Research › Search › Judgment

Gauhati High Court · body

2025 DIGILAW 2000 (GAU)

Jahanuddin Ali v. State of Assam Rep. By Pp

2025-12-08

MICHAEL ZOTHANKHUMA, N.UNNI KRISHNAN NAIR

body2025
JUDGMENT : M. Zothankhuma, J. Heard Ms. M. Barman, learned Amicus Curiae for the appellant. Also heard Ms. A. Begum, learned Addl. P.P. for the State. 2. The appellant has put to challenge the judgment dated 08.12.2020, passed by the learned Addl. Sessions Judge, Bilasipara in Sessions Case No.18/2019, by which the appellant has been convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life with a fine of Rs.5,000/, in default, to undergo rigorous imprisonment for 2 months. 3. The learned Amicus Curiae for the appellant submits that there is no eye witness to the murder of the appellant’s wife. She also submits that there is no circumstantial evidence to prove that the appellant had killed his wife with a sharp weapon, even though the appellant had surrendered before the police with a dao. The learned Amicus Curiae submits that the weapon (dao) that had been seized by the police from the appellant had not been sent to the Forensic Science Laboratory for examination and there was no bloodstain on the dao. She also submits that in his examination under Section 313 Cr.P.C, the appellant had given an explanation to the last question, to the effect that the informant (PW-1), the step-brother of the deceased, had killed the deceased, as they were both claiming the property of their mother. She submits that the fact that the informant and the deceased were having a property dispute is also reflected in the evidence of PW-4 in his cross-examination, wherein he has stated as follows:- “There was dispute among Dilbar, Pashan and Sabura’s mother over landed properties” 4. The learned Amicus Curiae further submits that the mothers of the informant and the deceased are different, while they share the same father. The learned Amicus Curiae thus submits that the circumstantial evidence does not form a complete chain for conviction of the appellant by the learned Trial Court. Accordingly, the impugned judgment should be set aside. 5. Ms. A. Begum, learned Addl. P.P. submits that the appellant had surrendered himself before the police in the police station immediately after the incident, along with the weapon that he used for cutting her. She submits that though the dao had not been sent for forensic examination, inasmuch as, there was no bloodstain on the dao, the said weapon had been exhibited during trial as Material Exhibit No.1. She submits that though the dao had not been sent for forensic examination, inasmuch as, there was no bloodstain on the dao, the said weapon had been exhibited during trial as Material Exhibit No.1. She submits that there is no evidence to show that the appellant was not at the place of occurrence on the night of the murder and in the absence of any explanation by the appellant, with regard to the cause of death of the deceased under Section 106 of the Evidence Act, the same would amount to another link in the circumstantial evidence, pointing towards the guilt of the appellant. 6. We have heard the learned counsels for the parties. 7. The prosecution case in brief is that PW-1, who is the step brother of the deceased, filed an FIR dated 18.06.2018 around 10 p.m before the O/C of the Bilasipara Police Station, stating that between 9-9:30 p.m on 17.06.2018, the appellant had caused grievous injury to his sister by hitting her with the dao, during the absence of his mother from the house. Though his sister was admitted to the Bilasipara Civil Hospital in an injured condition, she was referred to Kokrajhar Civil Hospital for better treatment. However, she died on the way to Kokrajhar. Pursuant to the FIR, Bilasipara Police Station Case No.686/2018 under Section 302 IPC was registered. After the Investigating Officer, i.e, PW-10 concluded the investigation, he submitted a charge-sheet against the appellant, on having found a prima facie case under Section 302 IPC against the appellant. However, prior to the filing of the FIR filed on 18.06.2018 at around 10 p.m, as per the evidence of PW-9, who is the Assistant Sub-Inspector of Nayer Alga Police Outpost, the appellant had appeared at the Police Outpost at 10 p.m. on 17.06.2018 with a dao and had confessed that he had killed the deceased (wife). 8. After the case was committed to the learned Trial Court, charge under Section 302 IPC was framed, to which the appellant pleaded not guilty and claimed to be tried. 9. The learned Trial Court thereafter examined 12 prosecution witnesses and after examining the appellant under Section 313 Cr.P.C, where he gave a blanket denial to all the evidence adduced against him by stating “it is false”. 