 o’ clock in the night, Md. Aslam had informed over the mobile phone to the informant that his sister Juleshan Khatoon was no more. He asked the cause of death of his sister from Md. Aslam, who told that she was complaining for the stomach ache and on account of the same, she succumbed. On 7th March, 2011, he along with 20 to 25 persons of the village reached to the in-law’s house of his sister and found her dead body. On her neck, there was swelling and red colour mark. Indeed, the said death was caused by Aslam, so that he could not pay the dower on divorcing his sister after the first marriage. 4. On this written information, the Case Crime No.39 of 2011 was registered with the police station Mahagma, District Godda under Sections 302/34 of the Indian Penal Code against Md. Aslam and two to three unknown persons. 4. On this written information, the Case Crime No.39 of 2011 was registered with the police station Mahagma, District Godda under Sections 302/34 of the Indian Penal Code against Md. Aslam and two to three unknown persons. The Investigating Officer after having concluded the investigation filed charge-sheet to the Court of Magistrate concerned who after taking cognizance thereon committed the case for trial to Sessions Judge, Godda. Further, the Sessions Judge Gooda transferred the same for trial to Second Additional District and Session Judge, Godda. 5. The Trial Court framed the charge against the accused under Sections 302/201/34 of Indian Penal Code. The charges were read over and explained to the accused, who denied the charge and claimed for trial. 6. On behalf of the prosecution to prove the charge against the accused in oral evidence examined P.W.1-Md. Nazir, P.W.2-Md. Nizam, P.W.3- Md. Amjad, P.W.4-Md. Mustfa, P.W.5-Md. Nasim, P.W.6-Jalaluddin (the informant), P.W.7-Dr. Pradeep Kumar Sinha, P.W.8-Gunadhar Mahto, P.W.9-Dukha Das and P.W.-10 Kameshwar Kumar Singh. 7. On behalf of the prosecution in documentary evidence adduced Ext.1 signature of Md. Nasim on the fardbeyan, Ext.1/1 fardbeyan, Ext. 1/2 endorsement on the fardbeyan, Ext.2 Postmortem report, Ext.2/1 signature of Dr. Pradeep Kumar Sinha on the carbon copy of postmortem report, Ext.3 Inquest report, Ext.4 Formal FIR, Ext.4/1 Signature of Rameshwar Kumar Singh on the Formal FIR. 8. The statement of the accused under Section 313 of the Cr.P.C. was recorded who denied the incriminating circumstances against him in the evidence and stated to be innocent. 9. No defence evidence was adduced on behalf of the accused. 10. The trial court after hearing the learned counsel for the parties passed the impugned judgment of conviction dated 12th August, 2016, convicting the appellants for the offence under Sections 302 of the I.P.C. and sentenced as stated in paragraph 1 of this judgment. 11. The aforesaid convict/appellant being aggrieved with the impugned judgment of conviction dated 12th August, 2016 and order of sentence dated 24th August, 2016 preferred the present criminal appeal. 12. We have heard learned counsel for the appellant and learned P.P. for the State of Jharkhand and perused the materials available on record. 13. 11. The aforesaid convict/appellant being aggrieved with the impugned judgment of conviction dated 12th August, 2016 and order of sentence dated 24th August, 2016 preferred the present criminal appeal. 12. We have heard learned counsel for the appellant and learned P.P. for the State of Jharkhand and perused the materials available on record. 13. In order to decide the legality and propriety of the impugned judgment of conviction and order of sentence passed by the learned trial court, we would like to re-appreciate the evidence on record, which are reproduced herein below : 13.1 P.W. 1- Md. Nazir, in his examination-in-chief says that deceased was his niece. There was dispute between his niece and her husband-Aslam on the issue of dower. In cross-examination, this witness says, police did not interrogate him. 13.2 P.W. 2- Md. Nizam, in his examination-in-chief says that Juleshan Khatoon was his cousin sister. Having received the information in regard to her death, he also reached to her in-law’s house and found Juleshan Khatoon dead. It appeared that she was throttled to death on the issue of dower which her husband Md. Aslam did not want to give. In cross-examination this witness says that it is wrong to say that Juleshan Khatoon used to complain for stomach ache for which treatment was being done by the physician. It is also wrong to say that on account of the said pain, Juleshan Khatoon died. 13.3 P.W. 3- Md. Amjad in his examination-in-chief says that after having received the information in regard to the death of Juleshan Khatoon, he also reached to the in law’s house and found her dead body. There was red colour mark on her neck. It came to know that Md. Aslam had committed murder of her. In cross-examination, this witness says that police did not interrogate him. 13.4 P.W. 4- Md. Mustafa, in his examination-in-chief says that two years ago, Juleshan Khatoon was killed by her husband. He also reached to her house and found Juleshan Khatoon dead. In cross-examination, this witness says that he had heard in regard to committing murder of Juleshan Khatoon by her husband. 