Gauhati High Court
Abdul Haque Mazumdar vs State Of Assam on 19 July, 2001
Author: A.K. Patnaik
Bench: A.K. Patnaik
JUDGMENT
R.S. Mongia, C.J. (Acting)
1. We had allowed the appeal of the appellant and had acquitted him out had observed that the reasons therefor would be recorded lateron. We proceed to record reasons.
2. Abdul Haque Mazumdar was convicted under section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 3,000, in default to suffer rigorous imprisonment for two years more by Sessions Judge, Hailakandi vide judgment dated September 24, 1998 after recording a finding that he had murdered his wife Mst. Anowar Begum. The conviction was recorded on circumstantial evidence, namely, (1) the deceased was found lying dead in the living room of the house where the accused (husband of the deceased) also used to stay (ii) PW 2, PW 3, and PW 4, namely, Kazi Jamal Uddin, Jalal Uddin and Kaji Nasir Uddin had allegedly heard cry of the deceased and they had seen the accused escaping from the room; (iii) the weapon of offence, i.e. Bati Dao (a knife by which one cuts vegetables, fish etc.) was lying near the dead body.
3. The prosecution story as unfolded during the trial was that PW 2 Kazi Jamal Uddin, who is the brother of the deceased, gave a written report at police station, Karlicherra on 17th January 1996, at about 4.30 PM, in which it was mentioned as under (translated into English):
"To, The Officer-In-Charge, Katlicherra Police Station, Complainant: Jamaluddin S/o Late Mahmud Ali, Resident of Rangpur, Part-VII, P.S. - Katlicherra, Dist.-Hailakandi.
Sir, Humble submission in that yesterday (16.1.1996) at about 11 AM, I went to the house of my newly married younger sister Must. Anowar Begum's husband Md. Abdul Haque Mazumdar at Rangpur Part-IV. When I told him (sister's husband) about my wish to take my sister to Naiyor, he said that, 'A bichar' (extra Judicial trial) will be held against your sister. The following persons will arbitrate the dispute.
At about 10.00 AM, today (17.1.1996) I alongwith my relatives, Md. Surman All and Md. Jalaluddin went to may sister's house to take her to Naiyor. Hearing no any sound of anybody's existence in the house, I called my sister and entered their living room. There I saw my sister's deadbody lying with cut injury in the left side of her nape. A blood stained 'Ball dao' (a cutting complement by which one cut vegetable, fish etc.) as lying near the deadbody.
As a result of conspiracy made by the following arbitrators, my brother-in-law (younger sister's husband) Md. Abdul Haque killed my sister by cutting her neck with a dao.
I, therefore, request your honour to take necessary steps in this regard. During investigation names of the witnesses will be out.
Name of the accused :
1. Abdul Haque Mazumdar S/o Matasin Ali Mazumdar, Rangpur, Part-lV.
Name of the arbitrators :
1. Mudris Ali, S/o Late Kala Mian.
Rangpur, Part-III.
2. Mainul Haque Mazumdar, S/o Matasin Ali Mazumdar, Rangpur, Part-IV.
3. Faizul Haque Mazumdar, S/o Matisin All Mazumdar, Rangpur, Part-IV.
4. Abu Taher, S/o Unknown person Resident of (torn.)
5. Matasin Ali Mazumdar, S/o Unknown.
Scribe wrote the Ejahar as per my version, read it over to me and finding it as per my version I put my signature below :
Scribe :
Sd/- Kazi Habibur Rahman.
Sd/-
Kaji Jamaluddin Rangpur, Part- VII, (signature of the complainant)"
4. It will be seen from the above the PW 2 Jamal Uddin had got the first information report written from one Kazi Habibur Rahman who incidentally has not been produced as a prosecution witness.
