Gauhati High Court
Shri Jamiruddin Ali vs The State Of Assam on 17 February, 2012
Author: A.K. Goel
Bench: A.K. Goel
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA,
MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH)
(PRINCIPAL SEAT AT GUWAHATI)
CRIMINAL APPEAL NO. 17(J) OF 2005
Shri Jamiruddin Ali,
Son Late Jainuddin
Villlage -Barapujia, P.S. Raha,
District- Nagaon, Assam.
.......... APPELLANT.
- VERSUS -
The State of Assam ...... RESPONDENT.
BEFORE HON'BLE CHIEF JUSTICE MR. A.K. GOEL HON'BLE MR. JUSTICE C.R. SARMA For the appellant :Mr. R.Goswami, Amicus Curiae.
For the respondent :Mr. K.A. Mazumdar, Addl. Public Prosecutor, Assam.
Date of hearing : 21.12.2011
Date of Judgment & order::: 17/02/2012
JUDGEMENT AND ORDER (CAV)
(C.R. Sarma, J)
[1] This appeal is directed against the judgment
and order, dated 11.02.2005, passed by the learned Crl. Appeal No. 17(J)/ 2005 Page 1 of 20 Additional District & Sessions Judge (Ad-hoc) F.T.C., Nagaon in Session's Case No. 259(N)/2003, arising out of G.R. Case No. 1019/2003 (corresponding to Raha P.S. Case No. 73/2003), under Section 302 IPC. [2] By the impugned judgment and order, the learned Addl. District & Sessions Judge convicted, Shri Jamiruddin Ali (hereinafter referred to as the appellant) under Section 302 of the Indian Penal Code (for short, the 'IPC') and sentenced him to suffer imprisonment for life and pay fine of Rs. 2,000/-(Rupees two thousand) only, in default, suffer rigorous imprisonment for another period of 6 (six) months for committing murder of his own wife and also convicted and sentenced him under Section 302 IPC to suffer imprisonment for life and pay fine of Rs. 2,000/ (Rupees two thousand) only, and in default, suffer rigorous imprisonment for another period of 6 (six) months for committing the murder of his minor daughter, by throwing her into river. It was directed that both the sentences shall run concurrently.
Crl. Appeal No. 17(J)/ 2005 Page 2 of 20 [3] Aggrieved by the said convictions and sentences, the convicted person, as appellant, has come up with this appeal from the jail.
[4] We have heard Mr. Ratul Goswami, learned Amicus Curiae, appearing for the appellant and Mr. K.A. Mazumdar, learned Additional Public Prosecutor, appearing for the State respondent.
[5] The prosecution case, in brief, is that Mustt. Sahera Khatun (in short the, "deceased) was married by the appellant, about five years prior to the date of the occurrence. Out of the said wedlock, a daughter was born to the said couple. At the time of occurrence, the said daughter, namely, Ms. Dilduwa Khatun, was 7 months old. On the fateful night of 13.06.2003, the said couple, alongwith their said minor daughter were living together, in their house and on the same night, at about 11.00 p.m., the appellant caused death of his said wife by inflicting injuries on her and thereafter killed his minor daughter (Dildua Khatun) by throwing her into the river 'Kalang'. The appellant was apprehended by the villagers and he made confession before the villagers admitting his guilt that he had killed the deceased as well as his said minor daughter. Crl. Appeal No. 17(J)/ 2005 Page 3 of 20 [6] Mustt. Saher Banu, mother of the deceased (PW-1) lodged an FIR (Ext. 4), with the police, on the following day i.e. on 14.06.2003, and the same was registered as a case under Section 302 IPC. Shri Sachindra Chandra Sharma (PW-7), S.I., on being entrusted by the Officer-in-Charge, Raha Police Station, launched investigation into the matter. He visited the place of occurrence and found the dead body of the deceased on her bed.
