Gauhati High Court
Md Abdul Motleb vs The State Of Assam on 21 November, 2015
Equivalent citations: 2016 CRI. L. J. 1701, (2016) 157 ALLINDCAS 902 (GAU) (2016) 1 GAU LR 100, (2016) 1 GAU LR 100
Bench: P. K. Saikia, M. R. Pathak
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IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM:NAGALAND:MIZORAM & ARUNACHAL PRADESH)
PRINCIPAL SEAT AT GUWAHATI
CRIMINAL APPEAL No. 16 (J) of 2012
Md. Abdul Motleb,
Son of Late Fazar Ali,
Resident of phukandoloni,
Police Station - Laluk,
District - Lakhimpur, Assam.
.......... Appellant/Accused.
- VERSUS -
State of Assam
.......... Respondent.
Advocates for the Appellant :- Ms. Bijita Sharma,
Amicus Curiae,
Advocate for the Respondent :- Mr. K. A. Mazumder,
Additional Public Prosecutor,
Assam.
BEFORE
HON'BLE MR. JUSTICE P. K. SAIKIA
HON'BLE MR. JUSTICE M. R. PATHAK
Date of Hearing : 19.05.2015
Date of Judgment & Order : 21.11.2015
Crl. Apl. No. 16 (J) of 2012 Page 1 of 13
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JUDGMENT & ORDER (CAV)
This Criminal Appeal from jail is preferred by the accused appellant Md. Abdul Motleb, being aggrieved with the judgment and order dated 19.12.2011 passed by the learned Sessions Judge, Lakhimpur, North Lakhimpur in Sessions Case No. 38 (NL) of 2009, corresponding to G.R. Case No. 552/2004, arising out of Laluk Police Station (District-Lakhimpur) Case No. 65 of 2004 by which the appellant/accused has been convicted under Sections 302/201 of the Indian Penal Code and sentenced him to undergo Imprisonment for life and also to pay fine of Rs. 2,000/- under Section 302 IPC, in default to undergo Rigorous Imprisonment for further period of 2 (two) months and also sentenced him for Rigorous Imprisonment for a period of 3 (Three) years with a fine of Rs. 500/- under Section 201 IPC, in default to undergo Rigorous Imprisonment for another period of 15 days, with the observation that both the sentences are to run concurrently.
(2) The prosecution case, as it emerges from the First Information Report dated 01.06.2004 (Exhibit-2) lodged by one Md. Abdul Mannan (PW.3) before Dolhat Out Post is that one Md. Abdul Kasem of Fukandalani Village around 06:00 am on the said date informed him that his elder bother Md. Abdul Motleb killed his wife (Mozida Begum) around 11:00 pm on the previous night by strangulating her by the neck with his own hand, dragged her to the side of Pavo river and tied the strands of her hair with grass- creeper etc. and said accused have confessed of committing the said incident before people of the village and the village headman (the informant).
(3) The said FIR was registered as GD Entry No. 462 dated 01.06.2004 at Dolhat Out Post and was forwarded to the Officer-in-Charge of Laluk Police Station on the same day, which was registered as Laluk Police Station Case No. 65 of 2004 under Section 302 of the Indian Penal Code and the Officer-in-Charge of said Dolhat Out Post took up the investigation of the case.
Crl. Apl. No. 16 (J) of 2012 Page 2 of 13 -3-(4) During investigation, the Investigating Officer visited the place of occurrence, drawn its sketch map (Exhibit-5), conducted the inquest on the dead body and prepared the Inquest Report (Exhibit-1), seized the apparels of both the deceased & the accused, which were found to be wet and one tobacco container from the house of the accused Motleb through Seizure Memo (Exhibit-3), sent the dead body of the deceased for post-mortem examination, arrested the accused, recorded the statements of the persons who are acquainted with the facts of the case under Section 161 Cr.P.C., obtained the Post Mortem Report of the deceased Mozida Begum dated 02.06.2004 (Exhibit-4), sent the accused to the learned Chief Judicial Magistrate, Lakhimpur, North Lakhimpur for recording his confessional statement (Exhibits-8 to 12). On completion of the investigation, finding sufficient materials against the appellant/accused, filed the Charge Sheet vide No. 47/2004 dated 30.06.2004 against the accused/appellant, for the offence under Section 302/201 of the IPC. The learned Chief Judicial Magistrate, Lakhimpur, North Lakhimpur on 06.03.2009 committed the said G.R. Case to the Court of learned Sessions Judge, Lakhimpur, North Lakhimpur as Section 302 of the IPC is exclusively triable by the Court of Sessions.