13.5 P.W. 5- Md. Nasim in his examination-in-chief says that Juleshan Khatoon was married with Md. Aslam. After some days of marriage, he tortured her and also divorced her. One son was also born out of the said wedlock. In cross-examination, this witness says that he had heard in regard to committing murder of Juleshan Khatoon by her husband. 13.5 P.W. 5- Md. Nasim in his examination-in-chief says that Juleshan Khatoon was married with Md. Aslam. After some days of marriage, he tortured her and also divorced her. One son was also born out of the said wedlock. On account of the decision in Panchayat, Aslam again got married with Juleshan Khatoon and again he began to torture her. He had also dropped her son who succumbed to the injuries. Having received the information of her death, he also reached to her in-law’s house and found her dead body. There was red colour mark on her neck. He also put his signature on the fardbeyan which was marked as Ext 1. In cross-examination, this witness says that deceased was his cousin sister. Juleshan Khatoon was not ill. Police had interrogated him. He had told to police that Aslam used to torture Juleshan. It is wrong to say that Juleshan died on account of the stomach ache from which she had been suffering long time back. 13.6 P.W. 6- Jalaluddin (the informant) reiterated the contents of the written information in his examination-in-chief and proved the fardbeyan as Ext. 1/1. In cross-examination, this witness says that Darogaji had recorded his restatement. He did not say to Darogaji in regard to the divorce. It is wrong to say that his sister used to complain of the stomach ache and the treatment of the same was being done by the physician. It is also wrong to say that her sister died on account of the stomach ache. 13.7 P.W. 7- Dr. Pradeep Kumar Sinha, in his examination-in-chief says that on 8th March, 2011, he was posted as Medical Officer at Sadar Hospital, Godda and conducted the postmortem of the dead body of Juleshan Khatoon and found following ante-mortem injuries :- i. One bruise on the left side of the neck of the size 1” x 1/4”. ii. Defuse swelling on the neck in the front and left antrolateral aspect. Dissection of the neck revealed congested in the larynx and trachea.” The P.W.-7 has opined that time since death was within 24 to 48 hours and cause of death was due to throttling leading to asphyxia and death. ii. Defuse swelling on the neck in the front and left antrolateral aspect. Dissection of the neck revealed congested in the larynx and trachea.” The P.W.-7 has opined that time since death was within 24 to 48 hours and cause of death was due to throttling leading to asphyxia and death. 13.8 P.W. 8- Gunadhar Mahto (the I.O.), in his examination-in-chief says that he has brought the postmortem report of deceased Juleshan Khatoon vide letter dated 7th May, 2013 of Superintendent of Sadar Hospital, Godda which is the carbon copy. It was prepared under the same process as original one. The original and the carbon copy of the inquest report is also brought by him which is being produced in court. 13.9 P.W. 9- Dukha Das, in his examination-in-chief says that he recorded the fardbeyan of informant Jalaluddin which in his handwriting and signature marked Exhibit 1/1. He got the thumb impression of the informant Jalaluddin and witness Sultan and Md. Nasim and also put the signature thereon. He also prepared the inquest report of deceased which was signed by Md. Nazam and Md. Nasim. The inquest report in his handwriting and signature. Carbon copy of the same is on record which was marked Ext.3. The postmortem report was also received by him. He identified the endorsement on the fardbeyan of Sri. K.K. Singh, Station-in-charge of the police station which was marked Exhibit 1/2. Formal FIR also bears the signature of the Station-in-charge of the police station. He identifies the same which was marked as Ext. 4. Before him, the investigation was conducted by Babu K. K. Singh, who had recorded the statement of witnesses. He filed the charge-sheet. 