9. The learned Trial Court thereafter examined 12 prosecution witnesses and after examining the appellant under Section 313 Cr.P.C, where he gave a blanket denial to all the evidence adduced against him by stating “it is false”. The learned Trial Court thereafter came to a finding that the appellant had killed his wife, as the appellant had surrendered himself with a dao in the police outpost and as the appellant had not disproved the fact that he was in the house when the incident had occurred. As such, the learned Trial Court convicted the appellant under Section 302 IPC and sentenced him accordingly. 10. The evidence of PW-1, who is the brother of the deceased, is to the effect that he identified the appellant in the dock. On the day of the occurrence the deceased was in her mother’s house and a quarrel took place between the appellant and the deceased. At that moment he was in his own house. On hearing someone crying in the house of the deceased, he went there and he saw the deceased lying on the ground, but he did not see the appellant. The mother of the deceased was also not there. The child of the deceased was crying. He noticed injuries on the entire body of the deceased. Thereafter the deceased was taken to Bilasipara Civil Hospital, where she succumbed to her injuries. In his cross-examination, PW-1 stated that the deceased and the appellant have a 4 year old son. Further, his mother and the mother of the deceased were not the same. He also stated that the deceased and the appellant were leading a peaceful conjugal life. He denied the suggestion that he had killed the deceased over issues for landed property. The examination of PW-1 shows that the appellant was not present at the place of occurrence when PW-1 entered the house, while a crying child was there along with the injured deceased. PW-1 is half brother of the deceased, inasmuch as, they share the same father but have different mother. 11. The evidence of PW-2, who is the father of PW-1 and the deceased, is to the effect that the appellant and the deceased had married each other 5/6 years ago. The deceased was staying in her house and the appellant had also come to his house a day before the incident. 11. The evidence of PW-2, who is the father of PW-1 and the deceased, is to the effect that the appellant and the deceased had married each other 5/6 years ago. The deceased was staying in her house and the appellant had also come to his house a day before the incident. As the appellant had come to his house, PW-2 had gone to the house of another person and stayed there. He heard the deceased crying at night. Innat Ali, who was a boy of the family in whose house PW-2 was staying, went to PW-2’s house and on returning, he told him that the appellant had cut the deceased and left. On going to his house, PW-2 saw Safura’s body and Safura told him that the appellant would have cut him too if he was there. PWs-1, 3 & others thereafter came to the place of occurrence. The appellant then went to the police station with the dao. The deceased was taken to the Bilasipara Civil Hospital and she died on the way to Kokrajhar, as she was referred to Kokrajhar. However, Innat Ali has not been made a prosecution witness. 12. The evidence of PW-3, who is another brother of the deceased, is to the effect that the appellant used to reside in the house of the deceased. PW-3 had gone to the house of the deceased when he heard the son of the deceased screaming. He saw the deceased lying on the ground. The appellant had fled from the place of occurrence and had surrendered before the Nayer Alga Police Outpost with a dao. The police came and took away the deceased, who was taken to the Bilasipara Civil Hospital and then to Kokrajhar. However, she died on the way. In his cross-examination, PW-3 stated that he did not witness the killing. 13. The evidence of PW-4 is to the effect that the appellant and the deceased used to live in the deceased’s mother’s house. On hearing the crying of the son of the deceased around 7 p.m., he went to the house of the deceased and found her lying on the ground with blood oozing out from her body. When other people came, he made a search for the appellant. Later on, he learnt that the appellant had gone to the Nayer Alga Police Outpost with a dao. 14. When other people came, he made a search for the appellant. Later on, he learnt that the appellant had gone to the Nayer Alga Police Outpost with a dao. 14. The evidence of PW-5 is to the effect that the incident took place at around 7-8 p.m. Hearing a commotion in the house of the deceased, he went there and noticed injuries on various parts of the body of the deceased. He stated that the appellant surrendered in the police station. He was also a seizure witness to the seizure of clothes from the place of occurrence. He also stated that he did not see the appellant at the place of occurrence. 15. The evidence of PW-6 is to the effect that he went to the house of the deceased when he heard a commotion. Thereafter, his evidence is basically hearsay. 