Meghalaya High Court
Shri Fozlur Basit vs State Of Meghalaya on 14 September, 2017
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
1
Crl.A. No.4/2013 and connected cases
IN THE HIGH COURT OF MEGHALAYA AT
SHILLONG
: ORDER :
Crl. A No.4 of 2013 Shri Fozlur Basit ..... Accused/Appellant
-Versus-
State of Meghalaya ..... Respondent
Crl. A No.5 of 2013
Shri Allauddin SK ..... Accused/Appellant
-Versus-
State of Meghalaya ..... Respondent
Crl. A No.6 of 2013
Shri Soiful SK ..... Accused/Appellant
-Versus-
State of Meghalaya ..... Respondent
Crl. A No.7 of 2013
Shri Surat Zaman ..... Accused/Appellant
-Versus-
State of Meghalaya ..... Respondent
Crl. A No.8 of 2013
Shri Azibor Rahman ..... Accused/Appellant
-Versus-
State of Meghalaya ..... Respondent
Crl. A No.9 of 2013
Shri Zakir Hussain ..... Accused/Appellant
-Versus-
State of Meghalaya ..... Respondent
Date of Order :: 14.09.2017
PRESENT
HON'BLE SHRI JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE HON'BLE SHRI JUSTICE VED PRAKASH VAISH Shri R Kar, for the accused/appellant Shri S Sen Sen Gupta, PP BY THE COURT: (per Hon'ble the Chief Justice) (ORAL) Preliminary:
These appeals under Rule 22 of the Rules for Administration of Justice and Police in Garo Hills District read with Section 374 of the Code of Criminal Procedure, 1973 ['CrPC'] are directed against the common judgment and orders dated 26.08.2013 and 27.09.2013 as passed in Sessions Case No.6 of 2007 whereby, the learned Adhoc Judge, Fast 2 Crl.A. No.4/2013 and connected cases Track Court, Tura has convicted the accused/appellant Fozlur Basit [Criminal Appeal No.4 of 2013] for offence under Section 302/34 IPC and has sentenced him to life imprisonment; and further, has convicted the other appellants for offence under Section 304 (Part I)/34 IPC and has sentenced the appellants Allaudin Sk, Soiful Sk, and Azibor Rahman [Criminal Appeal Nos. 5, 6 and 8 of 2013] to rigorous imprisonment for three years and the appellants Surat Zaman and Zakir Hussain [Criminal Appeal Nos.7 and 9 of 2013] to rigorous imprisonment for five years; and has also imposed fine of Rs.5000/- each on these five appellants with default simple imprisonment for six months.
These appeals arising out of the common judgment and orders dated 26.08.2013 and 27.09.2013 have been considered together and are taken up for disposal by this common judgment.
It may be observed at the outset that after having heard the learned counsel for the appellants and learned PP and having examined the record, we have found such fundamental flaws in the procedure as adopted and the decision as rendered by the learned Trial Court that the only appropriate course is to set aside the impugned judgment and orders and to send the matter for re-trial by a competent Court. In this view of the matter, only a brief reference to the background facts would suffice.
The First Information Report ['FIR'] leading to the trial and conviction of the appellants was registered on 20.04.2005 at Police Station Phulbari (West Garo Hills), being FIR No.18 (4) 2005, for offence under Section 302/34 IPC on the basis of a written complaint made by Md. Azibur Hussain, S/o Lt. Udaya Sheikh of village Maulakandi Police Station Phulbari to the effect that on 20.04.2005, at about 8:30 am, his elder brother Md. Hazibur Rahman's daughter Fatima Bibi, aged about 16/17 years, was allegedly beaten up by the accused/appellants and she 3 Crl.A. No.4/2013 and connected cases died because of such assault. It was also alleged that the victim Fatima Bibi had left her husband of two years on the promise of marriage by Fozlur Basit but gradually, he changed his mind and sensing that she would lose him, Fatima Bibi went to the house of the accused Fozlur where she was assaulted and succumbed to the injuries. All the accused persons are admittedly related closely with each other.