13.10 P.W. 10- Kameshwar Kumar Singh is the first I.O. of this case who stated that having received the information in regard to the murder, he along with police force and Sub-Inspector Dukha Das reached to place of occurrence. The investigation was handed over to him. He inspected the place of occurrence and recorded the restatement of informant, Md. Nasim, Md. Amzad, Md. Nazir and after that he was transferred and investigation was taken over by Dukha Das. In cross-examination, this witness says that Md. Nazir and Md. Nasim have not stated to him that Md. Aslam used to torture Juleshan, rather stated that used to hurl abuse and harass. 14. The prosecution case is based on circumstantial evidence. Nasim, Md. Amzad, Md. Nazir and after that he was transferred and investigation was taken over by Dukha Das. In cross-examination, this witness says that Md. Nazir and Md. Nasim have not stated to him that Md. Aslam used to torture Juleshan, rather stated that used to hurl abuse and harass. 14. The prosecution case is based on circumstantial evidence. The marriage of deceased with the appellant is admitted. This fact is also admitted that the death of the deceased was caused in the house of the appellant. 15. The motive of the occurrence is that there was strained relationship between deceased and her husband. The reason whatever may be, whether it was on the issue of dower. In regard to the strained relation between deceased and her husband, all the prosecution witnesses, who are relative of the deceased have stated that relation between the deceased and her husband was strained and he used to torture deceased. None of the prosecution witness had seen the occurrence. Only the relation between the deceased and her husband has been highlighted by these witnesses which were strained. 16. As the death of deceased Juleshan Khatoon was caused in the house of her husband and this fact is also proved from the evidence on record that deceased and the appellant who were present in the house on the fateful night. On the very fateful night, appellant had informed to the informant in regard to the death of his wife and on being asked by the informant, what was the cause of death, it was told that she died on account of stomach ache. This reason is also disclosed by the appellant to the informant while apprising in regard to the death of his wife. 17. Not only this, on behalf of the accused to all the prosecution witnesses, this suggestion was given that the deceased had been suffering from stomach ache whose treatment was going on and on account of the stomach ache, she died. This is the only explanation on behalf of the appellant/convict in regard to the cause of death. 18. It is the settled law that first the prosecution is to prove its case beyond all reasonable doubts. Thereafter, the burden of proof shifts upon the accused to explain the incriminating circumstances. 18.1 From the testimony of the prosecution witness P.W.-1 Md. Nazir, P.W.-2 Md. Nizam, P.W.-3 Md. Amjad, P.W.-4 Md. 18. It is the settled law that first the prosecution is to prove its case beyond all reasonable doubts. Thereafter, the burden of proof shifts upon the accused to explain the incriminating circumstances. 18.1 From the testimony of the prosecution witness P.W.-1 Md. Nazir, P.W.-2 Md. Nizam, P.W.-3 Md. Amjad, P.W.-4 Md. Mustafa, P.W.-5 Md. Nasim and P.W.-6 Jalauddin, it is found that all these witnesses after having received the information in regard to the death of sister of the informant reached to her in-law’s house and found her dead body and there was injury on her neck from which it appeared that the sister of the informant was throttled to death. The testimony of all these witnesses is also corroborated with medical evidence. P.W.- 7 Dr. Pradeep Kumar Sinha who conducted the postmortem of the deceased has stated that he found one bruise on the left side of the neck of the size 1”x1/4” and defuse swelling on the neck in the front and left antrolateral aspect. He opined the cause of death due to throttling leading to asphyxia and death. From the testimony of the prosecution witnesses which is corroborated with the medical evidence. It is found that the death of sister of the informant was homicidal which was caused in her matrimonial house and admittedly the appellant was also present in the house along with the deceased at the time of occurrence, though the appellant has explained the cause of death on account of stomach ache of the deceased which is belied from the medical evidence. Thereafter, the burden of proof shifts upon the appellant/convict to explain, how the homicidal death of deceased was caused in his own house, more so when he was alone at the house along with the deceased at the time of occurrence. 19. On behalf of the appellant convict, this explanation is being given that deceased died on account of the stomach ache from which she had been suffering. But this explanation is belied from the medical evidence adduced on behalf of the prosecution. P.W.