Gauhati High Court
Musstt Mamuda Begum And Anr vs The State Of Assam And Anr on 20 September, 2019
Author: M. R. Pathak
Bench: Manash Ranjan Pathak, Songkhupchung Serto
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GAHC010232132017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A. 61/2017
1:MUSSTT MAMUDA BEGUM and ANR
W/O LT. MOHAMMAD ALI
VERSUS
1:THE STATE OF ASSAM and ANR
Advocate for the Petitioner : MR.S KHAN
Advocate for the Respondent : PP, ASSAM
BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
HON'BLE MR. JUSTICE SONGKHUPCHUNG SERTO
Dates of Hearing : 19.09.2019 and 20.09.2019
Date of Judgment : 20.09.2019
JUDGMENT AND ORDER (ORAL)
(M. R. Pathak, J) Heard Mr. Moinul Hoque Choudhury along with Mr. M.K. Choudhury, learned counselsfor the accused appellants. Also heard Ms. Barnali Bhuyan, learned Additional Public Prosecutor, Assam for the State respondent No. 1. Though notice on the respondent No. 2, informant of the case, was served, but he did not enter appearance in the matter.
2. This criminal appeal is preferred by the accused appellants, namely, (1) Mustt. Mamuda Begum and (2) Md. Abdul Ali, against the judgment and order dated 18.02.2017, passed by learned Additional Sessions Judge, Sonitpur, Tezpur, in Sessions Case No. Page No.# 2/18 136/2011, corresponding to G.R. Case No. 1856/2009, arising out of Dhekiajuli Police Station Case No. 322/2009, whereby the appellants have been convicted under Sections 302/201/34 IPC and sentenced to undergo rigorous imprisonment for life with fine of Rs. 20,000/- each, in default of payment of fine, simple imprisonment for 3 (three) months each, for the offence under Section 302 IPC and rigorous imprisonment for 5 (five) years with fine of Rs. 5,000/- each, in default of payment of fine, simple imprisonment for 1 (one) month each, for the offence under Sections 201/34 IPC, where both the sentences to run concurrently.
3. The prosecution's case, as it emerges from the First Information Report dated 06.10.2009 (Exhibit-2) lodged by the informant Nabi Hussain (PW.2), the Secretary of Village Defence Party (VDP) of Medhi Chuburi Village, before the Officer-in-Charge of Dhekiajuli Police Station is that the said informant prior to 10/12 saw his neighbour Md. Haidar Ali involved in 'marpit' (fighting) with his brother Abdul Ali and mother Musstt. Mamuda Begum and since then, said Haidar Ali went missing. On 06.10.2009 morning the informantwith his co-villagers went to the house of Haidar Ali and enquired Mamuda Begum about him and then Mamuda Begum confessed that shealong with Abdul Ali had killed Haidar Ali and by digging a hole in the ground, buried him in the kitchen. By the said FIR, the informant requested the O.C. of Dhekiajuli Police Station to investigate the matter as well as to take necessary action against the accused persons and to do the needful.
4. On receipt of said FIR (Exhibit-2), Dhekiajuli Police Station Case No. 322/2019 under Sections 302/201/34 of the IPC corresponding to G.R. Case No. 1856/2009 was registered against the accused persons, the appellants herein.
5. During investigation, the Investigating Officer visited the place of occurrence, exhumed the dead body of Md. Haidar Ali digging from the place as shown by Mamuda Begum, drawn its sketch map (Exhibit-4),conducted the inquest on the dead body on 06.10.2009 in presence of an Executive Magistrate, Dhekiajuli and prepared the Inquest Report (Exhibit-1), forwarded the dead body of the deceased to Kanaklata Civil Hospital, Tezpur for its post mortem examination vide challan (Exhibit-5), arrested the accused persons, recorded the statements of the persons, acquainted with the facts of the case under Section 161 CrPC (Exhibits - 8 to 14), including the statements of both the accused persons,obtained the Post Mortem ExaminationReport of the deceased dated Page No.# 3/18 07.10.2009(Exhibit-3), forwarded the viscera containing right kidney, stomach and its content and piece of liver of the deceased to the FSL for its examination through the Superintendent of Police, Sonitpur, Tezpur (Exhibit-6), collected the FSL Report and on completion of the investigation, finding primafacie evidence, against the appellants/accused persons, filed the Charge Sheet in said Dhekiajuli PS case vide No. 188/2010dated 30.09.2010 (Exhibit-7) against the accusedappellants, for the offence under Sections 302/201/34 of the IPC.