During the course of investigation, initially the accused/appellant Fozlur Basit was arrested on 21.04.2005, who was enlarged on bail on 03.06.2005 and thereafter, the other accused persons surrendered before the Court and were released on bail. After the investigation, charge-sheet was filed on 24.04.2007 and the accused were ultimately charged under Section 302/34 IPC on 18.10.2010, who denied the charge and claimed trial.
In the trial, the prosecution examined as many as 11 witnesses. PW1 Azibur Hussain had been the informant and uncle of the victim Fatima Bibi who, inter alia, stated that on 20.04.2005, he went to the house of Suraj Jamal upon hearing hue and cry and saw the dead body of Fatima Bibi lying on the ground with several people including the accused/person standing at the site. This witness further stated as under:-
"The victim Fatima Bibi was married to Fazal Sheikh Son of Meber Ali for about 2 years. They had no children the husband was from the same village. The accd Faylee Basi made Fatima Bibi divorced her husband with the assurance to marry her. I do not know why and how she was there. The accd Faylee Basi is the brother of Surat Jamal in whose house I saw the dead body. I saw the dead body lying face upwards but did not see any injury.
From the P.O I went to the house of my brother Habibur Hussain but he was not at home, only his wife. I did not ask my sister in-law as to how the victim girl was at the house of the accd. My other brothers told me to file the FIR. I gave my thumb impression in the FIR."
In his cross examination, the said witness stated as under:-
"I did not see who actually killed Fatima Bibi. The incident took place before I reached the P.O there were about 20-25 people at the spot 4 Crl.A. No.4/2013 and connected cases when I reached there. I don't know how to read and write the ejahar was written by the Retd. Bara Babu of the P.S, the prepared FIR was given to me and I was asked to put my thump impression as the guardian. I named the accused persons in the FIR based on the information given by others."
PW2 Sulaiman Haque was the VDP Secretary, village Maulakandi and allegedly reached the place of occurrence at 1:00 pm on the fateful day. He alleged having seen the dead body and a bucket containing turmeric seeds nearby but further alleged having not seen any injury marks on the dead body. This witness alleged that upon his asking, the people alleged that the victim died after consuming poison.
PW3 M. Bibi was the mother of the victim Fatima Bibi, who specifically supported the prosecution case and deposed as under:-
"Fatima Bibi was my daughter she was 14 years old when she died about 5 years back. My daughter was married to Fozlur but she was not staying with her husband because accd told not to be with him. There was an agreement between the accd and my daughter, the accd promised to marry her, but the brother of accd did not allow him to marry her. Our house was not far from the house of the accd. I am an eye witness to the assault of my daughter. Zakir Hussain, Allauddin, Faylee, Soibur, Azibur they all assaulted my daughter. All the above named persons are related. They beat her with fist and bare hands when I went to help her they assaulted me. I tried to save my daughter but the accd persons prevented me and they dragged my daughter, the victim to an empty house belonging to the accused where she died. That time he was not at present, he went to market to sell fish.
xxxx Azibur was not present at the P.O. He was one of the main conspirators. One Bola Sheikh had also seen the assault, he was the one who went and told the other villagers.
When I saw my daughter she had cut and injuries on her face and there was swelling and bleeding at the back of her head."
Though PW3 alleged that Bhola Sheikh had seen the assault but the said Bhola Sheikh, while deposing as PW4, stated that at the time of incident, he was in the paddy field; and denied having ever given any statement of being an eye-witness to the assault. This witness also referred to his statement before the Magistrate which has been marked as Exhibit 2 (though the forwarding report under Section 317 CrPC has also been marked as Exhibit 2).
5
Crl.A. No.4/2013 and connected cases PW5 Muslim Sheikh alleged, inter alia, that he was in his shop at the time of incident and that two persons namely Zakir Hussain and Surat Jamal alleged that one women had consumed poison and was about to die and when he went to the place of occurrence, the victim was already dead by then and Bhola Sheikh was shaking out of fear. The witness stated in his cross examination as under:-
"I was not an eye witness to the actual incident. It is not a fact that I met Allauddin on the way. The mother of deceased was at her own house and the father was in the market. I did notice any injury marks as she was a woman I did not feel good to observe close. She was lying on her bed with her head titled to one side."