16. The evidence of PW-7 is that the incident took place around 10 p.m, while he was sleeping. On hearing a commotion, he went to the deceased’s house and saw her lying on the ground. He also stated that the deceased had told him that the appellant had cut her. Later, he heard that the appellant had surrendered at the Nayer Alga Police Outpost. In his cross-examination, he stated that he did not tell the police that the deceased had told him that appellant had assaulted her. 17. The evidence of PW-8 is that on hearing a commotion, he went to the house of the deceased and saw her lying on the ground. He also heard that the appellant had surrendered at the Nayer Alga Police Outpost. 18. The evidence of PW-9 is to the effect that he was working as an ASI at Nayer Alga Police Outpost. A person armed with a dao came to the outpost at around 10 p.m on 17.06.2018, stating that he had killed the deceased. Taking the dao from his possession, PW-9 put the appellant in police custody. He also made G.D. Entry No.193 dated 17.06.2018. On going to the place of occurrence, he saw the deceased lying inside the house in an injured condition, in a pool of blood. At that time, the injured was lying in an unconscious state. He then took the injured to the Bilasipara Civil Hospital, from where she was being taken to Kokrajhar for better treatment. However, she succumbed to her injury on the way. At that time, the injured was lying in an unconscious state. He then took the injured to the Bilasipara Civil Hospital, from where she was being taken to Kokrajhar for better treatment. However, she succumbed to her injury on the way. The next morning, PW-1 lodged an FIR with the Bilasipara Police Station and on the basis of the FIR, Bilasipara Police Station Case No.686/2018 under Section 302 of IPC was registered. In his cross examination, PW-9 stated that he did not record the statement of the appellant. He also stated that there was no blood stain on the seized dao. 19. The evidence of PW-10 is to the effect that he was an SI in the Bilasipara Police Station and on 18.06.2018, PW-1 lodged an FIR, on the basis of which, Bilasipara Police Station Case No.686/2018 under Section 302 IPC was registered. On investigating the matter, he learnt that the appellant surrendered at the Nayer Alga Police Outpost. The In-charge of the outpost had also handed over the appellant to the police at Bilasipara Police Station and had sent the injured to hospital. He recorded the statement of the witnesses, went to the place of occurrence and drew the sketch map. He also had the inquest of the body done by the Circle Officer. He also seized one blood stained sari, one petticoat and a red blouse, which the deceased was wearing. The appellant was arrested and sent to judicial custody. He thereafter submitted a charge-sheet under Section 302 IPC against the appellant. In his cross-examination, PW-10 stated that he did not send the dao for examination to the FSL. 20. The evidence of PW-11, who is the Senior Medical & Health Officer, Dhubri Civil Hospital, is to the effect that on 18.06.2018 he conducted post-mortem examination on the dead body of the deceased and he found the following:- “1) Injury: Incise wound on exterior aspect of right soldier. 2 cm x 1 cm x muscle deep. 2) Incise wound of right arm around the elbow joint with complete cut of humerus at lower end, partial imputation of the limb. 3) Incise wound on right hand on little finger side of 3 cm x 2 cm x 1 cm. 4) Incise wound on right thumb, it is absent. 5) Incise wound on right chest on later aspect 10 cm x 1 cm x ½ cm. 3) Incise wound on right hand on little finger side of 3 cm x 2 cm x 1 cm. 4) Incise wound on right thumb, it is absent. 5) Incise wound on right chest on later aspect 10 cm x 1 cm x ½ cm. 6) Incise wound on right soldier on back side of size 4 cm x 2 cm x 1 cm. 7) Incise wound on right side of chin of size 4 cm x 2 cm x 1 cm. 8) Incise wound on left side back on waist of size 5 cm x 2 cm x 1 cm. 9) Incise wound on abdomen on left side of size 3 cm x 2 cm x peritoneal cavity depth. 10) Incise wound of left side of neck of size 5 cm x 3 cm x ½ cm. 11) Incise wound of right scapular region of size 5 cm x 2 cm x 1 cm. 12) Incise wound on right side of neck behind the ear size 3 cm x 2 cm x 1 cm. 13) Incise wound on left fore arm near elbow joint, of size 5 cm x 2 cm x 1 cm. 14) Incise wound on back of scalp of left side, of 4 cm x 2 cm x bone partially cut. 15) Incise wound of scalp on left side on top of head & directed anterior posteriorally of size 8 cm x 2 cm x partial cut skull bone.” In the opinion of the PW-11, the cause of death was haemorrhage and shock as a result of multiple incise wounds sustained by the deceased which were ante mortem in nature. In his cross-examination, PW-11 stated that the injuries were caused with a sharp weapon and the same were inflicted consecutively. The injuries seemed to have been caused while the injured/deceased was standing as well as lying. 