6. After receipt of the aforesaid charge sheet of the case and as Section 302 IPC being a Sessions triable case, learned Chief Judicial Magistrate, Sonitpur, Tezpurby his order dated 08.06.2011 committed the said G.R. Case No. 1856 of 2009 to the Court of learned Sessions Judge, Sonitpur, Tezpur.
7. On receipt of records of said G.R. Case No. 1856/2009 with the charge sheet dated 30.09.2010, the same was registered and numbered as Sessions Case No. 136/2011 in the Court of learned Sessions Judge, Sonitpur, Tezpur, who by order dated 19.09.2011, framed the formal charge under Sections 302/201/34 of the IPC against the accusedappellants for allegedly killing Md. Haidar Ali and for causing disappearance of evidence of offence concealing the dead body of Md. Haidar Ali. The chargeswere read over & explained to the accused persons, to which they pleaded not guilty and claimed to be tried.
8. Laterby order dated 20.11.2014, the learned Sessions Judge, Sonitpur, Tezpur, made over the said Sessions Case No. 136/2011 to the Court of learned Additional Sessions Judge, Sonitpur, Tezpur for its disposal. Accordingly, the trial of the case has begun.
9. In the trial, the prosecution adduced evidence by examining 10 (ten) witnesses, including the autopsy doctor (PW.8), who conducted the post-mortem examination on the person of the deceased, the concerned Investigating Officer of the case (PW.9) and the Circle Officer concerned (PW.10), who made the inquest on the person of the deceased. But the defence did not adduce any evidence on its behalf. However, the defence cross examined the prosecution witnesses. After conclusion of recording of evidence of prosecution witnesses, the learned Trial Court recorded accused/appellants' statements under Section 313 CrPC. After conclusion of the trial, finding the guilt of the accused persons/ appellants being proved, they were convicted and sentenced as aforesaid, giving rise to this appeal.
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10. Mr. M.H. Choudhury, learned counsel for the appellants, stated that there is no eye witness to the incident and the entire case of the prosecution basis on circumstantial evidence. Mr. Choudhury submitted that the prosecution failed to establish the link of the chain to prove the guilt of the accused persons beyond reasonable doubt as all the independent prosecution witnesses from PW.1 to pw.7 were declared hostile on the behest of the prosecution and that the prosecution failed to prove its case by any independent witness. Mr. Choudhury also stated that the concerned autopsy doctor(PW.8), in his cross objection, clearly stated that the exhumed dead body was in such a state that it cannot be identified. He further stated that there are contradictions between the evidence adduced by PW.10, who conducted the inquest on the person of the deceased as well as the PW.9, Investigating Officer of the case. Mr. Choudhury submitted that when the exhumed dead body was beyond identification, the prosecution failed to ascertain as to whether the dead body so recovered was that of deceased Haidar Ali or not.
11. Mr. Choudhury, learned counsel for the appellants in support of his arguments, placed reliance upon the decisions of the Hon'ble Supreme Courtin the cases of Digamber Vaishnav and Another -Vs- State of Chhattisgarh, reported in (2019) 4 SCC 522 and State of Rajasthan
-Vs- Mahesh Kumar @ Mahesh Dhaulpuria and another, reported in (2019) 7 SCC 678.
12. On the other hand, Ms. B. Bhuyan, learned Additional Public Prosecutor, submits that though PWs. 1 to 7 were declared hostile, but part of their evidence are admissible in the case as provided in the Evidence Act. She also stated that the prosecution also from the evidence of PW.9, the Investigating Officer of the caseand PW.10,the officer who conducted the inquest of theexhumed dead body of the deceased, proved the guilt of the accused persons beyond all reasonable doubt, regarding killing of their own son and elder brother Md.Haidar Ali and in concealing his dead body.
13. PW.1, Md. Nur Islam, VDP President of Medhi Chuburi village, in his examination-in- chief, deposed that he along with PW.2 (informant) came to know that Haidar Ali had been missing for 20/22 days and that the villagers informed that Haidar Ali had been kept buried in a thatched house that is behind his house. As such, he along with PW.2 went to the Police Station, informed the authorities of Dhekiajuli Police Station about the said incident, pursuant to which on the same day in afternoon police personnel along with the Circle Officer, Page No.# 5/18 Dhekiajuli came to their village. He deposed that on coming to know that the dead body of Haidar Ali had been kept buried in the thatched house, police started digging it and from their police recovered the dead body of Haidar Ali. Said PW.1 also deposed that an Executive Magistrate (PW.10)held the inquest on the dead body of Haidar Ali and that in the inquest report (Ext.1) hehad put his signature as a witness to it and proved his signature therein [Ext.1(1)]. However, he stated that he cannot say as to who had killed Haidar Ali and kept his dead body buried. At this stage, PW.1 was declared hostile at the behest of the prosecution.