PW6 Safiuddin alleged that on the day of incident, at about 9:00 am, while returning for lunch, he heard about Fatima Bibi having consumed poison and he allegedly suggested cow-dung treatment to Fatima Bibi but by that time, it was too late. PW7 Mujibur Sheikh alleged having seen the victim girl standing in the house of the accused when the mother and sister of the accused asked her to go back but she did not leave and after 10 to 15 minutes, he heard halla and came running to the place of occurrence when he saw the victim girl unconscious and people trying to feed her cow-dung and tamarind; and the smell of medicine was there. The witness suggested that the cause of death of the victim could have been due to consumption of medicine. PW8 Toile Ali alleged that Bhola Sheikh came to his shop and informed about the demise of Aibur's daughter and then, Bhola Sheikh having ran away with Suraj and Zakir; and he went to the house of the accused and saw the dead body of Fatima Bibi. In the cross examination, this witness Toile Ali stated that he was not knowing the reason as to why Bhola ran away.
PW9 Dr.S.W. Momin, had been the doctor who conducted the post mortem report. His entire testimony reads as under:-
"I, Dr. S.W. Momin received the dead body of Fatima Begum along with the inquest report for autopsy on 21.04.2005 at 11:30 am. PM 6 Crl.A. No.4/2013 and connected cases was done on the same day at 3 pm. Autopsy was finished at 4 pm. The deceased Fatima Begum was d/o Habibur Rahman of village Maulakandi, P.S Phulbari, the deceased was about 17 years.
External injuries of the deceased were:
1. Face congested, injuries, swelling of upper lips, lacerations in the inner part both upper and lower lips.
2. Bruise on the cheek right side 1/4" by 1/4" and below the chin 1/2"X1/4"
3. Bruise on the right cheek-below right eye 1/2" X 1/2"
4. Swelling on the right temporal region 1" X 1/2"
5. Swelling on the left temporal region 1 1/2" X 1/2"
6. Bruise on the left cheek 1/4" X 1/4"
Internally there were pedechial hemorrhages on the external surface of the lungs.
7. Plural cavities contained fluids. Probable time since death at the time of PM was 28-36 hrs. The cause of death in my opinion,
(a) Immediate cause asphyxia due to forceful obstruction of the external respiratory passage. Manner of causation of injuries were homicidal in nature. The injuries received by the deceased were all ante mortem in nature and sufficient to cause death.
xxxx Exb-7 is my P/M report and my signature is Exb- 7(i). I did not mentioned the object used by which injuries were caused. The external injuries mentioned in the P/M report are simple in nature. In the process of obstruction of respiratory passage, the injuries mentioned in the P/M report were caused. These injuries alone cannot cause death. It is not necessary that there should be mark on the neck to cause obstruction of respiratory passage.
The injuries shown in the P/M report are correct. No fluid was collected from the stomach of the deceased."
PW10 Inspector R.A. Sangma and PW11 S.I. S.R. Marak, had been the police officers who carried out the investigation in the matter.
It appears that after the prosecution evidence, the learned Adhoc Judge, Fast Track Court purportedly examined the accused persons under Section 313 CrPC but instead of putting the circumstances occurring against them, posed certain cursory questions to the accused. For a ready reference, the examination of the accused Fozlur Basit on 16.10.2012 could be taken note of as under:-
"Q. Do you know the victim deceased Fatima Bibi? A. Yes I do.
Q. How did she died?
A. I do not know how she died.
Q. What was your relation to the deceased?
A. I have no relation.
Q. Where you present at the P.O. when incident occurred? A. I was not there.
Q. Do you know Azibur Rahman?7
Crl.A. No.4/2013 and connected cases A. Yes he is from our village.
