Gauhati High Court
Zakir Hussain Laskar vs The State Of Assam on 31 January, 2017
Author: Achintya Malla Bujor Barua
Bench: Achintya Malla Bujor Barua
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM; NAGALAND; MIZORAM &
ARUNACHAL PRADESH)
Crl.A. 153/2013
ZAKIR HUSSAIN LASKAR
-versus-
THE STATE OF ASSAM
BEFORE
HON'BLE THE CHIEF JUSTICE MR. AJIT SINGH
HON'BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
Advocates for Appellant :: Mr. R. Dhar
Advocates for the Respondent :: Mr.K. Konwar,Addl.P.P., Assam
Date of Hearing :: 31.01.2017
Date of delivery of Judgment :: 31.01.2017
JUDGMENT & ORDER
(Achintya M alla Bujor Barua, J)
Heard Mr. R. Dhar, learned counsel for the appellant and Mr. K. Konwar, learned Addl. Public Prosecutor, Assam.
2. The appellant, Md. Zakir Hussain Laskar had been convicted under Section 302 of the IPC and sentenced to undergo Rigorous Imprisonment for life and to pay a fine of Rs. 20,000/- and in default to undergo Simple Imprisonment for 6(six) months.
3. The prosecution case is that the deceased Jahanara Begum was the wife of the accused Md. Zakir Hussain and they were married for about three and half years. The accused Zakir Hussain was doing Page 1 of 12 business in Saudi Arabia since long and at the time of the marriage he had assured that he would come back to his place of residence at village Balighat under Arunachal Police Outpost in the District of Cachar and stop his business in Saudi Arabia, or else he would take his wife Jaharanra Begum with him to Saudi Arabia. But after the marriage the accused went back to Saudi Aabia, without taking his wife along with him. He had returned to his village after a gap of three years and on his return, his wife had insisted that she also be taken along with him when he goes back to Saudi Arabia. As the accused had purchased only one ticket, the wife, who was insisting that she be also taken along with him to Saudi Arabia, had a quarrel with the accused.
4. On the night of 10.02.2002, when some of the neighbours had arrived upon hearing a hulla, the deceased was found tied to betel-nut tree and the accused-husband was found sitting in the verandah of their house. The accused told one of the neighbours, namely, Badsha Mia Laskar (PW5) that four persons came to the house of the accused and committed robbery/dacoity in their house and they had tied the accused in the verandah by making him unconscious and also the deceased was tied to the betel-nut tree and, thereafter departed with several gold ornaments etc. The said PW5 informed the police about the incident over telephone and Silchar P.S. Case No. 193/2002, U/S 395/396 IPC was registered. On the arrival of the police, the body of the deceased, who was believed to have been in an unconscious state, was sent to the hospital where she was declared to be brought dead. Later on, after the post-mortem was done and the body was brought to the residence of the accused, the informant father and other relatives were not allowed to clearly view the body of the deceased and subsequently the last rites were done. The police on the night of 11.02.2002 searched the premises of the accused, where the Page 2 of 12 occurrence had taken place and had seized certain suitcases, ornaments, bags, almirahs etc.
5. On 12.02.2002 the father of the deceased had lodged an ejahar stating that he suspects that his daughter was killed by the accused. Consequently Silchar P.S. Case No. 202/2002 was registered. The police on 13.02.2002 had made some further search in the premises of the accused and had seized certain gold ornaments, clothes etc.
6. Upon investigation, the Silchar P.S. Case No. 193/2002 under Section 395/396 IPC was closed with a final report that upon investigation no material could be found to substantiate the allegation of robbery/dacoity. On the other hand the Silchar P.S. Case No. 202/2002 under Section 302 was charge-sheeted resulting in Case No. 12/2006 in the Court of the learned Sessions Judge, Cachar, Silchar. By the judgment dated 25.03.2013 the learned Sessions Judge had convicted the accused-appellant under Section 302 IPC, against which the present appeal had been preferred.
