Gauhati High Court
Smt. Hasna Begum vs Md. Islam Khan on 9 April, 2013
Author: Ia Ansari
Bench: I A Ansari, Pk Musahary
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Criminal Revn. (Suo Motu) No. 141 of 2004
Smt. Hasna Begum
- Petitioner.
Versus
Md. Islam Khan
- Respondent.
BEFORE THE HON'BLE MR. JUSTICE I A ANSARI THE HON'BLE MR. JUSTICE PK MUSAHARY Advocates present:
For the Appellant : Ms. K Phukan, Amicus Curiae.
For the Respondent : Mr. D Das, Additional Public Prosecutor, Assam.
Date of Hearing & Judgment : 9th of April, 2013
JUDGMENT AND ORDER
[ oral ]
(IA Ansari, J)
We have heard Ms. K Phukan, learned Amicus Curiae, and Mr. D Das, learned Additional Public Prosecutor, Assam.
2. This revision has been taken suo motu by the High Court against the judgment and order, dated 04-01-2003, passed, in Sessions Case No. 164(S- C)2001, by the learned Additional Sessions Judge No. 2, Sivasagar, acquitting the accused, Md. Islam Khan, of the charge framed against him under Sections 342, 506 and 302 IPC.
3. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under:
Smti Hasina Begum was married to the accused. After her marriage, the accused and the members of his family started torturing Hasina Begum and while she was carrying pregnancy, she was taken to her parental house, at Borhapjan, by the accused and left there. About 3 months thereafter, Smti Hasina Begum gave birth to a female baby and, on 20-02-1998, accused brought back Hasina along with his child; on the plea of providing treatment to Page 2 Hasina, and her child, but the accused, instead of taking his wife and his child to the doctor, brought them to his house. While Hasina on her return to her matrimonial house, started living with her husband, her husband tried to feed common salt to the baby so as to kill her; but Hasina, somehow, saved the child. On the following day, the baby was thrown from the bed by her husband, but the baby survived. On the next day, at about 8.00 a.m., on returning from paddy field, the accused started beating the baby with a stick and, on the same night, he snatched away the baby from Hasina and killed her by throwing her violently on the ground. Having killed his baby, as described hereinbefore, accused threatened his wife not to disclose the matter to anyone. Notwithstanding the threat, so given by her husband, Hasina managed to narrate the incident to those people, who came to their house inquiring about the death of their baby. Thereafter, the accused confined her inside a room and put a lock there; but, somehow, she managed to come out, when the door was opened by a young boy, whose name was Sahajahan. Having come out of the room, where she had been kept confined, Hasina ran away from her husband's house and took shelter in a nearby house belonging to Bogamiah and, on the following day, the inmates of Bogamiah's house took her to the house of her maternal aunt and, thereafter, she informed her parents through a person called Hannan and, then, her parents came to the house of her maternal aunt and they took her to their house.
4. While staying at the house of her husband, Hasina lodged an Ejahar, in writing, making the allegations as mentioned above against her husband. Treating the said Ejahar, as First Information Report (in short, 'FIR'), Borghat Police Station Case No. 45 of 1998, under Sections 498A/342/302/506 IPC, was registered against the accused. During investigation, police disinterred the skeletal remains of the dead-body of the baby from inside a grave in the compound of the house of the accused and inquest was, then, held over the Criminal Revision (suo motu) No. 141 of 2004 Page 2 of 6 Page 3 remains of the dead body of the said baby and the same was also sent for post mortem examination. The cause of death could not be medically determined. However, on completion of investigation, police laid charge-sheet, under Sections 498A/342/302/506 IPC, against the accused.
5. At the trial, when charges, under Sections 342, 302 and 506 IPC were framed against the accused-appellant, he pleaded not guilty thereto.
6. In support of their case, prosecution examined altogether 6 (six) witnesses. The accused was, then, examined under Section 313 Cr.P.C and, in his examination aforementioned, he denied that he had committed the offences, which were alleged to have been committed by him, his case being that his child was ill and it is because of her illness that she died and that upon her death, his neighbours were informed and at the time of her burial, his neighbours were also present. No evidence was adduced by the defence.
7. Having, however, found that the evidence, which the prosecution had adduced, was insufficient to hold the solitary testimony of Hasina Begum(PW3) safe enough to place implicit reliance, learned trial Court took the view that the prosecution had failed to bring home the charges, beyond reasonable doubt against the accused and, therefore, acquitted the accused. It is this finding and the consequential acquittal of the accused, which form the subject-matter of decision in this revision.