21. The evidence of PW-12, who is the Circle Officer of Bilasipara Revenue Circle, is to the effect that he had conducted inquest of the deceased on 18.06.2018 and he found the following:- “Cut injury on head. Cut injury on right ear. Cut injury on right shoulder. Cut injury on the elbow of right hand. Cut injury on right chest. Cut injury on the left shoulder. Cut injury on left stomach. Cut injury on the back (left)” 22. Cut injury on right ear. Cut injury on right shoulder. Cut injury on the elbow of right hand. Cut injury on right chest. Cut injury on the left shoulder. Cut injury on left stomach. Cut injury on the back (left)” 22. In his examination under Section 313 Cr.P.C., the appellant admitted that the deceased was his wife. However, he gave a stoic answer ‘it is false’ to most of the questions, except when he was asked the following:- “While adducing evidence, PW-1 Pashan Ali alleged that at that time you were not present at Safura Khatun’s house. What do you have to say?” To this, he answered “I cannot say.” 23. The appellant replied “it is false” to the question that PW-2 had alleged that on the night of the occurrence, the deceased was in another house located near her house. This answer implies that the appellant was aware where the deceased was at the time she was alive. The appellant has also answered “it is false” to the evidence of PW-2 that the appellant had appeared in the police station with a dao and that he was residing in the house of the deceased. 24. The incident apparently occurred between 7 to 10 p.m. on 17.06.2018 and the appellant surrendered before the police at around 10 p.m on the same night with a dao. The dao has been seized and exhibited, though there is no bloodstain on the dao. Though the dao could have been cleaned by the time it had been seized by the police, the same should have been sent to the FSL for examination. Nevertheless, the dao had been exhibited during the trial. Numerous injuries on the deceased show the ferocity with which a sharp-edged weapon has been used to cut the deceased. There is no reason to assume that the dao that had been seized by the police is not the murder weapon, inasmuch as, the reason for the appellant surrendering before the police at night soon after the incident, in our view, points only towards the guilt of the appellant. There can be no further explanation for the same, especially when the appellant has given a blanket denial to 98% of the questions put to him under Section 313 Cr.P.C, which he should have known. There can be no further explanation for the same, especially when the appellant has given a blanket denial to 98% of the questions put to him under Section 313 Cr.P.C, which he should have known. For example, he said “it is false” when asked the following questions: “ Question : While adducing evidence, PW-2 Rahima Bewa, alleged that one year ago you and Safura Khatun were residing in her house. What do you have to say? Answer : It is false. Question: While adducing evidence, PW-4 Nur Hussain alleged that around 7:00/8:00 p.m. one day about one year back (prior to 13/6/2019, i.e. the date of his adducing evidence) he heard the baby of Safura Khatun crying in her house. What do you have to say? Answer: It is false. Question: While adducing evidence, PW-4 Nur Hussain alleged that going to Safura Khatun's house he saw her lying on the ground. What do you have to say? Answer: It is false. Question: While adducing evidence, PW-4 Nur Hussain alleged that you appeared in Nayer Alga Out-Post. What do you have to say? Answer: It is false. Question: While adducing evidence, PW-4 Nur Hussain alleged that Safura Khatun was taken to Bilasipara Civil Hospital and that later she died. What do you have to say? Answer: It is false. Question: While adducing evidence, PW-7 Golam Hussain alleged that one day about one year ago, Safura Khatun’s mother stayed in a house of her neighbor. What do you have to say? Answer: It is false. Question: While adducing evidence, PW-7 Golam Hussain alleged that around 10:00 PM, hearing a commotion in the house of Safura Khatun’s mother, he went there. What do you have to say? Answer: It is false.” 25. The appellant has thus given the stoic answer “It is false” to 57 out of the 62 questions put to him under Section 313 Cr.P.C. The ones he has answered differently is his affirmation that he is the husband of the deceased. 