7. PW1, Nurul Idlul Majarbhuiya, being the brother of the father of the deceased and PW2, Hussain Ahmed Majarbhuiya, being one of the sons of the brother of the father of the deceased, stated that on 11.02.2002 they came to know that there was a dacoity in the house of the accused and the deceased Jahanara Begum, who was the wife of the accused was killed in such incident. But noticing the conduct of he accused and his family members in preparing the burial, without allowing the relatives of the deceased to look at her body, strong suspicion had arisen that the death was not caused due to dacoity but was caused by the accused and accordingly at the instance of one Nurul Islam Majarbhuiya, the instant ejahar was lodged. PW3 Abdul Wahid Majarbhuiya, being the father of the deceased had deposed that as promised, the accused had not taken the deceased wife along with Page 3 of 12 him to Saudi Arabia for which his deceased daughter had a quarrel with her husband. Before death was caused to the deceased, the accused- appellant had made certain Life Insurance Policies in her name for an amount of Rs. 8,00,000/-. It was stated that the PW3 informant father had a suspicion that his daughter was murdered and accordingly lodged the ejahar. Similar depositions that they suspect that it was a case of murder was also made by PW4 Lutfur Rahman Majarbhuiya, while PW 7 Pradip Kumar Deb, PW8 Abdul Odud Mazarbhuiya had stated that the accused had confessed before the police that he had killed his wife Jahanara Begum.
8. PW5, Badsha Mia Laskar, who had given the telephonic information to the police regarding the dacoity/robbery had stated in his deposition that at about 2.30 a.m. in the night of the occurrence he had heard halla from the house of the accused and upon going to the house of the accused he had seen that the deceased Jaharnar Begum was tied to a coconut tree and found the accused Zakir Hussain sitting in the varenda, who upon being asked stated that he was attacked in the house.
9. PW9 Dr. B.C. Roy Medhi, who had performed the post-mortem, had stated that ligature marks were present in both forearms close to the wrist joint of the deceased and another ligature mark with smooth margins of 0.2 cm was present in the front and anteroleteral surface of the neck, but such work was absent in the back of the neck. According to the opinion of the doctor death was caused due to asphyxia resulting from antemortem strangulation by a ligature which was homicidal in nature.
10. PW12 Md. Arim Atowar Rahman being the Investigating Officer stated that on 10.02.2002 he was posted as S.I. of Police on Arunachal Police Outpost and had investigated the Silchar P.S. Case No. Page 4 of 12 193/2002. During investigation he had visited the house of the accused Zakir Hussain Laskar and had also gone to the bed-room of the accused where he used to stay with his wife. The almirah, dressing table, VIP bag etc. were found open and the articles contained therein were found to be scattered, but there was no sign or symptom of violent mark of breaking open the almirah, dressing table and the VIP bags etc. He found the dead body of the deceased outside the bed room and it was tightened by the neck with a flexible wire to a beetle-nut tree inside compound and the hands were also found tied to the beetle-nut tree with flexible wire. A wine bottle was also found kept inside the clothes of the deceased. The Investigating Officer states that he did not find any sign of dragging of the body to the place of occurrence i.e. on the earth of the courtyard and no mark of violence was also found nearby the spot where the dead body of the deceased was found tied to the betel nut tree. It was stated that there was sufficient electric light in the place of occurrence. The Investigating Officer states that the accused during interrogation had confessed that he had caused death to his wife Jaharnara Begum and the accused had lodged the FIR by making a false allegation of dacoity. The accused also led the Investigating Officer to his room and showed that the concealed gold ornaments were kept under the bed. Certain LIC policies in the name of the deceased amounting to total of Rs. 7,25,000/- was also seized from the accused.
11. The post-mortem report also showed that there were ligature marks on both forearms close to the wrist. It also shows a ligature mark 0.2 cm wide was present over the front, anteroleteral surface of the neck but was absent in the back side. An opinion was made that death was caused due to asphyxia resulting from antemortem strangulation by a ligature which was homicidal in nature.
Page 5 of 1212. The accused-appellant as DW1 had stated that at 12/12.30 in the night somebody called his father, who was a Doctor, and after the door was opened the persons entered the room and covered the face of the accused with a cloth and thereafter a scuffle had taken place and after a while the accused fell unconscious. After gaining his sense he found that his wife was not on the bed and he had raised a hue and cry and upon coming to the veranda, and found that his neighbours, including Badsha Mia had come to their house. He also found that his wife was kept tied to a betel-nut tree. The accused as DW1 also stated that the police had put pressure on him to produce the gold ornaments and he having succumbed to the threats and out of fear had given the gold ornaments belonging to his mother and younger sisters. The accused in cross states that he had not undergone any treatment in any hospital. He also denies that he had killed his wife and that he has manufactured the story of dacoity to save himself. He also stated that about one year prior to the death of his wife he had purchased Life Insurance policies in her name amounting to Rs. 8,00,000/-.