14. During his cross-examination by the defence, said PW.1 stated that as said Haidar Ali had gone missing from the village, he along with the public informed police about the same and that he along with PW.2 was present withpolice during the investigation of the case and that the dead body was kept in a ' chalighar' (house covered by flat roof) behind the house of the accused persons, where there wasan earthen ovento boil food and that said house had wall in a side and itsremaining sideswere open. He also stated that anyone can enter the said 'chalighar'. He further stated that Police recovered the dead bodyby digging a pit,engaging some persons and that the accused persons did not confess any guilt either in his presence or in presence of PW.2.
15. PW.2, Md. NabiHussian, Secretary of Medhi Chuburi VDP, in his examination-in-chief deposed that around 7/8 am on the date of the incident, he saw gathering of people in Haidar's house, wherein the villagers stated that Haidar is missing for the last 20/22 days, a villager wrote the ejahar (Ext.2) and he put his signature in it [Ext.2(1)] that was submitted before police, but he did not remember who wrote it. He also deposed that on receiving the said ejahar, police along with the Circle Officer of Dhekiajuli came to the place of occurrence and found the dead body of Haidar Ali that was kept buried in the backside of the house, where the relevant documents were prepared and that that in the inquest report (Ext.1) he had put his signature as a witness to it and proved his signature therein [Ext.1(2)]. He deposed that he is not aware as to how Haidar Ali had been killed and who kept his dead body buried and stated that there was injury in the neck of Haidar Ali. At this stage, the said PW.2 was declared as hostile at the instance of the prosecution.
16. During his cross-examination by the prosecution, said PW.2 stated that the accused Page No.# 6/18 persons and the deceased were his co-villagers, whom he knew before and that he knows how to read and write Assamese and on the date of the occurrence, many people, including Nur Islam (PW.1) and Md. Tomizuddin Ahmed (PW.5) were present at the place of the occurrence and denied thesuggestion that he does not know what had happened.
17. During his cross-examination by the defence, said PW.2 stated that the dead body was kept buried in an 'ekchali', without any walls, behind Haidar's house that was used for boiling paddy. During such cross-examination, said PW.2 went on saying that it was a field and there were banana plants in it.
18. PW.3, Md. Samsul Haque, in his evidence stated that while he was going to his place of work from his house, on the date of the incident, he saw large number of persons gathered in a place and going near to it, he saw some persons were digging the earth in a place near the river and, thereafter, he left the place of occurrence. PW.3 is a signatory to the inquest report of the deceased (Ext.1) as its witness, who proved his signature in it [Ext.1(3)]. This witness was also declared hostile at this stage.
19. During his cross-examination by the defence, PW.3 stated that the place of occurrence that was dug out, was in the back side of the house of the accused persons and near a small river and thathe left that place, before the dead body was taken out.
20. PW.4, Sri Bharat Ch. Bora, Village Head Man of said Medhi Chuburi village, deposed before the Trial Court that while he returned from his duty from a 'Lat', he saw many people gathered in the place of occurrence and police called him, then he saw that a decomposed dead body was taken out from a place having a roof without walls inside the compound of the accused. He deposed that the dead body that was takenout was of Haidar Ali. PW.4 is also a signatory to the inquest report of the deceased (Ext.1) as its witness, who proved his signature in it [Ext.1(4)]. At this stage, PW.4 was declared hostile.
21. During his cross-examination by the prosecution, PW.4 stated that the accused personsresided about ½ km away from his residence and he knew all the people of that area and on that day, PW.3, PW.5 and others were present in the place of the occurrence.
22. However, in his cross-examination by the defence, PW.4 stated that there was a drain in the back side of said ' chali' (shed) from where the dead body was recovered and that he Page No.# 7/18 cannot say whether the dead body was that of Haidar Ali or not.
23. PW.5, Tomizuddin Ahmed, in his evidence before the Trial Court, deposed that a dead body was found buried in a small house near the river and on hearing finding of a dead body, he went to the place of occurrence, where police and public were present. He also deposed that he came to know that the deceased was missing since 10/12 days back and that he was not aware as to why the deceased was missing. At this stage, he was declared as hostile.