26. The examination of the appellant under Section 313 Cr.P.C does not indicate or give rise to an inference that the appellant was not with the deceased at the time of the incident. On the other hand, it implies that the appellant was with the deceased at the time of incident, as there is no plea of alibi taken by him. The examination of the appellant under Section 313 Cr.P.C does not indicate or give rise to an inference that the appellant was not with the deceased at the time of the incident. On the other hand, it implies that the appellant was with the deceased at the time of incident, as there is no plea of alibi taken by him. Though the evidence of the witnesses proved that he had lived with his wife in the house of his mother-in-law, he has denied the same. 27. In terms of Section 106 of the Evidence Act, 1872, when any fact is established within the knowledge of any person, the burden of proving that fact is upon him. In the present case, there was no requirement for the appellant to have gone to the Nayer Alga Police Outpost at 10 p.m. after the incident had occurred on 17.06.2018. There is nothing remotely suggested by the appellant that he was not at the place of occurrence. No evidence has been laid by him taking the plea of alibi. As held by the Hon’ble Supreme Court in the case of Sukhpal Singh Vs. NCT of Delhi , Crl. A.55/2015, a bald plea of denial by an accused to a gravely incriminating circumstance is not sufficient to absolve him of the burden cast upon him by virtue of Section 106 of the Evidence Act. 28. The facts of the case thus show that there is no stand taken by the appellant that he was in a different place at the time the deceased was attacked, which would be around the time the baby started crying, on the basis of which PW-1 went to the house of the deceased. The evidence of PW-2 also indicates that the incident occurred sometime around the time the child of the deceased was crying. Though the appellant has denied in his Section 313 Cr.P.C examination that he had not surrendered before the police with a dao, the very fact that he had not denied his presence at the place of occurrence on the night when the incident occurred, implies that the appellant knew the cause of death of the deceased. Interestingly, the appellant was not seen in the place of occurrence though he stayed there with his wife and child, as he had fled to the Police Outpost. Interestingly, the appellant was not seen in the place of occurrence though he stayed there with his wife and child, as he had fled to the Police Outpost. In any event we do not find any reason to doubt the evidence of PW-9, who stated that the appellant had come to the police outpost with a dao. It is unfortunate that the appellant has declined to give any explanation or reason, not only with regard to the cause of death of his wife, but also with regard to the circumstantial evidence that he was present at the place of occurrence, at the time of the attack on the deceased. The evidence of the Medical Doctor shows that there were numerous incise wounds inflicted on the body of the deceased and in our view, it could have only been inflicted by the dao wielded by the appellant, as the appellant had appeared with the same before the police. Though the appellant has now tried to make out a case that PW-1 might have killed the deceased, as it was alleged that there was a property dispute between PW-1 and the deceased, by relying upon the evidence given by PW-4 in his cross-examination, we are not inclined to accept the same. In the evidence given by PW-4 during his cross-examination, PW-4 stated that there is a dispute among Dilbar, Pashan and the mother of the deceased over landed property. There is nothing to indicate that there was any land dispute between the deceased and her husband (PW-1), though there might have been a dispute between PW-1 and the mother of the deceased. 29. In the case of Sharad Birdhichand Sarda Vs. State of Maharashtra , reported in (1984) 4 SCC 116 , the Supreme Court held that the following conditions must be fulfilled before a case against an accused can be said to be fully established on circumstantial evidence: “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. State of Maharashtra , reported in (1984) 4 SCC 116 , the Supreme Court held that the following conditions must be fulfilled before a case against an accused can be said to be fully established on circumstantial evidence: “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 30. On considering the circumstantial evidence against the conditions/parameters laid down in Sharad Birdhichand Sarda (supra) , we find a complete chain of circumstantial evidence against the appellant, which points conclusively to the fact that the appellant had killed his wife with a dao and had thereafter fled and surrendered in the Police Outpost with the weapon (dao). We are, thus, of the view that the hypothesis on the basis of which the learned Trial Court has convicted the appellant shows that it is only the appellant that could have committed the crime. Further, there is no plea of alibi taken by the appellant for the relevant period of time. 31. On considering the fact that all the evidence points only to the hypothesis that it was only the appellant who could have killed his wife on that particular night, we do not find any ground to interfere with the impugned judgment dated 08/12/2020 passed by the Additional Sessions Judge, Bilasipara in Sessions Case No. 18/2019. 32. The appeal is accordingly dismissed. 33. Send back the TCR. 34. In appreciation of the assistance provided by the learned Amicus Curiae, her fees should be paid by the Assam State Legal Services Authority as per the norms.