[7] Inquest report (Ext. 2) was prepared by Shri Naba Jyoti Ojha, Circle Officer, Nagaon (PW-4). The investigating Officer arrested the accused/ appellant, on being handed over by the village Headman and forwarded the dead body of the deceased for post- mortem examination. The dead body of the deceased- minor child, could not be recovered from the river Kalang.
[8] At the close of investigation, police submitted charge sheet (Ext. 3), under Section 302 IPC. The offence, being exclusively triable by the court of Sessions, the learned SDJM, Nagaon (Sadar) committed the case to the court of Sessions. Accordingly, the Crl. Appeal No. 17(J)/ 2005 Page 4 of 20 learned Additional Sessions Judge framed two separate charges under Section 302 IPC against the appellant for causing murder of his wife and his minor daughter. The charges were read over and explained to the appellant to which the accused appellant pleaded not guilty and claimed to be tried.
[9] The prosecution examined, as many as, 7 (seven) witnesses including the Medical Officer (PW-6), who performed the post-mortem examination in respect of the dead body of the deceased. The Executive Magistrate (PW-4) prepared the inquest report (Ext. 2) and, PW 7 investigated into the matter. PW Nos. 2, 3 and 5 are the non-official independent witnesses. PW-1 is the mother of the deceased.
[10] Relying on the extra-judicial confession, made by the appellant, before PW Nos. 3 and 5, the circumstantial evidence surfacing from the evidence, on record and considering the recovery of the incriminating weapon, the learned trial Judge convicted and sentenced the accused-appellant, as indicated above.
Crl. Appeal No. 17(J)/ 2005 Page 5 of 20 [11] Aggrieved by the said conviction and sentence, the appellant has come up with this appeal. [12] Mr. R. Goswami, learned Amicus Curiae, appearing for the appellant, taking us through the evidence, on record, has submitted that there is no direct or substantial evidence against the appellant and that the learned trial Judge committed gross error by convicting and sentencing the appellant, for which the appellant is entitled to be acquitted. [13] Supporting the impugned conviction and sentences, Mr. K.A. Mazumdar, the learned Addl. Public Prosecutor, has submitted that the extra-judicial confession, made before reliable and trustworthy person, can be relied upon to base the conviction. It is also contended that there is nothing, on record, to show that PW-3 and 5 had any adverse interest against the appellant to implicate him falsely.
In view of the above, it is submitted that the extra-judicial confession made before the said witnesses, coupled with the facts that the appellant, alongwith the deceased-wife and their deceased minor- child, used to live in the same house and that the dead Crl. Appeal No. 17(J)/ 2005 Page 6 of 20 body of the wife of the deceased was found in the next morning, in injured condition, are sufficient substantive evidence for holding that the appellant caused death of his wife and daughter. Therefore, learned Addl. Public Prosecutor has submitted that the learned trial Judge committed no error by recording the conviction and sentences aforesaid.
[14] In order to appreciate the counter arguments, advanced by the learned counsel, appearing for the parties and examine the correctness of the impugned judgment and order, we feel it appropriate to, briefly, scan the evidence on record.
[15] PW-1, Mustt. Sahar Banu , mother of the deceased, who lodged the FIR, deposed that the accused-appellant demanded a sum of Rs. 20,000/- (rupees twenty thousand) only, as dowry from them since prior to the occurrence and due to their failure to pay the said amount the appellant had killed his wife and minor daughter. According to PW- 1, her daughter was married by the appellant four years prior to the occurrence and she was informed by Musttt. Nazma Khatoon (not examined in this case) that the appellant Crl. Appeal No. 17(J)/ 2005 Page 7 of 20 had assaulted her daughter i.e. the deceased. On being so informed, PW 1 went to her said daughter's house and found that the appellant had assaulted her daughter causing injury to her person. According to this witness, the villagers had detained the appellant and that the later had confessed his guilt, before the villagers. She further stated that her daughter sustained injuries, on her throat and eyes, inflicted by the appellant. She further stated that the appellant had thrown his minor daughter into the river 'Kalang'. This witness, in her evidence, stated that she had seen the appellant assaulting her deceased-daughter. But this witness did not mention in the FIR (Ext. 4), lodged by her, that the appellant had assaulted the deceased. In the said FIR, she stated that the occurrence took place at 11.00 p.m. on 13.06.2003 and her deceased- daughter was found lying dead in her house, on the next day, at about 8.00 a.m. As revealed from the FIR, Mustt. Nazma Khatun (not examined) was the first person to visit the house of the appellant and she initially saw the dead body.