13. Similarly DW2, Nazmul Hussain Laskar, being the younger brother of the accused states that the police had asked them to give the gold ornaments and money that remained in their house and out of fear their mother had given her gold ornaments and also all those of their sisters.
14. In the statement under Section 313 Cr.P.C. the accused states that a dacoity was committed in their house on the relevant night and at the time of the dacoity he was brought to the varenda and his legs were tied with a cloth and when they had released him he had found that his wife was tied to a betel-nut tree and thereafter his wife was shifted to the medical college from where he got the information that she was dead.
Page 6 of 1215. The final report in Silchar P.S. Case No. 193/2002 was also exhibited as Ext. 20 wherein it is stated that during the investigation the Investigating Officer had visited the place of occurrence and the body of the deceased was found tied to the betel-nut tree by her neck with flexible electric wire. It was stated that the betel-nut tree was in the front of the house adjacent to the village path, which can easily be seen by any passer-by and there is sufficient electric light in the front side of the house. Both hands of the deceased were also tied to the betel-nut tree with flexible wire and a liquor bottle was kept inside her clothes. It was stated to have been alleged that the dacoits had poured liquour into her mouth but it could not be understood as to why the dacoits were carrying wine bottle with them for pouring it in the mouth of the deceased. It was stated that the accused had alleged that the deceased was dragged from the bedroom towards the betel-nut tree, but there were no sign of any dragging at the place of occurrence i.e. on the earth of the courtyard. Moreover no mark of violence could be found in the earth around the betel-nut tree. It was also stated that although the almirah, dressing table, bags were found open but there was no mark of breaking them open. Also there was no mark of violence on the body of the deceased, except the ligature marks on the throat and no other injury mark could be detected in the body of the accused. Further there was no symptom of any sorrow in the appearance of the accused and it was stated that the house was situated in a very secured area and there were many houses surrounding on all sides and therefore it would be a risk for four persons to commit a dacoity. Accordingly the final report was submitted and the case under Section 395/396 was closed.
16. The Hon'ble Supreme Court in the case of Trimukh Maroti Kirkan reported in (2006) 10 SCC 681, in paragraph 15 held that when an offence like murder is committed in secrecy inside a house, the initial Page 7 of 12 burden to establish the case would undoubtedly upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. Accordingly it was held that in view of Section 106 of the Evidence, there would be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away simply by keeping quiet and offering no explanation on the supposed premises that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.
17. In paragraph 16, the Hon'ble Supreme Court, had referred to its earlier decision in Collector of Customs v. D. Bhoomall reported in (1974) 2 SCC 544, wherein in paragraph 32 it had been held that as per Section 106 of the Evidence Act, the burden to establish those facts is cast on the person concerned, and if he fails to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution would rebut the initial presumption of innocence in favour of that person, and in the result, prove him guilty.
18. The Hon'ble Supreme Court in paragraph 12 in Trimukh Maroti Kirkan was of the view that when an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together and the offence has taken place in the dwelling house where the husband also normally resides, it has been consistently held that if the accused does not offer any explanation how the wife received the injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. By referring to its earlier Page 8 of 12 decision in Nika Ram v. State of Himachal Pradesh reported in (1972) 2 SCC 80 the Hon'ble Supreme Court observed that the fact that the accused was alone with his wife in the house when she was murdered and the fact that the relation of the accused with her was strained, the absence of any cogent explanation by the accused would point to his guilt. Again by referring Ganeshlal v. State of Maharashtra reported in (1992) 3 SCC 106 the Hon'ble Supreme Court was of the view that when the case was prosecuted over the murder of his wife which took place inside his house, and the death had occurred in his custody, the accused is under an obligation to give a plausible explanation of the cause of her death in his statement under Section 313 Cr.P.C. A mere denial of the prosecution case and the absence of any explanation, was held to be inconsistent with the innocence of accused and consistent with the hypothesis that he is the prime accused in the commission of the murder of his wife.