24. During his cross-examination by the prosecution, PW.5 stated that his house is near to the house of the accused and that the immediate next house of the accused is his house and that as neighbour he knew the accused persons for more than 12 years.
25. During his cross-examination by the defence, PW.5 stated that the dead body was dug out from an 'ekchalia' house without any walls and that the dead body was in a decomposed state from which it can not be recognized as to whether the dead body was of Haidar Ali or otherwise.
26. PW.6, Md. Abdullah Khan, deposed before the Trial Court that while he was in his shop, he heard people saying that the dead body of Haidar Ali was recovered and he did not visit the place of occurrence. He too was declared as hostile.
27. During his cross-examination by the prosecution, PW.6 stated that he and the accused were neighbours and the accused persons were well-known to him, having a good communication amongst them.
28. PW.7, Jalaluddin Sheikh, deposed before the Trial Court that he knew the deceased Haidar Ali and the accused persons. He stated that the accused is his next to next door neighbour and he heard that Haidar Ali was missing. He also stated that on the next day of the incident when he came home, he heard that the dead body of Haidar Ali was recovered from the backyard of the accused persons. At this stage, said PW.7 was declared as hostile.
29. During his cross-examination by the prosecution, PW.7 stated that since a long time, the accused was his neighbour and he still resides near them. He also stated that earlier he had good relation with the accused persons but presently he does not have much good relation with them.
Page No.# 8/18 During such cross examination by prosecution, PW.7 denied the suggestion that the accused persons had not confessed before him that they had committed the murder of Haidar Ali and had kept him buried.
30. PW.8, Dr. Ranjan Kumar Mahanta,the concerned autopsy doctor, who conducted the post-mortem examination, deposed before the learned Trial Court that the deceased was identified by police personnel and one Md. Asaraf Ali and in his examination, he found that the dead body was about 25 years, which was maceratedandhe did not see any external injury in it. He stated that as the cause of death could not be ascertained, viscera of rightkidney, stomachand its contents and piece of liver were sent for FSL examination. He stated that Ext.3 is the post-mortem report of the deceased and Ext. 3(2) is the signature in it.
31. During his cross-examination by the defence, PW.8 stated that it was a decomposed dead body, excepting that dead body was male and it was not in a state for identification.
32. PW.10, Lakhi Nandan Saharia, Circle Officer of Dhekiajuli at the relevant time, who conducted the inquest on the person of the deceased on the date of the incident, deposed that on 06.10.2009, while he was posted as Circle Officer of Dhekiajuli, on getting the information from the O.C., Dhekiajuli Police Station, regarding the death of a person, he went to Medhi Chuburi village under Dhekiajuli Police Station and there in the house of Musstt. Mamuda Begum, in his presence, Dhekiajuli Police dug the floor of the kitchen and found the dead body of Haidar Ali, son of late Mohammad Ali, that was placed on polythene and that it was in a decomposed state. He also deposed that the deceased was of 25/26 years, who was identified by the informant Nabi Hussain (PW.2) and that he noticed that there was a cut mark on its neck.
33. He also deposed that after the dead body was disinterred and on thoroughly observing the dead body, he prepared the inquest report (Ext.1) in connection with said Dhekiajuli P.S. Case No. 322/2009, proved his signature in it [Ext.1(6)].
34. During his cross-examination by the defence, PW.10 denied the suggestion that though the inquest report was not written by his hand and it did not contain the signature of the person, who wrote the inquest report as per his dictation. It is not a fact that inquest Page No.# 9/18 report was prepared by him and under his instruction on the date of the occurrence, he also denied the suggestion that it was prepared elsewhere by someone else. During his cross- examination, PW.10 also stated that in the sentence, where he mentioned that the dead body was found from the kitchen, he did not mention specifically whose kitchen it belongs to. During his such cross-examination, said pw.10 also stated that people of the village gathered at the place/house, where the dead body was disinterred in presence of the local public and other witnesses gathered at the place of occurrence. He further denied the suggestion that the dead body was disinterred from an open shed behind Haidar's house and also denied the suggestion that the informant Nabi Hussain (PW.2) did not identify the dead body.
35. In a specific question made by the Trial Court to PW.10 as in whose house he visited to disinter the dead body and from which part of the house he recovered the dead body, said PW.10 answered that he visited the house of Haidar Ali, son of Lt. Mahhamad Ali and his dead body was disinterred from the kitchen of the house of Haidar Ali.