(5) On receipt of the record of the aforesaid G.R. case, after it was committed by the learned CJM, Lakhimpur, North Lakhimpur; the same was registered and numbered as Sessions Case No. 38 (N) of 2009 in the Court of learned Sessions Judge, Lakhimpur, North Lakhimpur and on 01.04.2009, a formal charge under Section 302/201 of the IPC was framed against the accused/appellant for allegedly killing his wife Mozida Begum and the charges were read over & explained to him, to which the accused/appellant pleaded not guilty and claimed to be tried. Hence the trial began.
(6) In order to bring home the charges, against the appellant/ accused, the prosecution, examined 8 (eight) witnesses on its behalf. The defence only cross-examined the prosecution witnesses, but did not adduce any evidence. The statement of the accused/appellant under Section 313 Crl. Apl. No. 16 (J) of 2012 Page 3 of 13 -4- Cr.P.C. was recorded on 28.09.2010, wherein he admitted that he was produced before the Magistrate, but he did not remember what was told to him by the said Magistrate nor remembered what he stated before him and the accused/appellant totally denied about the committing of the Crime of the case.
(7) The learned Sessions Judge, Lakhimpur, North Lakhimpur upon appreciation of the evidence adduced by the prosecution, recorded the impugned judgment of conviction as aforesaid and hence, the present appeal.
(8) We have heard Ms. B. Sharma, learned Amicus Curiae, for the accused/appellant and Mr. K. A. Mazumder, learned Additional Public Prosecutor, Assam representing the State.
(9) Ms. Sharma, learned Amicus Curiae for the appellant stated that there is no eye witness to the incident and his conviction is bad as the Trial Court decided the matter on circumstantial evidence though the prosecution failed to complete the chain of evidence to establish the guilt of the accused and that the prosecution failed to prove the guilt of the accused beyond reasonable doubt and as such the impugned judgment of conviction and sentence is liable to set aside and quashed.
(10) On the other hand Mr. Mazumder, learned public prosecutor supporting the judgment and order of conviction submitted that prosecution has placed sufficient materials to prove guilt of the accused.
(11) We have considered the submissions advanced by the learned counsels appearing for the parties and also perused the evidence recorded in the aforesaid Sessions Case, apart from the judgment of conviction recorded by the learned Trial Court.
(12) In order to appreciate the arguments, advanced by the learned counsels appearing for both the parties and to examine the correctness of the Crl. Apl. No. 16 (J) of 2012 Page 4 of 13 -5- impugned Judgment and Order of conviction, it will be appropriate to briefly scrutinize the evidence on record.
(13) The prosecution examined Dr. Abdus Sattar Talukdar (PW.4), the autopsy doctor who performed the post-mortem examination of the deceased Mazida Begum and in his deposition he submitted that while performing such post-mortem examination of the said deceased, he found the following on the said dead body -
Face was swollen, tongue was protruded, neck was swollen, a continuous ligature mark on the upper part of the neck and on dissection of the ligature mark, it was found of parchment colour, both the lungs were congested and the injuries were ante mortem in nature.
The said Doctor clarified that the said deceased died due to asphyxia as a result of strangulation in the neck and it was homicidal in nature. He further deposed that ligature mark found on the neck of the deceased was continuous and such injury may cause death of a person in the ordinary course.
In his cross-examination said PW.4 stated that the continuous ligature mark cannot be caused without any force and he did not come to the conclusion the type of weapon used for strangulation of the deceased.
(14) It is seen that the prosecution by examining said PW.4, the Autopsy Doctor, could prove the injuries found on the body of the deceased and also the cause of her death that as homicidal. We are, therefore, required to see as to whether the prosecution could bring home the charge under Section 302/201 of the IPC against the accused appellant.
(15) PW.1, Md. Haider Ali, a private employee, in his deposition stated that he knew the accused Motleb and his wife, who resides near his house. He also stated that he reached home from his workplace of Arunachal Pradesh Crl. Apl. No. 16 (J) of 2012 Page 5 of 13 -6- on the previous day of the date of occurrence. Around 10:30 PM on the day of occurrence after hearing a hue & cry from Motleb's house, he proceeded towards it, there he met his co-villager Sohrab Ali, PW.2 and on queries been made about the same, he took him to the nearby river 'Boka' and showed him the dead body of Motleb's wife, which was lying by the side of the river and at that point of time around 15 to 20 persons had gathered there. He also stated that he saw accused Motleb there. He further stated that when he looked down at the dead body at that time, he did not find any injury Mark on it and that Police came on the next day, held inquest on the dead body, prepared the inquest report to which he is a signatory.