[16] In her cross-examination, this witness admitted that she had told the police that the Crl. Appeal No. 17(J)/ 2005 Page 8 of 20 Goanbura, namely, Mr. Kalu Sheikh had informed her, on 14.05.2003, that the appellant had killed her deceased daughter with an axe when the later, was sleeping and also that their minor daughter, 'Dildua Khatoon' was thrown into the river 'Kalang'. Therefore, it is found that at the first point of time, PW 1 stated, before the police, that she was informed by Mr. Kalu Sheikh about the death of her daughter. The FIR (Ext.
4) also indicates that she appeared in the place of occurrence after the incident. Therefore, her evidence that she had seen the appellant assaulting her daughter is not believable.
[17] Of course, her evidence indicates that the dead body of the deceased was lying in her house and that the minor daughter of the appellant was missing. According to this witness, the appellant had confessed his guilt to the effect that he had killed his wife and thereafter thrown his minor daughter into the river 'Kalang'.
[18] Md. Yunus Ali, deposing as PW 2, stated that he had performed Janaja of the deceased-wife of the Crl. Appeal No. 17(J)/ 2005 Page 9 of 20 appellant. He did not state anything incriminating against the appellant.
[19] Mr. Kalu Sheikh, who was the Government Gaonbura, deposed as PW 3. He stated that, receiving the information about the incident, he rushed to the house of the appellant, and that the appellant had confessed before him stating that, in between 12.00 midnight to 1.00 a.m. of the previous night, he had killed his wife by striking her with an axe. [20] According to PW-3, the appellant, after he had made confession, was detained by the villagers and the matter was informed to the police. He stated that the dead body of the deceased-wife of the appellant was found lying, on the bed, inside the room. He noticed the cut injuries in the face and head of the said deceased. According to this witness, the appellant had also confessed that he had thrown his minor child, namely, Dildoa Khatoon into the river 'Kalang' on the same night. He further stated that despite making attempt the body of the said child could not be recovered from the river. He also stated that the appellant had produced the axe, which was seized by the police vide Crl. Appeal No. 17(J)/ 2005 Page 10 of 20 Ext. No. 1. He was a witness to the inquest report (Ext.
2), made by the Magistrate. He exhibited his signature on the inquest report as Ext. 2(1). PW-3 was duly cross- examined on behalf of the defence, but no material contradiction could be elicited to render his evidence disbelievable, more particularly, with regard to extra- judicial confession, made by the appellant and the production of the axe before the police by the appellant. [21] PW-4 Shri Nabajyoti Ojah, was the Circle Officer, who conducted inquest, in respect of the dead body of the deceased-wife of the appellant, on 14-06- 2003. His evidence regarding the inquest remained un- challenged.
[22] Mr. Abdul Mannan (PW-5), a co-villager of the appellant, supporting the evidence of PW-3 aforesaid, stated that coming to know about the incident, he visited the house of the appellant and found that the villagers had detained the appellant. He further stated that, on being asked, the appellant had confessed that he had killed his wife and also that he had thrown his minor daughter into the 'Kalang River'. This witness stated that, at the time of making extra- Crl. Appeal No. 17(J)/ 2005 Page 11 of 20 judicial confession, many others, including Nasiruddin, Yunus Ali and Kalimuddin were present. He further stated that the appellant had produced a blood stained axe (Material Ext. No. 1), purporting to be the incriminating weapon, and he had handed over the same to the police. He was a witness to the seizure (Ext.