36. PW.9, the concerned Investigating Officer of the case, deposed before the Trial Judge that on receiving the ejahar from PW.2 about the fact that Md. Haidar Ali had a quarrel with accused Mamuda Begum and Abdul Ali and that said Mamuda Begum and Abdul Ali assaulted Haidar Ali and that since then, said Haidar Ali was missing and that said ejahar was registered as Dhekiajuli P.S. Case No. 322/2009 on 06.10.2009. The I.O. of the case stated that on receipt of such ejahar and registering the case, he as Investigating Officer went to the house of Mamuda Begum at Medhi Chuburi, accompanied by the Executive Magistrate, (PW.10), where the accused Mamuda Begum showed the place where the deceased was kept buried and, accordingly, they dug the floor from where the decomposed dead body of Haidar Ali was recovered. He also stated about the sketch map of the place of occurrence (Ext.4), with his signature in [Ext.4(1)], about the inquest report (Ext.1) conducted on the dead body in presence of the PW.10.
37. He also deposed that viscera of kidney, stomach and live of the deceased, preserved by the doctor was sent for FSL examination and after completion of investigation along with the post mortem report (Ext.3) and the FSL report, he submitted the charge sheet (Ext.7) in the case. Said PW.9, also deposed before the learned Trial Court regarding the statements made by the PWs 1 to 7 before him under CrPC 161 (Exts. 8 to 14) where PWs. 1, 2, 3 and 4 Page No.# 10/18 all stated about the fight between Haidar Ali the deceased and accused persons Mamuda Begum and Abdul Ali and that since the said date, Haidar Ali was found missing.
38. During his cross-examination by the defence said PW.9, Investigating Officer of the case, denied the suggestion that the accused Mamuda Begum did not show him the place where Haidar Ali was kept buried.
39. After recording of evidence of all prosecution witnesses, the learned Trial Judge on 29.09.2016 recorded the statements of the accused appellants Mamuda Begum and Abdul Ali under Section 313 CrPC. During their statements under Section 313 CrPC, the learned Trial Judge amongst other accusations led by the prosecution witnesses, placed before both the accused persons that PW.9, the Investigating Officer of the case in his evidence deposed that it is the accused Mamuda Begum who showed the place where the deceased was kept buried and to the same, both the accused persons replied that a false case was filed against them. Though the accused appellants were asked by the learned Trial Judge whether they will adduce any evidence, they refused it from their side.
40. PWs. 1, 2, 3 and 4 were the signatories to the inquest report (Exhibit-1) as witnesses to it and all of them proved their signatures in it, where as the PW.10 is the signatory to the said report (Exhibit-1) and all these five witnesses proved the inquest report.
41. The inquest report (Exhibit-1) clearly reveals that the dead body was recovered by digging up the floor of the house and that the deceased was identified by informant Nabi Hussain (PW.2) as Haider Ali, son of late Mohammad Ali, resident of Medhi Chuburi village under Dhekiajuli Police Station. Said inquest report also reflects that on examining the witnesses and from the statement made by accused Mamuda Begum, the mother of the deceased, that it is she who had killed the victim and had kept the dead body buried.
42. Exhibit.3 post mortem report of the deceased reflects that the dead body of the deceased Haidar Ali was identified. The said PM report reflected that the death of the deceased was antemortem, but it does not contain any finding or information of the Autopsy Doctor, Dr. Ranjan Kr. Mahanta, PW.8 that the dead body of said Haidar Ali was decomposed to the extent that excepting that it was a dead body of a male and that it was in a state that it cannot be identified.
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43. Exhibit.4 is the sketch map of the place of occurrence, which reflects that that the house of the accused Mamuda Begum was on the Southern side of the place of occurrence from where the dead body was recovered and that the house of the accused Abdul Ali was on itseastern side. Further, the said sketch map also reflects that the house of the PW.5 was on the southern side of the place of occurrence and in between PW.5's house, the houses of the accused Mamuda Begum is situated. The said sketch map further reflects that the house of Abdul Rashid is on the northern side of the place of occurrence and that Abdulla Khan, son of said Abdul Rashid deposed as PW.6. Moreover, said sketch map reveals that on the western side of those houses there is a river by name Godhajuli and a road in the eastern side of their houses.
44. The charge-sheet contained the FSL report dated 12.08.2010 and it indicates that poison was not found in viscera of right kidney, stomach and liver of the deceased.