8. While considering the present revision, it needs to be noted that the High Court's revisional power to interfere with an order of acquittal is circumscribed. Unless the finding of acquittal is perverse in the sense that the same has been reached against the weight of the evidence on record or unless the finding is without any evidence, or unless the finding is contrary to law in the sense that relevant provisions of law were ignored, while arriving at a decision of acquittal, the High Court will not invoke its revisional jurisdiction to interfere with an order of acquittal. This apart, if a given set of evidence gives rise to two possibilities, one Criminal Revision (suo motu) No. 141 of 2004 Page 3 of 6 Page 4 consistent with the guilt of the accused and the other with his innocence, the High Court will not interfere with the acquittal in exercise of its revisional jurisdiction.
9. Bearing in mind what have been indicated above, what needs to be noted is that neither from the evidence of PW3 nor from the evidence of any other witnesses, it is discernible as to when PW3 reached her parental house and as to why there was delay in lodging of the FIR, though the alleged occurrence had taken place on and around 23-04-1998 and the FIR was lodged as late as on 26-06-1998. Though the accused was alleged to have subjected PW3 to torture since the time of her marriage, no supporting or corroborating evidence was adduced by the prosecution. Not even the parents of PW3 came forward to give their evidence in support of their daughter's allegation that she had been subjected to cruelty by her husband.
10. We have already pointed out above that the cause of death of the said child remained unknown and the evidence on record shows that PW1 has clearly deposed that he had attended Zanaja (i.e., burial possession) and the burial of the said deceased baby and this witness (PW1) was also present at the time when the mortal remains of the said baby were disinterred by the police. This apart, it is in the evidence of PW2 that the accused had informed him about 2/3 days before the death of his baby that she was ailing. Neither PW1 nor PW2 gave any such evidence that PW3 had ever made any complaint to them or that she was tortured or subjected to cruelty.
11. Coupled with the above, it is also pertinent to note that though PW3 has claimed that she reported about the occurrence to those neighbours, who had come to the house of the accused, after the death of their baby, no such neighbor has been examined by the prosecution and there is no evidence on record to support the claim of PW3 that she had reported to any of her neighbours that her baby had been killed by her husband. It is significant, in this Criminal Revision (suo motu) No. 141 of 2004 Page 4 of 6 Page 5 regard, to note that it is not her case that while she had stayed at the house of her husband, before the birth of the baby or thereafter, her movements were restricted or that her husband had not been permiting her to visit his neighbours or speak to them. Her allegation is that she was kept confined only after the baby died and that, too, after she had already reported to some of her neighbours, however, the baby had died. In this regard too, the learned trial Court has noted that Sahajahan, who was claimed to have opened the door, or Bogamiya, who was claimed to have given shelter, when PW3 escaped from her matrimonial house, had not examined as witnesses. For their non- examination, no explanation was offered by the prosecution and no explanation was discernible from the evidence on record. In the absence of any explanation, far less plausible explanation, the omission to examine these witnesses, the learned trial Court was wholly justified in drawing adverse inference against the prosecution, the inference being that had these witnesses been examined, their evidence would not have supported the sole testimony of PW3 and that was the reason why their evidence had been suppressed.
12. As far as the doctor (PW6) is concerned, his evidence clearly shows that he did not find any fracture on any part of the body of the said child.
13. In the face of the evidence, which we have discussed above, it cannot be said that the learned trial Court acquitted the accused entirely against the weight of the evidence on record. The learned trial Court, we notice, assigned cogent reasons for holding the evidence of PW3 as unsafe to place reliance upon. Apart from the fact that PW3 had not received any corroboration, credible or otherwise, from the evidence of any other witnesses, no explanation was offered by her for belatedly lodging the FIR. At any rate, therefore, the acquittal of the accused cannot be said to be against the evidence on record or the law relevant thereto.
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14. Because of what have been discussed and pointed out above, we do not find that the present one is a fit case, where this Court shall interfere with the acquittal of the accused and send the case on remand to the learned trial Court.
15. In the result and for the reasons discussed above, we hereby maintain the acquittal of the accused and close this revision.
16. Let the Amicus Curiae be paid a sum of Rs. 5,000/- for her valuable assistance rendered to this Court.
17. Send back the LCR with a copy of this judgment and order.
18. With the above observations and directions, this appeal stands disposed of.
JUDGE JUDGE
Paul
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