After the prosecution had put in the challan, the accused-appellant was charged as under :
"I.Sri K.S. Nath, Session Judge, Hailakandi Hereby charge you Abdul Haque Mazumdar as follows :
That you in between 8 and 9 AM of 17.1.1996 at Rangpur Part-VI in your bed room committed murder of your wife Anwara Begum, and thereby committed an offence punishable under section 302 of the Indian Penal Code and within my cognizance. And I hereby direct that you be tried by the said court on said charge. The charge read over and explained to which the accused pleaded not guilty and claimed to stand trial. Dated the 6th July, 1998"
5. To bring home the aforesaid charge, the prosecution examined six witnesses. PW 1 is the doctor (Dr. A.K. Shome), who had performed post-mortem examination of the deceased on 18th January 1996 and opined as under :
"One incised wound over anterior lateral part of right side of the neck 2 cm below the mandible transversely extending up to the level of 4 cm below Mastoid process, cutting right common carotid Artery and right Jugular vein and sterno-mastroid muscle of the right side. Injury was 12 cm x 6 cm x 4cm, fresh grievous and caused by sharp weapons. To my opinion death was due to the shock and haemorrhage resulting from sustained injury. The injury was homicidal. Ext. 1 is the post-mortem report & Ext. 1(1) is my signature."
6. PW 2 Kazi Jamal Uddln is the brother of the deceased and the informant. His statemetn was recorded by the trial Court on 30th July 1998. He stated that about two and a half years back, one day around 10.30 AM, he had gone to her younger sister Anowar's house with Jalal Uddin, Nasir Uddin and Surman Ali. There they saw Motasin AH (father-in-law of the deceased), Mujibar and Abbas Sayeed consulting and conferring between themselves regarding a dispute of bringing cowdung by Motasln Ali which had been asked by the deceased. It was commented by Motasin Ali that his daughter-in-law, a graduate, had ordered him to bring cowdung. Accused Abdul Haque from the court-yard had told his father that, he was not allowed to pass a peaceful conjugal life with his previous wife by his father. After a while a cry of his sister was heard. They came out from the sitting room and found accused Abdul Haque coming from the room where his sister had raised alarm. He went to the room and saw a cut injury over the neck of his sister. Other persons followed him and found his sister on the ground in injured condition. He went to the Police and lodged the FIR. In cross-examination he, stated that when he told about the occurrence to the Officer-in-Charge at the Police Station, he got it written from a person unknown to him and it was not read over to him. The distance between the place of occurrence and the Police Station is about 3 KM. The police party had started from the Police Station to the place of occurrence at about 4 PM while he had reported the incident at about 1.00PM. He further stated in the cross-examination as follows :
".....It is not a fact the I did not tell the police that I, Motasin Ali and others were discussing about the cowdung dispute as I asserted in the examination in chief and Nasir Uddin did not accompany. It is also not a fact that I did not tell the police that suddenly at the moment 1 heard the cry of my sister in a room of other house and I rushed to that room and I found the accused coming out from her room. The mother of the accused is paralytic patient and she was lying on her bed in her room. It is not a fact that I did not tell the police that I did not get any sound of my sister. I found a Kitchen 'Dao' nearby my sister and my Injured sister did not respond. It is not a fact that I did not tell the police regarding altercation between the accused and his father as I heard. It is not a fact that my evidence is totally false and I suppressed the fact. It is not a fact that the accused did not cause injury in person of my sister resulting her death."
7. It may be observed here that in the statement under section 161 CrPC, PW 2 Kazi Jamal Uddin had stated that on 16th January 1996, at about 3 PM, he had gone to his younger sister's (deceased) house to bring her back on customary visit and told his brother-in-law (accused) that he wanted to take his younger sister home. He was told by the brother-in-law (accused) that there was some dispute between the deceased and her father-in-law and some sort of family trial was to take place which was to be held by his brothers and the husbands of his younger sisters and he would only be able to take his sister after the trial. He also told him as to what the dispute was, i.e. ordering the father-in-law by the daughter-in-law to bring cow-dung. He further stated that on 17th January 1996, at 10 AM, he had gone to his sister's house alongwith his relatives Mohammad Surman All and Mohammad Jalal Uddin. There he found his brother-in-law talking to his mother, i.e., mother-in-law of his sister. The accused went away through the kitchen. Having heard no noise he pushed open the door of his younger sister's room and found her lying on the ground in pool of blood. He presumed that after the trial of the younger sister by the family members, her father-in-law, his sons-in-law and her sister's husband's (brother-in-law) had killed his sister after conspiring to do so. On his way to the Police Station, he met one co-villager Habibur Rahman and got the report written from him which he presented before the Police Officer.