Q. How did Fatima Bibi died.
A. I can't say.
Q. Anything you want to tell this Court?
A. I have nothing to say."
The examination of the other accused persons had also been on similar nature questions i.e., as to whether they knew Fatima Bibi and as to how did she die and as to whether they were present at the time of occurrence. The accused prayed for producing Defence witness and on 19.03.2013, two Defence witnesses, DW1 Suraj Jamal and DW2 Mofial Haque were examined. DW1 Suraj Jamal stated as under:-
"The accd. person are from my same village. I cannot remember the exact date, month & year of the incident, wherein Fatima Bili died. After hearing the incident I went to the spot where Fatima Bibi was still alive. At that time there was huge gathering of villagers and somebody was feeding tamarind juice for vomiting. I came to know from the villagers that Fatima Bibi took poison as a result of which she died. I did not notice any injury mark on her body. She died in the residence of Faylee Bashir'. Fatima Bibi came to the residence of Faylee Bashir at about 8:30 am from her parents house. I have nothing further to say.
I did not know why Fatima Bibi went to Faylee Bashir's house. She was married but I do not know her husbands' name. In fact Fatima Bili was my grand daughter it is not a fact that accd. person had beaten Fatima to death as alleged by Ailor Hussain. Fatima ate poison in the house of Ailor. I did not see any injury on her face. It is not a fact that she died of assault in the house of Faylee Bashir."
The other defence witness, DW2 Mofial Haque, stated as under:-
"The incident took place around 7-8 years ago. My residence is adjacent to the house of Aibor Sheikh, father of Fatima Bibi. When I reached the spot that time Fatima Bibi was still alive. There were a huge gathering of people and somebody was feeding cowdung and tamarind for vomiting. I also got the smell of some medicine and also heard that the victim consumed poison as a result of which she died. I did not notice, any injury marks on her body, I did not know where she consumed the poison.
Fatima was from our village. I did not know why she consumed poison I did not see what poison she took. When I reached she was still alive. On enquiry I was told that she came to Faylee's house and ate poison. As I am mistri I did not know her past history. I did not see any injury marks on her face. It is not a fact that I came at the request of the accd. to help them."
After the aforesaid proceedings, the learned Adhoc Judge heard the matter and finally decided the same by the impugned judgment dated 8 Crl.A. No.4/2013 and connected cases 26.08.2013. The learned Adhoc Judge, after taking note of the submissions of the parties rejected the defence theory of suicide by the victim by consumption of poison as being farfetched and unbelievable and being contradicted by the postmortem report as also the statements of some of the witnesses. The learned Adhoc Judge also observed that if the victim had died after consuming poison, the police would have registered it as a case of unnatural death and would have investigated accordingly. After such rejection of the defence theory, learned Adhoc Judge, without requisite discussion and appreciation of the prosecution evidence, expressed his agreement with Public Prosecutor on the questionable conduct of the accused persons and then, suddenly stated the conclusion of guilt against the appellants; and thereafter, convicted the appellant Fozlur Basit under Section 302/34 IPC and other accused persons under Section 304 (Part-I)/34 IPC. The considerations and reasonings in the impugned judgment dated 26.08.2013 read as under:-
"13. I have heard all the arguments, perused the written arguments as well as the court records. The allegation of suicide of the victim Fatima Bibi is far fetched and unbelievable as the post mortem report contradicts the statements of some of the PWs as well as DWs. The I/O has not heard anyone talking of suicide and his statements have not been effectively contradicted in court. In the event of the victim dying from consuming poison, the Police would have registered it as Unnatural Death and investigated accordingly. Hence, the allegation of suicide is an after-thought floated by some interested parties to cover up the crime of murder. I tend to agree with the Ld. PP that the conduct of the accused after commission of crime is a material fact under Section 8 of the Evidence Act. Apart from PW-3, who claims to be an eye-witness, being the mother of the victim, very few of the witnesses came to the assistance of the prosecution. I have also seen the application of the father of the victim alleging harassment and threats carried out by the accused and their friends. The court also issued show-cause notices to all the accused, and finally warned them against such illegal activities. This also explains the reason why the prosecution could not get enough support in its favour.