-7 Dr. Pradeep Kumar Sinha, who had conducted the postmortem of deceased Juleshan Khatoon had stated the cause of death was throttling leading to asphyxia. The P.W.-7 while proving the postmortem report as Ext. 1. He has also shown the ante-mortem injury which are already stated in paragraph 20 of this judgment. 20. P.W.-7 Dr. Pradeep Kumar Sinha, who had conducted the postmortem of deceased Juleshan Khatoon had stated the cause of death was throttling leading to asphyxia. The P.W.-7 while proving the postmortem report as Ext. 1. He has also shown the ante-mortem injury which are already stated in paragraph 20 of this judgment. 20. From the medical evidence, it is well proved that the cause of death was homicidal, as the homicidal death which was caused in the house of the appellant, who himself was present at the time of occurrence along with deceased, the explanation given by him that deceased died on account of the stomach ache is belied from the medical evidence. Therefore, strong adverse inference is being raised against the appellant that it was appellant, who had committed the homicidal death of his wife in his own house. 20.1 The Hon’ble Apex Court in the case of Prem Singh vs. State of NCT of Delhi reported in 2023 Livelaw (SC) 2 at paragraph 16.4.1 has held as under : “16.4.1. It is, of course, the duty of prosecution to lead the primary evidence of proving its case beyond reasonable doubt but, when necessary evidence had indeed been led, the corresponding burden was heavy on the appellant in terms of Section 106 of the Evidence Act to explain as to what had happened at the time of incident and as to how the death of the deceased occurred. There had not been any explanation on the part of the appellant and, as noticed, immediately after the incident, he attempted to create a false narrative of accidental drowning of the children. There had not been any specific response from the appellant in his statement under Section 313 CrPC either.” 20.2 The Hon’ble Apex Court in the case of Gajanan Dasrath Kharate vs. State of Maharashtra reported in AIR 2016 SC 1255 at paragraphs 12 and 14 has held as under : “12. As seen from the evidence, appellant-Gajanan and his father-Dashrath and mother-Mankarnabai were living together. On 07.04.2002, mother of the appellant-accused had gone to another village-Dahigaon. Prosecution has proved presence of the appellant at his home on the night of 07.04.2002. Therefore, the appellant is duty bound to explain as to how the death of his father was caused. As seen from the evidence, appellant-Gajanan and his father-Dashrath and mother-Mankarnabai were living together. On 07.04.2002, mother of the appellant-accused had gone to another village-Dahigaon. Prosecution has proved presence of the appellant at his home on the night of 07.04.2002. Therefore, the appellant is duty bound to explain as to how the death of his father was caused. When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer. On the date of occurrence, when accused and his father Dashrath were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries. When the accused could not offer any explanation as to the homicidal death of his father, it is a strong circumstance against the accused that he is responsible for the commission of the crime. 14. Upon appreciation of oral evidence and the circumstance of the recovery of blood stained clothes of the accused and the conduct of the accused in not offering any explanation for the homicidal death of his father, by concurrent findings, the trial court and the High Court rightly convicted the appellant-accused under Section 302 IPC and we do not find any reason to interfere with the impugned judgment.” 21. After critical appraisal of the prosecution evidence available on record, we are of the considered opinion that the prosecution has been successful to prove the case against the convict/appellant beyond reasonable doubt and the impugned judgment of conviction and sentence passed by the learned trial court requires no interference by this Court. 22. Accordingly, this appeal is dismissed and the impugned judgment of conviction dated 12th August, 2016 and order of sentence dated 24th August, 2016 passed by the learned Additional Sessions Judge-I Godda in S.T. Case No.135 of 2011 is, hereby, affirmed. 23. 22. Accordingly, this appeal is dismissed and the impugned judgment of conviction dated 12th August, 2016 and order of sentence dated 24th August, 2016 passed by the learned Additional Sessions Judge-I Godda in S.T. Case No.135 of 2011 is, hereby, affirmed. 23. The appellant is already in jail and he is directed to serve out the rest of the sentence. Let the lower court's record be sent to the court concerned forthwith along with a copy of this judgment. 24. Pending interlocutory applications shall also stand disposed of.