8. PW 3 is Jalal Uddin. He stated the both the parties are his relatives. The occurrence took place at about 10.00 AM about 2 1/2 years back. He repeated what PW 2 had said but had stated that he did not notice any other thing lying nearby the injured person. After seeing the injured person he immediately left for his house. In cross-examination he stated as under :
"What I told above I also told to police while I was examined. It is not a fact that I did not tell the name of Nashir before Police and found Faizul Haque, his two son-in-law and other sons holding a discussion among themselves in the sitting room and the accused was found outside and came at the door and told his father that he was not allowed by his father to pass a peaceful conjugal life with his previous wife. It is also not a fact that we did not hear any cry and rushed to inside of the room of Anwara Begum and found her lying on the ground with profuse bleeding and accused was fleeing away from that room. It is not a fact that I told the police that we did not get Motasln Ali in his house as he went to a 'owas' gathering (religious convention). It is not a fact that I told the police that getting no response PW 2 Jamal Uddin entered in her room and found her in injured condition lying on the ground and Jamal Uddin raised cry when we also entered the room."
9. PW 4 is Nasir Uddin. He stated before the trial Court that on 17th January 1996, about 10.00 AM, he along with Jalal and Surman went to the house of the accused. Then he states almost the same version as given by PW 2 Jalal Uddin. He further stated as under ;
The accused was outside who told his father that he was not allowed to pass peaceful life with his previous wife and gain he created trouble. Then we heard sound of our sister and we rushed to her room and found the accused fleeing away and inside the room we found Anwara having injury over her neck with profuse bleeding lying on the ground. Near her a kitchen dao was also found having blood stain and material Ext. 1 is that dao. Jalal went to the police station and we returned to our house and reported the matter to others. Police visited the spot and I also accompanied them and the dead body was taken for post-morterm."
10. It may be observed here that neither in the first information report nor in the statement under section 161 CrPC, PW 2 Jamal Uddin mentioned about the presence of Nasir Uddin. In his statement (PW 4) he does not mention the presence of Jamal Uddin on 17th January 1996 and rather states that it was Jalal Uddin (PW 3) who had gone to the Police Station to lodge the FIR. In cross examination this witness stated as under:
"....It is not a fact that I did not tell the police that I did not accompany Jalaj and others to the house of the accused on the day of occurrence. It is not a fact that I told the police thai 1 got information of the occurrence at around 3 PM."
11. PW is Rina Begum who is the wife of PW 3 Jalal Uddin. She states that accused is his uncle. She was unmarried. The house of her father and that of the accused was in the same premises but they had separate messes and houses. The deceased had expired at about noon. At about 11.30 AM on the date of occurrence, her uncle i.e. the accused had left for the field for grazing cattle. She could not say as to who gave the blow to her aunt. She did not find the brothers of the deceased in her house before her death. The police visited the house after dusk. At the time of occurrence she was a student of class X. She was declared hostile by the prosecution and on a question being put by the Public Prosecutor she gave the following answer :
"It Is not a fact that I told the Police that I found Jalal Uddin alongwith other 2/3 persons came to the house of my uncle, the accused, and after a while I heard cry when other people also came."
12. On cross-examination by the defence counsel, she stated as under:
"My paternal grand mother is ailing and paralytic patient. We resided in the separate homestead. At about 10/10.30 AM. I came to the house of my uncle, the accused, on the date of occurrence to attend my grandmother. Then myself, my uncle, the accused, and his wife carried her to the threashing ground. After about two hours on messaging her we took her back and rny uncle went to the field for grazing cattle. I left for my house.
I did not find any sitting of my grandfather and other uncles and PWs 2 and 4 regarding any dispute for settlement. After taking bath I again came back to my grandmother. I did not get my deceased aunt and I went to her room and found her in injured condition when my uncle was in the field, I raised hue and cry. My father, my accused uncle and others came. At about 2.30 PM the people of the parents house of my said aunt came among whom there were Jamal and others. When police came they also got my uncle present in the house and he was also arrested. My father went to the police station after the occurrence (by Court)."
13. PW 6 Ranjit Lal Roy was the Investigating Officer. He stated that he was entrusted with the investigation of the case. On 17th January 1996, he visited the spot and took a snap of the deceased and held inquest of the dead body and prepared sketch map. He further stated that the FIR was received by the Officer-in-Charge at Police Station at 4.30 PM on 17th January 1996, and he started for the place of occurrence at about 4.40 PM. The distance between the place of occurrence and the Police Station is 3 KMs. He found the accused at the place of occurrence and arrested him. He further stated that Jamal Uddin had not told him regarding the talk of cow dung on the date of occurrence. PW 2 Kazi Jamal Uddin had also not told him that Nasir Uddin was also one of the associates who accompanted him to his sister's house. He also did not talk about any cries of his sister in her room. He further stated that PW 2 Kazi Jamal Uddin had stated that he had found the accused coming from kitchen after having a talk with his mother. He also did npt tell him anything about the altercation between the accused and his father that his father did not allow him to pass a peaceful conjugal life with his previous wife.