14. All the evidence and circumstances of this case lead me to the irrefutable conclusion that one of the six accused Fazlur Basit S/o Lt.Bisher Ali Sk. is guilty of the murder of Fatema Bibi D/o Md. Habibor Rahman. Accordingly, I convict Fazlur Basit under Section 302/34 IPC. As for the other accused, namely 1. Surat Zaman, S/o Lt. Bisheer Ali Sk 2. Saiful Sk. S/o Lt. Foruzul Sk. 3. Alauddin Sk. S/o Lt. Kakimuddin Sk. 4. Azibor Rahman S/o Lt. Hazi Afser Ali and 5. Zakir Hussain S/o Lt. Bisher Ali Sk are all related to the main accused 9 Crl.A. No.4/2013 and connected cases Fazlur Basit either as brothers or close relatives. They have aided in the assault of the victim and hence I convict all of them under Section 304 (Part I)/34 IPC."
Thereafter, the learned Adhoc Judge awarded varying sentences to the accused persons by the order dated 27.09.2013 as under:-
"I have given a careful thought to the entire matter. Since the accused Fazlur Basit has been convicted u/s 302 IPC he has to be given the punishment of imprisonment for life as I have no option in it. However with regard to the remaining accused I award RI for three years for Saiful SK, Allaudin Sk and Azibor Sk. So far Zakir Hussain and Surut Zaman are concerned they are awarded RI for five years. Over and above this all the five accused will conjointly pay a sum of Rs.25,000/- i.e. Rs.5000/- each and above the RI. This amount when realized will be given to the family of the victim. In case the accused default in the payment of fine they will undergo SI for 6 (six) months."
Aggrieved by the judgment and order aforesaid, the accused have preferred these separate appeals. On 30.06.2015, these appeals were heard by the Co-ordinate Bench of this Court; and after noticing want of proper examination of the accused under Section 313 CrPC, the Court directed the Sessions Judge, Tura to record the statement of the accused under Section 313 CrPC and to submit the same to the Court. The order dated 30.06.2015 reads as under:-
"30.06.2015 Mr. R. Kar, learned counsel, assisted by Ms. S.G. Momin, learned counsel, appears for the appellants.
Mr. K. Khan, learned Addl. senior GA, represents the respondents. During the course of hearing, it is pointed out that the trial Court has not recorded the statement of accused properly during the course of court examination under Section 313 CrPC. Even learned counsel for the State also admits that in the absence of proper recording of statement under Section 313 CrPC, it would be difficult for the State to defend the judgment. In view of the matter, we direct the learned Sessions Judge, Tura, to carefully record the statement of accused under Section 313 CrPC and submit the same to this Court in a sealed cover. Let the records of this case in sealed cover be sent to learned Sessions Judge, Tura for doing the needful.
List the matter along with the statement on 28.07.2015."
In compliance of the order aforesaid, the learned Sessions Judge examined the accused-appellants under Section 313 CrPC and returned the record to this Court. Each of the accused persons gave out his own version and assertion but denied the allegations of prosecution. 10
Crl.A. No.4/2013 and connected cases The copies of such statements have been supplied to the learned counsel for the appellant and Public Prosecutor.
Though learned counsel for the appellant and Public Prosecutor have made elaborate submissions on merits of the case but we do not propose to dilate on the same for the reason that the proceedings in this case are difficult to be endorsed and in our view, the prejudice caused to the parties could only be remedied by extending them proper opportunity, after restoring the matter for re-trial.
As noticed, the examination of the accused under Section 313 CrPC during the trial on 16.10.2012 had been cryptic and cursory where the implicating circumstances were not even put to the accused. Thereafter, the judgment of conviction as delivered by the learned Trial Court had only been rather assumptive in nature where nothing of cogent finding was recorded after due appreciation and analysis of the evidence. It appears that the learned Adhoc Judge found the conduct of the accused persons being not fair where they were allegedly harassing the witnesses but after noticing such conduct of the accused and after rejecting the defence theory, the learned Adhoc Judge only stated this much that apart from PW3, a very few witnesses came to support the prosecution. Thereafter, the learned Adhoc Judge straightaway stated the conclusion on the guilt of the accused. It is difficult to endorse the conclusion of the learned Adhoc Judge, for being not supported by the necessary and adequate reasons.