The defence declined to cross examine him.
(16) PW.2, Md. Sohrrab Ali, a business man by profession, in his deposition stated that he knew the accused Motleb and knew his deceased wife and on the day of occurrence, after closing his shop at Kumarpur market, when he returned home around 10:00-10:30 pm, his wife informed him that both 'pagla' (insane man) and 'pagli' (insane women), [the accused and his deceased wife as known in the village], were not found in their house. Then the said PW.2 accompanied by co-villagers Ramjan, Barek & Yazul went in search of them and during their search they found the accused Motleb crying under a bamboo bush. When he was asked where about his wife, the accused told them that his wife died by drowning in the river and then proceeded towards the river. Then they went to the river side, saw hair and clothes of Motelb's wife floating on water and later, he came across Md. Haider Ali (PW.1), informed him about the incident and also showed him the dead body.
The defence did not cross examine the said PW.2.
(17) PW.3, Abdul Mannan, a cultivator, in his evidence deposed that he is the Village Headman (Gaon Burha) of villages Phukandalani, Balitika and Haripur and that he know the accused and also knew his wife Mazida. He stated that Eazul Haque (PW.6) and Abdul Barek informed him that Mazida's Crl. Apl. No. 16 (J) of 2012 Page 6 of 13 -7- dead body was floating on the river Boka and asked him to go there and on reaching the place, he found Mazida's dead body lying on the bank of the river and also found many people gathered there. He also stated that he then lodged the FIR before police and on arrival of police & magistrate, inquest was done on the dead body, to which he is the signatory and then police sent the dead body for post-mortem examination. He also stated that police seized wet apparels of both the accused and the deceased and also one tobacco container from accused Motleb's house vide Seizure Memo (Exhibit-3) to which he is a signatory. Said PW.3 also deposed that on being asked, accused Motleb replied before police that he killed his wife and kept her dead body tied on the bank of the river.
In his cross examination, PW.3 stated that before lodging the FIR he did not ask Motleb as to how the incident had occurred. He denied the suggestion that he lodged the FIR on suspicion.
(18) PW.5 Smti. Khatiza Khatoon, wife of PW.2, in her evidence deposed that around 10 pm on the day of the incident she heard a minor child of Motleb was crying loudly in his house and as such she called Motleb and his wife, but they did not respond, as such she went to their house with a lamp and found the door of their house open. Then she entered the house, saw three children of Motleb were sleeping and another one was crying sitting on the bed, but she neither found Motleb nor his wife in the house. Then she awake the elder child of Motleb and asked him to take the other child, who was crying, in his lap and then she returned to her house and informed her husband (PW.2) that Motleb and his wife were not found in their house. She also stated that thereafter, her husband went out in search of them and she followed him, accompanied by Ramjan, Eajul and Barek and all of them proceeded towards the river, where they found Motleb crying and on being asked, he replied that his wife died by drowning in the drain and then they made hue & cry, pursuant to which people gathered at the place and Motleb's wife Mozida was lifted dead from water.
Crl. Apl. No. 16 (J) of 2012 Page 7 of 13 -8-In her cross examination PW.5 stated that she did not see any quarrel between Motleb & his wife Mozida during the day hours or at night on the date of the incident and that 3 to 4 years prior to the incident, Motleb was not mentally sound for which he was treated at Tezpur Mental Hospital. But she stated that at the time of the incident he was normal.
(19) PW.6 Md. Eazul Hussain, a cultivator by profession, in his evidence deposed that on the date of the incident around 10:00 p.m. Sohrab Ali (PW.2) informed him that the accused and his wife were not at home, whom the villagers usually called as 'Pagla' & 'Pagli'. He also stated that he accompanied Sohrab, his wife, Ramjan and they searched for both of them here & there and in course of such search they proceeded towards the river where they found accused Motleb crying near a bamboo groove on the side of the river. On being asked, Motleb replied that his wife had died by drowning on the river and hearing that they raised alarm for which people gathered in the place and all of them lifted the dead body of Mozida, the wife of the accused, from the river.