1) of the said axe. He exhibited the said axe as material Ext. No. 1 and his signature, thereon, as material Ext. No. 1(1).
[23] In tune with the the evidence of PW 3, he further stated that, though attempt was made to fish out the dead body of the minor child yet due to strong current of the water, the dead body could not be recovered.
[24] The medical officer, Dr. Bipul Kumar Baruah (PW-6), who conducted autopsy of the dead body of the deceased found the following injuries.
"(1) Incised wound from right ear across the face up to the nose 8 c.m. x 1 c.m. Musscle deep. Margin everted.
(2) Incised wound on the left side of the face from left mordible up to the Crl. Appeal No. 17(J)/ 2005 Page 12 of 20 left temporal region. Temporal bone incised the membrane temporal region of the head is torned. Blood clots present in the left temporal lobe with laceration.
Other are healthy. Heart left side and teeth right side contained dark fluid blood. Abdominal healthy but pale. Uternal normal size. "
The said medical officer opined that death was caused due to shock and haemorrhage, as a result of injuries sustained by the deceased. He exhibited the post-mortem report (Ext. 4) and his signature thereon as Ext. 4(1).
[25] Considering the length of the injury, the Medical Officer opined that the weapon used, was a long instrument like a Sword or a dao etc. He stated that the injuries were cut injuries.
[26] Admittedly, the axe, though a sharp cutting weapon, is not a long weapon/ instrument like a sword or a dao. Hence, medical evidence does not support the Crl. Appeal No. 17(J)/ 2005 Page 13 of 20 prosecution version that the seized axe was the incriminating weapon. That apart, no forensic examination has been done to establish that the seized axe was the weapon contained anything incriminating. Therefore, it can't be concluded that the seized axe was the weapon of assault. Hence, the seizure of the axe does not implicate the involvement of the appellant. [27] Now the question is whether the accused had caused the death of the deceased. The plea of the accused is that he was innocent and that he did not produce the axe.
[28] Except the evidence of PW-3 and PW-5, regarding extra-judicial confession and production of the axe, there is no other substantive evidence against the appellant. Law is well settled that the prosecution, in a criminal case, is required to prove the case, beyond, all reasonable doubt. Extra-judicial confession can be basis for conviction if the same is found to be reliable and trustworthy. The test of reliability rests on the credibility of the person, before whom the confession is claimed to be made.
Crl. Appeal No. 17(J)/ 2005 Page 14 of 20 [29] Admittedly, all the witnesses, more particularly, PWs 3 and 5 had assembled in the place of occurrence, after the discovery of the dead body by one Ms. Nazma Khatun. She being the first person, to find the dead body, was a material witness. Her withholding raises doubt about the prosecution version.
According to PW Nos. 3 and 5, besides them other persons had appeared in the place of occurrence. Therefore, the confessional statement, if made, was certainly made in the presence and hearing of such other persons also. But none others, before whom the confession has been alleged to be made, was examined. Non-examination of such other witnesses, in support of extra judicial confession, raises doubt. [30] Shri Sachindra Chandra Sarma, who was the Investigating Officer, deposing as PW 7 stated that he found the axe near the dead body of the deceased and that he arrested the accused-appellant, on being produced by the villagers, who had detained him. Therefore, from the evidence of the Investigating Officer, it is found that the axe was found lying near the dead body. Hence, the evidence of PW 3 and PW -5 that the axe was seized, on being produced by the accused, is Crl. Appeal No. 17(J)/ 2005 Page 15 of 20 not correct. Therefore, it appears that PW-3 and PW -5 exaggerated by saying that the axe was produced by the appellant. This conduct of the PW 3 and PW 5 makes it unsafe to rely on them without corroboration. [31] PW-3 denied the suggestion, put to him, that he did not tell police (I.O) that the appellant had confessed that he had cut his wife and thrown his daughter into the river 'Kalang'. He also denied the suggestion that he did not tell the police that the appellant had shown the seized an axe to the police. [32] The I.O. (PW-7), who has examined as PW-3, in his cross-examination confirmed that Mr. Kalu Sheik (PW-3) did not tell him that Jamir uddin had confessed that he cut his wife and thrown his minor daughter into the river 'Kalang'. The I.O. also confirmed that PW 3 did not tell him that the appellant had shown the axe, which was seized by the police. We have already noticed the contradiction appearing in the evidence of PW 3 and PW 7 regarding the production of the axe and its seizure.