19. In the said judgment in Trimukh Maroti Kirkan case the Hon'ble Supreme Court by referring to its decision in State of U.P. v Dr. Ravindra Prakash Mittal, (1992) 3 SCC 300 was of the further view that when the medical evidence discloses that the wife died due to strangulation and although the defence of the husband being that the wife had committed suicide, coupled with the evidence that the husband had ill-treated the wife and their relation was strained, leads to a conclusion that a chain of circumstances was complete and it was the husband who had committed the murder of the wife by strangulation.
20. In the background of the aforesaid law laid down by Hon'ble Supreme Court, when the facts of the present case is examined, the circumstances leading to the death of the deceased wife was that the wife had a quarrel with the accused regarding taking her along to Saudi Page 9 of 12 Arabia and the accused had not obliged the same and he had purchased only one ticket for going back to Saudi Arabia and as a result of which there was the quarrel between them and the further evidence that the hands of the deceased wife was tied to the betel-nut tree and thereafter was strangulated by a flexible wire which resulted in causing death due to asphyxia, the presence of the accused alone in the house at the time of the occurrence, except may be the two minor sisters who were at sleep, leads us to a conclusion that it is for the accused to discharge the burden that the death of the deceased was caused due to reasons other than that is attributed to the accused.
21. In the present case the accused had taken the plea that four persons had entered the house of the accused on the night of the occurrence and had tied the legs of the accused and had made him unconscious and kept him in the varenda and when the accused had gained his consciousness, he found that the deceased wife was tied to the betel-nut tree and she was not in a state of consciousness. In other words the accused by taking such stand in his deposition as defence witness tries the make out a case that the death of his wife was caused by the four persons who had intruded into his house and committed the robbery/dacoity.
22. The aforesaid stand of the accused as made out in his deposition as a defence witness, when examined in the background of his statement under Section 313 of the Cr.P.C. and also the possible likelihood of the four intruders to have caused the death of his wife would go to show that the accused had failed to make-out a case beyond the reasonable doubt that the death of his wife was caused by the aforesaid four persons who had intruded into his house.
23. The evidence of PW 12 Investigating Officer shows that there was no mark of violence on the earth in and around the place of Page 10 of 12 occurrence where the deceased wife was tied to the beetle-nut tree. Although the accused tries to make-out a case there was robbery/ dacoity in his house and the dacoits had departed with certain jewelleries etc. but the Investigating Officer through his evidence reveals that there was no mark of any violence, in the opening of the almiras, suitcases etc. from where the jewelleries were taken away. Further no plausible reason can be found out from the evidence of the accused as to why the four persons who had intruded in the house of the accused had tied both the legs of the accused with a piece of cloth and made him unconscious and kept him in the varenda, while on the other hand the deceased wife was tied-up to the betel-nut tree and was strangulated by her neck with a flexible wire. Although the PW5 Badsha Mia Laskar immediately arrived at the place of occurrence upon hearing the halla, but what he has seen was that the accused was sitting in the varenda and the deceased was tied to the betel-nut tree in an unconscious state, and none of the four persons who had intruded in the house of the accused was seen by the said witness.
24. The aforesaid evidence of the accused in his defence when further examined with respect to the final report of the police in the Silchar P.S. Case No. 193/2002 under Sections 395/396, would go to show that the investigation of the alleged occurrence of robbery/ dacoity in the house of the accused on the day of the occurrence, was rejected by the Investigating Authorities and a final report thereof had been submitted. Further it had been informed that the said final report had attained its finality and it had not been under any challenge by the accused.
25. Considering the matter in its entirety, the plea of the accused that there was a robbery/dacoity in his residence at the day of the Page 11 of 12 occurrence and as a consequent thereof death was caused to his wife, is found to be not acceptable.
26. Accordingly upon application of ratio laid down by the Hon'ble Supreme Court in Trimukh Maroti Kirkan case, the accused-appellant had failed to discharge the burden to prove that the cause of death of his wife was a result of the act of the robbery/dacoity in the residence of the accused. As a consequence of the absence any such acceptable explanation being offered by the accused, this Court is of the view that circumstances of the case indicates that it was the accused who had caused the death of his wife.
27. Accordingly this appeal stands dismissed and the conviction and sentence given by the learned Sessions Judge Silchar Sessions Case No. 12/2006 in Silchar P.S. Case No. 12/2006 under Section 302 is upheld.
JUDGE CHIEF JUSTICE
sds
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