During his cross examination PW.6 stated that while the body of the deceased was on water, he saw that the entire dead body was wrapped with 'Kalmou' (an aquatic creeper).
(20) PW.7, Indreswar Dihingia, the Investigating Officer of the case in his deposition submitted that he received the FIR of the case from Abdul Mannan (PW.3) and he investigated the case, found the dead body of the deceased on the side of the river 'Pabho' by fastening with 'Kalmow' plant by her hair. He also stated that he made inquest on the dead body of the deceased in presence of one Dharma Kanta Mili, an Executive Magistrate, made seizures, sent the dead body of the deceased for post-mortem examination, sent the accused, who was arrested, to the Magistrate requesting him record confessional statement of the accused and on completing the investigation & on collecting the post-mortem report submitted the charge sheet in the case.
Crl. Apl. No. 16 (J) of 2012 Page 8 of 13 -9-In his cross examination said PW.7 stated that PW.3, the informant of the case is the Laat Gaonburah of the concerned village and denied the suggestion that he intimidated and threatened the accused to give his confessional statement.
(21) PW.8, Roekta Lal Das, Judicial Officer by profession, in his evidence deposed that while serving as Sub-Divisional Judicial Magistrate of North Lakhimpur, on 04.06.2004 he recorded the confessional statement (Exhibits-8 to 12) of the accused Md. Abdul Motleb. The said PW.8 in his evidence brought to the notice of the Trial Court that by order dated 02.06.2004 (Exhibit-6), learned CJM, Lakhimpur, North Lakhimpur directed him to record statement under Section 164 Cr.P.C. of the accused and on his production on the same date before him, he explained the ingredients of said Section 164 Cr.P.C. to the accused, to which said accused person expressed his willingness to give such confession. Accordingly, the PW.8 fixed the matter on 04.06.2004 for recording his said statement under Section 164 Cr.P.C. giving the accused time for reflection of his mind and on 04.06.2004 when the accused was produced before him at 10:30 a.m., PW.8 again told the accused about the consequence of such confessional statement under Section 164 Cr.P.C. and as explained in the said Section and kept him in his Court chamber up to 1:30 p.m. for his reflection of mind. At 1:30 p.m. when the accused was asked about his confessional statement, he expressed his willingness and accordingly PW.8 passed the necessary order on 04.06.2004 (Exhibit-7) and also recorded such confessional statement of the accused person Abdul Motleb on 04.06.2009 as per the procedure of Section 164 Cr.P.C. (Exhibits-8 to 12). The said PW.8 also deposed that Exhibit 12 is the necessary certificate under Section 164 Cr.P.C. wherein the accused concerned had put his signature. The said PW.8 further deposed that the accused did not complain before him about any ill treatment made to him by the police while in their custody or by any other person and neither complained that he was forced or induced to give such confession and did not find any injury on the person of the accused. The PW.8 in his said deposition Crl. Apl. No. 16 (J) of 2012 Page 9 of 13
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specified that there was no police personnel or any other person interested with the investigation of the case was present at the time of recording of his confessional statement.
In his cross examination PW.8 denied the suggestion that the accused did not made any confessional statement and stated that he signed the page where the confessional statement of the accused was recorded.
(22) From the statement made by accused under Section 164 Cr.P.C. (Exhibits-8 to 12) it is seen that the accused confessed that after dinner, on the night of the incident, the deceased beat up their daughter for which he entered into confrontation with his wife and when she retorted back, he being already annoyed with her, pulled her to the adjacent road and in the darkness of the night pressed her on the neck with both of his hand for a long time and killed her and then he quietly dragged her to the nearby river Boka and threw her into the said river fastening the strands of her hair with 'Kalmou' the aquatic creeper.
(23) It is seen from the Post-Mortem Report, Exhibit-4 that the deceased person namely, Mozida Begum, as proved by the autopsy doctor PW.4, who conducted the post mortem on the dead body of the aforesaid deceased, died due to asphyxia as a result of strangulation in the neck, which was homicidal in nature, where the ligature mark found on the neck of the deceased was continuous and the said autopsy doctor PW.4 specified that such injury may cause death of a person in the ordinary course and that such continuous ligature mark cannot be caused without any force.
Further, the informant PW.3, PW.6 and PW.7, the Investigating Officer in their evidence stated that dead body was found to be fastened with the aquatic creeper i.e. 'Kalmou'.