45. PW.1 Md. Nur Islam, VDP Secretary of Medhi Chuburi Village identified the dead body of the deceased, exhumed from the place of occurrence as that of Haidar Ali. Similarly PW.2, Nabi Hussain, Village Defence Party Secretary of Medhi Chuburi Village also identified the dead body exhumed from the place of occurrence as that of Haidar Ali.
46. PWs. 1, 2, 3, 4 and 10 proved the Inquest Report (Ext.1) and their signatures in it, which contains that dead body of Haidar Ali was identified by informant Nabi Hussain. Said Inquest Report (Ext.1) also contains that Mamuda begum, the mother of the deceased made statement that she had killed the victim and had kept the dead body buried. As such, said evidence of PWs. 1, 2, 3, 4 and 10 being not demolished by the defence, remained intact and the identity of the dead body recovered in said Dhekiajuli P.S. Case No.322/2009 can be said to be of Haidar Ali, son of accused Mamuda Begum and elder brother of accused Abdul Ali.
47. We have also observed that the evidence of PW.9 regarding the recovery of the dead body of Haidar Ali from the specific place of occurrence at the instance of the accused Mahmuda Begum. Mr. Choudhury, learned counsel for the appellants contended that the ejahar of the case, Exhibit-2 clearly reflects that the accused Mamuda Begum in coalition with the other accused after killing Haidar kept his body buried in the kitchen and therefore, the said statement of Mamuda Begum cannot brought under the provision of Section 27 of the Page No.# 12/18 Indian Evidence Act for the purpose of leading to discovery.
48. PW.1, an independent witness though later declared hostile, in his evidence-in-chief stated that when he along with PW.2 went to the police station and informed about the incident of missing of Haidar for the last 20-22 days, police personnel along with the Circle Officer came to their village and coming to know that the dead body of Haidar Ali had been kept buried in the thatched house ( chali ghar) they (police) started digging inside the house and thereafter, dead body of Haidar Ali was recovered from there.
49. Similarly PW.2, an independent witness during his evidence-in-chief stated that the dead body of Haidar Ali was recovered from a house, kept buried therein, which was on the back yard of accused's house,. Though he was declared hostile, said PW.2 during his cross examination by the defence stated that as the accused person and the deceased are co- villagers he knew them before. During his cross examination by the defence, PW.2 stated that the dead body was kept buried in an ek chali house behind Haidar's residence that was used for boiling paddy.
50. PW.3 in his cross examination by the defence stated that the place from where the dead body was dug out was in the backside of the house of the accused persons. PW.4 in his examination-in-chief stated that the dead body was dug out from the place having a roof without walls inside the compound of the accused. PW.5 immediate neighbor of the accused also stated that the dead body was recovered from the ek chali house. PW.7 in his evidence- in-chief stated that he heard that the dead body of the deceased Haidar Ali was recovered from the backyard of the house of the accused persons. PW.10 on being asked by the Court specifically replied that he visited the house of the Haidar Ali, son of Mohammad Ali and disinterred the dead body from the kitchen of deceased Haidar Ali.
51. PW.9 the I/O of the case by exhibiting the 161 CrPC statement of PW.7, Exhibit 10 placed before the learned Trial Judge that the said PW.7 stated before police that Haidar's mother confessed that upon killing her son Haidar buried her in the backside of the house and that police came and Haidar's mother showed the place where the dead body was kept buried. Moreover, statement made in the inquest report Ext-1 by the PW.10 Executive Magistrate of Dhekiajuli and proved by PWs. 1, 2, 3 and 4 goes to show that from the Page No.# 13/18 statement made by the accused Mamuda Begum mother of the deceased that it is she who had killed the victim and had kept the dead body buried in the place of occurrence. PW.1 in his examination-in-chief clearly stated that ' on coming to know that the dead body of Haidar had been kept buried in the backyard, police started digging inside the said house'. All those evidences could not be shaken by the defence and it remain intact and thereby proved the statement of the PW.9, I/O of the case that the dead body of the deceased Haidar Ali was recovered at the instance of the accused Mamuda Begum.
52. As discussed above from the evidence of PWs. 1, 2, 3, 4, 5 and 7 that the dead body of the deceased was exhumed after digging up the floor of ek chali house behind the house of the accused and from the Exhibit-4 sketch map of the place of occurrence, it is clear that the dead body of the deceased was recovered from the house towards the northern side of the house of the accused that was situated in the same compound of the accused persons.