Even in the conclusion, the learned Adhoc Judge convicted the accused Fozlur Basit for offence under Section 302/34 IPC but then, convicted the other accused persons for offence under Section 304 (Part- I)/34 IPC and then, awarded varying sentences. Such different convictions and sentencing are also difficult to be endorsed. In the 11 Crl.A. No.4/2013 and connected cases present matter, the omission on the part of the Trial Court in proper compliance of Section 313 CrPC was, of course, noticed by the Co- ordinate Bench in the aforesaid order dated 30.06.2015 and the Sessions Judge, Tura was directed to examine the accused under Section 313 CrPC afresh but then, after such examination, the accused persons have not been afforded an opportunity of leading defence evidence, if they so desire.
In the overall analysis of several shortcomings and lacunas in the procedure as also for want of cogent findings with proper appreciation of evidence, we find it rather imperative to remit the matter for re-trial from the stage after examination of the accused under Section 313 CrPC. The statement recorded pursuant to the order of the Court shall be taken sufficient for the purpose of Section 313 CrPC but the accused persons shall be permitted to adduce further defence witnesses, if they so desire.
Having regard to the circumstances of the case, it is also considered appropriate to keep the option of exercising the powers under Section 311 CrPC open for the learned Trial Court.
The Fast Track Court having already been abolished, the matter deserves to be sent for re-trial to the regular Sessions Court available in West Garo Hills, Tura.
Accordingly and in view of the above, these appeals are allowed to the extent and in the manner that:
(A) The impugned judgment and orders dated 26.08.2013 and
27.09.2013 as passed by the Fast Track Court, Tura in Sessions Case No.6 of 2007 are set aside and the matter stands restored for re-trial from the stage after examination of the accused under Section 313 CrPC. 12
Crl.A. No.4/2013 and connected cases (B) The restored sessions case shall now be instituted in the Court of Sessions Judge, West Garo Hills, Tura and shall be taken up on 03.10.2017.
(C)(i) The appellants of Criminal Appeal No.5 of 2013-Shri Allauddin SK, Criminal Appeal No.6 of 2013-Shri Soiful SK, Criminal Appeal No.7 of 2013-Shri Surat Zaman, Criminal Appeal No.8 of 2013- Shri Azibor Rahman and Criminal Appeal No.9 of 2013-Shri Zakir Hussain are already on bail. They shall appear before the Sessions Judge, Tura on the date fixed i.e., 03.10.2017 and shall submit fresh bail bonds and sureties for their regular appearance in that Court as per the terms and conditions to be laid down by the learned Sessions Judge.
(C)(ii) The appellant of Criminal Appeal No.4 of 2013-Shri Fozlur Basit is in jail for having been taken into custody pursuant to the impugned judgment and order dated 26.08.2013. His bail application remained pending but was not granted by this Court. In the circumstances of the case, instead of ordering his release at present, we leave it open for him to apply for bail afresh before the learned Sessions Judge which, if moved, may be examined on its own merits by the learned Sessions Judge. The appellant of Criminal Appeal No.4 of 2013- Shri Fozlur Basit shall be produced before the learned Sessions Judge, Tura on the date fixed i.e., 03.10.2017.
(D) It shall be expected of the learned Sessions Judge to take up the matter from the stage of examination of the accused under Section 313 CrPC and to afford them an opportunity of leading defence evidence.
(E) Having regard to the circumstances of the case, it is made clear that option of exercising the powers under Section 311 CrPC shall also remain open for the learned Sessions Judge and such powers may be exercised as and if considered necessary.
13
Crl.A. No.4/2013 and connected cases (F) It would be expected of the learned Sessions Judge to assign top priority to this matter and to make an endeavour to complete the entire trial and to dispose of the matter at the earliest, preferably before 20.12.2017.
The record be sent to the Sessions Judge, West Garo Hills, Tura along with a copy of this order.
In the interest of justice, it is made clear that we have not pronounced on the merits of the case either way.
JUDGE CHIEF JUSTICE Lam Item SL No.2