(24) From the above it is seen that the confessional statement made by the accused Md. Abdul Motleb under Section 164 Cr.P.C. is fully corroborated by the evidence of above noted prosecution witnesses. Moreover, it is also Crl. Apl. No. 16 (J) of 2012 Page 10 of 13
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not the case of the defence that the confessional statement made by the appellant/accused under Section 164 Cr.P.C. is not in conformity with the said section. The defence totally failed to destroy the evidences which were proved by the prosecution.
(25) Though there is no direct evidence or any eye witness to the incident that the accused/appellant Md. Abdul Motleb was involved in the case in hand with regard killing of the deceased person Mozida Begum, but all the evidences of the case clearly point the finger to the accused Md. Abdul Motleb in committing the crime in the present case. In the present case, the deceased died due to asphyxia as a result of strangulation in the neck that was homicidal in nature in which the ligature mark found on her neck was continuous, which injury, in the ordinary course, cause death of a person, where such continuous ligature mark caused with force. It is clear from the evidence that the incident occurred at the darkness of the night and the deceased was found in the river with the above injuries.
(26) Though submitted by the learned Amicus Curie, but there is nothing on evidence on record to show that the accused-appellant had acted under grave and sudden provocation. In his Section 164 Cr.P.C. statement the accused appellant stated that on the night of the incident, the deceased beaten up their daughter for which he entered into confrontation with his wife and when she retorted back, he could not tolerate it, as he was already annoyed with her because of her loose character, earned bad reputation and had to pay fine for her illicit relation with neighbour and as such he pulled her out of the house to the adjacent road and in the darkness of the night killed her by pressing her neck by his both hands with full force for a long time and thereafter quietly dragged her body to the nearby river where threw her in the same. Even if the act of the accused-appellant is considered to be of grave and sudden provocation, the same would not still bring the case within the ambit of Exceptions to Section 300 IPC, so to constitute an offence of culpable homicide not amounting to murder. The accused-appellant had Crl. Apl. No. 16 (J) of 2012 Page 11 of 13
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grudge against the said deceased because of her alleged loose character and he wanted to take revenge. The nature of act of the accused appellant forcefully pressing the neck of the deceased by both of his hands for quite long and then throwing her body into the river by dragging the same silently from the place of occurrence proves the guilt of the appellant/accused accused- beyond reasonable doubt, to have committed offence of murder punishable under Section 302 IPC and he has been rightly convicted for the same.
(27) From the above, we find that the prosecution adduced sufficiently convincing evidence which proved the complete chain of evidence and the circumstances with regard to his guilt in the case beyond all reasonable doubt that it is the accused appellant Md. Abdul Motleb who had caused the death of Mozida Begum, his wife and also tried to destroy the evidence involved in the case, on the fateful night of the date of the incident.
(28) In view of the aforesaid discussion, we are of the view that the judgment of conviction and sentence dated 19.12.2011 with regard to the present appellant/accused has been rightly recorded by the learned Sessions Judge, Lakhimpur, North Lakhimpur in Sessions Case No. 38 (NL) of 2009, corresponding to G.R. Case No. 552/2004, arising out of Laluk Police Station (District-Lakhimpur) Case No. 65/2004 and the same does not require any interference in appeal and accordingly this appeal is dismissed being devoid of merit and affirm the conviction and sentence recorded by the learned Trial Court.
(29) The Government of Assam is directed to deposit a sum of Rs. 1,00,000/- with the Sessions Judge, Lakhimpur, North Lakhimpur within a period of 3(three) months from the date of receipt of the copy of this Judgment, towards compensation under Section 357-A of the Cr.P.C. payable to the four children of the deceased, namely, Mozida Begum and on receipt of the said amount, learned Sessions Judge, Lakhimpur shall distribute the same equally to the said four children of the deceased Mozida Begum on their Crl. Apl. No. 16 (J) of 2012 Page 12 of 13
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proper identification and further shall keep the said amount in Fixed Deposit Accounts in their respective names in a Nationalised Bank, which they shall be able to withdraw on attainment of the age of majority.
(30) We hereby appreciate the valuable assistance rendered by both Ms. B. Sharma, learned Amicus Curiae, appearing on behalf of the appellant/accused and Mr. K. A. Mazumder, learned Additional Public Prosecutor, Assam representing the State. The learned Amicus Curiae Ms. Bijita Sarma shall be entitled to Rs. 7,500/- towards her hearing fees.
(31) Registry shall send down the records along with copy of the Judgment.
JUDGE JUDGE
ISINGH
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