53. In the present case, it is clear that when PW.1 and PW.2 VDP President and Secretary, respectively, of Medhi Chuburi village went to Dhekiajuli Police Station and informed about the incident of missing of Haidar Ali, police personnel along with the Circle Officer of Dhekiajuli came to the place of occurrence and it is the accused Mamuda Begum who showed the place where the deceased was kept buried and as such accused Mamuda Begum directly or indirectly was put under police surveillance and her movement was restricted by the police in the place of occurrence. Therefore, the evidence of PW.9 that the accused Mamuda Begum showed the place of occurrence, where the deceased was buried, can be said that she made her statement during her custody in police validly under Section 27 of the Evidence Act.
54. From the above, it is seen that the dead body of the victim Haidar Ali was not buried in the kitchen as stated in the FIR (Ext.2) but in a particular place as shown by the accused Mamuda Begum. Therefore, we found that the evidence of the PW.9 regarding the recovery of the dead body of Haidar Ali from the specific place of occurrence at the instance of the accused Mamuda Begum remained unshaken by the defence. Moreover, both the accused persons did not answer to this quarry in their 313 CrPC statement when they were specifically asked about it.
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55. We have also noticed the specific statement of the PW.7 Md. Jalaluddin Seikh, who is the next door neighbor of the accused persons, specifically denied the suggestion of the prosecution that the accused persons had not confessed before him that they had committed the murder of Haidar Ali and had kept him buried.
56. Mr. Choudhury, learned counsel for the appellants at this stage submitted that during his cross examination by the defence, said PW.7 stated that the accused did not confess before him about the incident and that no dead body was recovered in his presence and that he only heard about the incident from public.
57. PW.7 who was declared hostile and during his cross examination by the prosecution in the suggestion made by it clearly stated that - " it is not a fact that I have stated that the accused persons had not confessed before him that they had committed the murder of Haidar Ali and had kept him buried".
58. In his cross examination by the prosecution, PW.7 clearly stated he knew the accused persons since long time who are his neighbors and he still resides with the accused persons but at present he does not have much good relation with them. The matter relates to 06.10.2009 and the evidence of PW.7 was recorded by the learned Trial Court on 10.09.2013.
59. PW.9 the I/O of the case by exhibiting Exhibit-10, the 161 CrPC statement of the said PW.7 placed before the learned Trial Judge that the said PW.7 stated before police that Haidar's mother confessed that upon killing her son Haidar buried her in the backside of the house and that police came and Haidar's mother showed the place where the dead body was kept buried. Moreover, statement made in the inquest report Ext. 1 by the PW.10 Executive Magistrate of Dhekiajuli proved by PWs. 1, 2, 3 and 4 goes to show that from the statement made by the accused Mamuda Begum mother of the deceased that it is she who had killed the victim and had kept buried the dead body.
60. Relying on the decisions of Digambar Vaishnav (supra) and Mahesh Kumar (supra), Mr. Choudhury, learned counsel for the appellants placed before the Court that the prosecution failed to complete the chain of circumstances to prove the guilt of the accused on the basis of which any confession made cannot attributed to the accused appellants as there is not eye witness to the incident.
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61. He also submitted that as because the one accused is the mother and the other accused is the younger brother of the deceased and they did not complain regarding missing said Haidar Ali on the ground of suspicion, the appellants cannot be convicted. Mr. Choudhury, learned counsel for the appellants also stated that even though assuming the incident as well as the evidence is unshaken one, on the basis of gravity of the offence cannot by itself in the case in hand, the accused appellants cannot be convicted and punished in the absence of any such legal proof.
62. He further stated that it is settled that any case pertaining to circumstantial evidence there is always danger that the conjecture or suspicion may take the legal proof.
63. On the basis of that Mr. Choudhury for the accused appellants submitted that the impugned judgment and order of conviction and sentence should be set aside and quashed.
64. Though PW.2 during his cross examination stated that he did not write the ejahar of the case (Ext.2) and also does not know who wrote it and put his signature as asked by the public, but while he was cross examined by the prosecution, he clearly stated that at the relevant time he was the Secretary of the VDP of Medhi Chuburi village and he knows how to read and write Assamese.
65. During his evidence-in-chief, PW.2 proved the said ejahar(Ext.2)that was written in Assamese in original and also his signature Ext.2(1) in it, whereinit was clearly stated that in the morning of 06.10.2009 when he along with the locals went to the house of the deceased Haidar, on being asked Mamuda Begum confessed that in union with Abdul Ali, she had killed Haidar Ali and kept the dead body buried in the kitchen.