[33] From the above contradictions, regarding confessional statement, it is found that PW 3, at the Crl. Appeal No. 17(J)/ 2005 Page 16 of 20 initial stage of making statement before the police under Section 161 Cr. P.C. did not whisper anything regarding the confessional statement. The failure of PW 3 to disclose such vital fact, at the earliest possible opportunity, raises doubt about the veracity of such statement. Therefore, the evidence of PW 3 regarding confessional statement appears to be an improved version of his earlier statement. Therefore, it is not safe to rely on his evidence regarding confessional statement without corroboration on material point.
Suggestions were also given to PW-5, suggesting that he did not tell police that the appellant had confessed that he had killed his wife with an axe and thrown his baby into the river 'Kalang'. The I.O. (PW- 7) confirmed that PW 5 did not tell him that the accused had confessed his guilt. Failure of the PW -5 to disclose about the confession at the time of making statement under Section 161 Cr. P.C. indicates that he had improved his earlier version. Therefore, the evidence of PW-5 cannot be relied upon to base the conviction without corroboration.
[34] From the evidence of the Investigating Officer, it is found that the appellant had made Crl. Appeal No. 17(J)/ 2005 Page 17 of 20 confessional statement in his presence. The said confession, even if made before the police, cannot be acted upon, inasmuch as the appellant was already in police custody.
[35] From the FIR, it reveals that the dead body of the deceased was found at 8.00 a.m. The medical officer (PW-6), who performed the post-mortem examination, did not indicate the time of death. According to I.O. (PW-7), PW 3 told him that they had found the appellant in the paddy field, where from he was brought by the villagers. The plea of the accused is that he was brought from the paddy field, wherein he was ploughing.
No body saw the deceased in the company of the accused person prior to or immediately after the occurrence.
There is nothing on record to show that the deceased, immediately prior to her death was not the company of the appellant. Therefore, it is not safe to draw prosecution. This being the position the last seen thereby is applicable in the present case. Therefore, it is not safe to draw prosecution about the guilt of the appellant.
Crl. Appeal No. 17(J)/ 2005 Page 18 of 20 [36] That apart, PW -5, who claims that the appellant made confession, was also the writer of the FIR. He being the scribe of the FIR, should have disclosed regarding the confession, if any, in the FIR. Failure to disclose such vital information, in the FIR also raise doubt about the veracity of the prosecution version, more particularly, the evidence of PW- 5. [37] Considering the above contradictions, on material point, we do not find it safe to rely on the evidence of PW Nos. 3 and 5. If PW Nos.3 and 5 are not believed, there remains no substantive evidence regarding involvement of the appellant. [38] In the light of the above discussion, we are inclined to hold that the prosecution failed to prove the charge, beyond all reasonable doubt. Therefore, the appellant should be given benefit of doubt. [39] In view of the above, we find sufficient merit in this appeal requiring interference. The appeal is allowed. Consequently, the impugned conviction and sentence are set aside and quashed. The appellant is Crl. Appeal No. 17(J)/ 2005 Page 19 of 20 acquitted. He be set at liberty forthwith, if not required in any other case.
[40] We acknowledge, with appreciation, the assistance rendered by Mr. R. Goswami, learned counsel as amicus curiae and direct that an amount of Rs. 5,000/- (Rupees five thousand) only to be paid to the learned Amicus Curiae, as his remuneration, by the State Legal Service Authority.
JUDGE CHIEF JUSTICE
Eam/...
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