14. The case of the accused was of complete denial. No evidence was led in defence.
15. Learned counsel for the appellant argued that is a case where there is no eye witness. The circumstances which have been mentioned in the opening paragraph of the judgment do not lead to the irresistible conclusion that the appellant was the person who had murdered his wife.
We have heard the learned counsel for the parties.
16. It will be seen that the prosecution had been improving and giving different stories on different stages. FIR was lodged by PW 2 Jamal Uddin who is the brother of the deceased. The same was, however, written by one Habibur Rehman who has not been examined. In the FIR there is only mention that PW 2 Kazi Jamal Uddin was accompanied by Surman Ali and PW 3 Jalal Uddin. Surman Ali has not been produced. PW 4 Nasir Uddin has not been mentioned in the FIR nor in the statement of PW 2 under section 161 CrPC. The scribe of the FIR has not been produced. There is no mention In the FIR or in the statement of PW 2 under section 161 CrPC regarding the hearing of the cry of the deceased. In the FIR there is no mention that PW 2 Jamal Uddin had seen the accused leaving the house. During the trial, all three witnesses, PW 2, PW3, and PW 4 stated that when they came to the house of the deceased a giphar (consideration) was going on in the room of the father of the deceased where others were present. At that time, the accused was loitering in the courtyard and came to the door where PWs were sitting and spoke to the father accusing him that his previous marriage had failed because of his father's behaviour. Thereafter there was a cry of the deceased. They entered the room of the deceased and found her dead. They also saw the accused escaping. PW 5 Rina gave a totally different story. Though she was declared hostile yet nothing could be elicited by the persecution.
17. In the immediate version the PW 2 gave to the police he did not mention anything regarding hearing of the cry of the deceased or seeing the accused escaping. These two were very material facts and rather very relevant judging the veracity of the prosecution case. Even in his statement under section 161 CrPC. PW 2 did not mention about these two facts. There Investigating Officer PW 6 stated that PW 2 had never stated before him of his having seen the accused fleeing away. Further it is not understood as to how in the FIR name of PW 4 Nasir Uddin is not mentioned whereas the name of one Surmam Ali is mentioned who is stated to have accompanied PW 2. Surman Ali is not examined. PW 4 Nasir Uddin states that he along with Jalal Uddin (PW 3) and Surman had gone to the house of the deceased. He does not mention Jamal Uddin who is the informant (PW 2). Rather he says that Jalal Uddin (PW 3) went to the Police Station. The version of PW 5 during examination-in-chief could not be shaken or discredited during cross-examination by the prosecution after she was declared hostile. In fact what she stated in the examination-in-chief was almost the same what was sated before the police under section 161 CrPC. The occurrence is stated to have taken place at around 10.30 AM. It is not understood that how did it take almost six hours to cover the distance of three KMs to make a report before the police. The dao which was found near the deadbody was not tested to see if there were any finger prints, of the accused. Once the case is dependent solely on circumstantial evidence, the motive also becomes relevant. As per the prosecution, case itself, the accused was rather angry with his father as he had spoiled his previous marriage. If there was any motive it could be with the father-in-law of the deceased as he could have felt offended when he was asked to bring cowdung by his daughter-in-law. The marriage had taken place on 15th December 1995 and the incident took place on 17th January 1996. There doe not seem to be any motive on the part of the accused to commit the crime. Merely because a dead body was found at the residence of the deceased cannot go to conclude that the accused was the murderer. From all the circumstantial evidence it seems that the so-called eye witnesses PW 2, PW 3, and PW4 did not see the accused escaping from the alleged place occurrence.
18. From the entire discussion as above it cannot be held that the prosecution on the basis of the circumstantial evidence, has been able to bring home the charge against the accused appellant beyond reasonable doubt. Consequently, the appeal is allowed and the conviction and sentence awarded by the trial Court are hereby set aside and the accused is acquitted. The accused-appellant, who is in custody in jail, be set at liberty forthwith unless required in any other case.