66. From all these evidences led by prosecution, we are of the view that the circumstances from which inference of guilt is said to be drawn against the accused persons, appellants herein have been proved by the prosecution and the prosecution could prove the circumstances unerringly pointing towards the guilt of the accused persons in killing of her own son and his own brother Haidar Ali and buried his dead body in the backside of the house of the accused Mamuda Begum. The evidence so led by the prosecution also form a chain completing it and there is no break in the said chain that connected all the circumstances about the conclusion that it is none other than the accused persons, appellants Page No.# 16/18 herein Mamuda Begum and Abdul Ali, who had killed Haidar Ali.
67. We have seen that the deceased Haidar Ali was the son of the accused appellant Mamuda Begum and the elder brother the accused Abdul Ali. We have also seen that the PW.2 was the VDP Secretary of said Medhi Chuburi village at the relevant time who lodged the ejahar (Exhibit-2) putting his signatures therein Exit. 2(1), who can read and write Assamese, proved the contents of said ejahar, written in Assamese, wherein he stated that he saw his neighbours Mamuda and Abdul having a fight with their own son/brother Haidar Ali and he was killed 10-12 days prior to the lodging of the ejahar which means the day of occurrence of the incident. It is also in evidence that when the dead body of the deceased was exhumed it was in a decomposed state. It also indicates of the killing of Haidar Ali 10-12 days prior to the incident when PW.2 saw the incident of fight between the accused appellants and the deceased.
68. PW.10 in his inquest report (Ext.1) stated that he noticed cut mark on the neck of the deceased and PW.10 in his examination in chief proved the same. PW.2, informant of the case in his examination-in-chief also deposed about cut mark in neck of the victim. Said inquest report (Ext.1) was proved by PWs. 1,2, 3, 4 and 10. These evidence could not be demolished by the defence and remained intact.
69. From the above, we can draw a conclusion that during the said fight between Abdul Ali, Mamuda Begum and the deceased Haidar Ali, in a hit of passion, which is extremely uncontrollable at that moment, assaulted the deceased and he was cut in his neck. However, the evidence adduced by the prosecution did not prove any motive regarding killing of Haidar Ali by his own mother and younger brother, the accused appellants in the present case. Such killing by the mother and the younger brother might have been beyond their control in a hit of passion in the said fight between three of them.
70. For the same we are of the view that the commission of offence of murder by the accused appellants comes under the purview of exception 4 of Section 300 of the IPC and punishment would be under Part-I of Section 304 IPC for culpable homicide not amounting to murder.
71. Accordingly, we modify the impugned conviction and sentence dated 18.02.2017, Page No.# 17/18 passed by learned Additional Sessions Judge, Sonitpur, Tezpur, in Sessions Case No. 136/2011, corresponding to G.R. Case No. 1856/2009 and we sentence the accused persons, appellants herein, namely, Musstt. Mamuda Begum and Abdul Ali under Section 304 Part-I that both of them shall undergo rigorous imprisonment for a period of 9 (nine) years with fine of Rs. 10,000/- each, in default of payment of fine, simple imprisonment for 3 (three) months each, for the offence under exception 4 of Section 300 of the IPC. However, the punishment dated 18.02.2017, imposed by learned Additional Sessions Judge, Sonitpur, Tezpur in Sessions Case No. 136/2011 upon the appellants herein, named above, regarding the offence under Sections 201/34 IPC for rigorous imprisonment of 5 (five) years with fine of Rs. 5,000/- each, in default of payment of fine, simple imprisonment for 1 (one) month each shall remain intact and both the sentences shall run concurrently, setting off the period in custody already under gone by those accused persons during investigation, trial and after the impugned judgment and conviction.
72. Pursuant to the order dated 26.04.2017 passed earlier in I.A. (Crl) 280/2017 in the present appeal, both the accused appellants are on bail and in view of the judgment passed by us today, the bail stands cancelled.
73. The accused appellants named above shall surrender before the learned Additional Sessions Judge, Sonitpur, Tezpur in Sessions Case No. 136/2011 on or before 21.10.2019 to serve out the sentence.
74. As this judgment and order has been passed in presence of the learned counsels for the appellants, the accused persons are directed to comply with the direction passed herein, forthwith.
75. Return the LCR to the Court of learned Additional Sessions Judge, Sonitpur, Tezpur, along with a copy of this judgment.
76. This appeal is partly allowed, to the extent above.
JUDGE JUDGE
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Comparing Assistant