Judgment · High Court · 2012

learned counsel for the respondent.

#2. Learned counsel for the appellant State submitted that the learned trial court failed to appreciate the evidence of the prosecution witnesses, who could establish beyond reasonable doubt that the accused was in the company of his wi fe immediately before her death. Learned counsel, referring to the evidence of w itnesses and more particularly the evidence of PW1, 3 & 5, submitted that in the evening, prior to the date of occurrence, the accused himself had escorted his wife from the residence of his in-laws to his own house. But instead of reaching matrimonial home with her husband, her dead body was found next day near Singim ari field. In reply to the above submission, learned counsel for the accused-respon 3. dent, has vehemently submitted that the accused could establish by adducing defe nce evidence that he had never visited the residence of his in-laws, prior to th e date of occurrence.

#4. In order to appreciate the arguments advanced by learned counsel for the parties, it would be in fitness of things to narrate herein below the sequence of events leading to filing of this appeal by the State appellant. On 5.2.1999, Sajahan Ali Sarkar(PW2) lodged an ejahar before the officer -in-charge of Gauripur police station, stating that around 7 O’clock in the even ing, his sister Sahena Bibi was taken away by her husband accused Md Gaji Rahman from his house, and on the following morning, people saw the dead body of Sahen a in the Singimari field, on western side of his house. On hearing screaming and commotion raised by the people of the locality, PW2 went near the dead body and could identify it to be of his sister Sahena Bibi. PW2 suspected that it is her husband that had killed his sister.

#5. On receipt of the ejahar, to the effect aforesaid, a case was registered and an investigation was set in motion. On completion thereof, charge-sheet und er Section 302 was submitted against the accused-respondent.

#6. On committal of the case for trial, the learned Sessions Judge framed ch arge against the accused-respondent under Section 302 IPC. When the charge was r ead over and explained to the accused, he pleaded not guilty and claimed to be t ried.

#7. During the course of hearing, the prosecution examined as many as ten wi tnesses to bring home the charge brought against the accused. On completion of t he recording of the prosecution evidence, defence statement of the accused was r ecorded in terms of the provision of Section 313 Cr.P.C, where the stand of the accused was of total denial. The accused examined two witnesses in defence, to e stablish his stand. On conclusion of the hearing, the learned Sessions Judge acq uitted the accused-respondent, giving rise to this appeal by the State.

#8. PW1, Rabial Sk, who was a local businessman (owner of a pan shop and a t ea stall), had been declared hostile by the prosecution. He denied having any kn owledge about the occurrence.

#9. PW2, Sahjahan Ali Sarkar is the brother of the victim. He deposed that 9 months before her fateful death, her sister was given in marriage with the accu sed-respondent. Around ten days ago prior to her death, the accused had beaten h er up and on being fearful of further assaults she came to his house. According to PW2, on 4.2.99, the accused also came to the house of PW2 to take his wife i. e. the victim and after having had dinner, the couple left at around 7 PM. Accor ding to this witness, on the following morning, he heard about the murder of his sister near Singimari field; he, along with Sah Alam Sarkar, Nurul Islam Sarkar , and Abdul Kader Sarkar rushed to the place of occurrence and found the dead bo dy of his sister with cut injuries on the neck and her waist was bare-clothed. I mmediately thereafter, the witness detoured the house of the accused and on find ing the doors of the house of the accused under lock and key, they went to Gauri pur police station and informed about the occurrence and then lodged an ejahar. On cross-examination, the witness denied the suggestion that he had not stated before the police that the house of the accused was found under lock and key, when he went to the house on seeing the dead body of his sister. PW-2 admit ted that the FIR was filed one day after the occurrence.

#10. PW3, Saha Alam Sarkar is the brother of the victim. He deposed that her sister got married with the accused. About 10 days prior to the occurrence, the accused drove away his sister from the matrimonial home by assaulting her. His s ister came to their house and thereafter on 4.2.99, the accused too came to thei r house to take back his wife and demanded that he be paid money within one mont h and left the house at around 7 PM with the victim, and on the following mornin g, they heard a hue and cry vibrating from the side of the Singimari field and o n reaching there, they saw the dead body of his sister lying on the field with c ut injuries on the neck. On reaching the house of the accused, they found the ho use under lock and key. Very interestingly PW-2 did not refer anything regarding demand made by the accu sed for payment of dowry in cash. However, PW-3, another brother stated that the accused also demanded payment of cash amount within a month.

#11. lying on a brick kiln field, but could not say who had killed her. PW4, Mayezuddin Sarkar deposed that he saw the dead body of Sahena Bibi

#12. PW5, Md Nur Islam Sarkar is the cousin brother of the deceased and resid es in the same campus. According to the witness, the victim came to her paternal home 7 days back and on 4.2.99, she was taken away by the accused. On the follo wing day, on hearing of a murder in the nearby field, he rushed to the place of occurrence and saw the dead body of her cousin sister Sahena Bibi.

#13. PW6, Abdul Alim Sarkar deposed that in the morning of 4.2.99, on hearing news about a murder in the field near his house, he rushed to the place of occu rrence and saw the dead body of Sahena Bibi, lying with cut injury and also saw a dao beside her.

#14. PW7, Abdul Kader Sarkar, is the cousin brother of the deceased Sahena Bi bi. He deposed that Sahena got married with the accused eight months back and si nce then, the accused had been torturing her. The victim not being able to bear the brunt of physical and mental torture meted out by the accused, she came to h er paternal home a few days back and after about three days, the accused came do wn to take back his wife and on the following morning, on hearing news about a m urder taking place nearby his house, he rushed to the place of occurrence and sa w the dead body of Sahena lying on a field with cut injury on the neck.

#15. PW8, Md Hakimuddin Sarkar deposed that on 4.2.99, on hearing news of mur der having taken place in the field, near his house he rushed to the place of oc currence and saw the dead body of Sahena Bibi.

#16. PW9, Dr Mukul Ch Barman, who performed a most-mortem on the dead body of Sahena Bibi, found the following injuries: (cid:28)Rigor mortis present. Cadavric spasm present in both hands. Mud and sand found adherent all over the body. One cut throat wound foun d involved in the whole neck anteriorly above the thyroid cartilage of the neck. Margin of the wound are overted and the wound is more deep on the right side than the left. The trachea and great vessels of the neck and the vertebra o f the neck is found cut. The ages of wound are clean. No other injury is found. Cut throat wound of the neck is antemortem in nature (cid:29). In the opinion of the medical officer, the death was caused due to shock and hem orrhage as a result of the injuries mentioned. PW10, Sachindra Ch Nath deposed that he was posted as officer-i 17. n-charge of Gauripur police station, only after completion of the investigation of the case. According to PW-10, his predecessor-in-office appointed Sri Haren C h Deka, sub-inspector of police, to investigate into the case. During the course of investigation, the investigating officer visited the place of occurrence, al ong with one Executive Magistrate, recorded the statement of the witnesses, perf ormed an inquest on the dead body, prepared a sketch map, seized the dao(weapon of assault), and sent the dead body to the Dhubri Civil Hospital, for a post-mor tem examination. Awkwardly, the Investigating Officer who had recorded the state ment of the witnesses was not examined as a witness. Upon scrutiny of the evidence of PW10, the I.O., it appears that th e ’Dao’ seized by the police at the place of occurrence was not sent for examina tion by scientific expert to find out if finger prints of the accused was availa ble on it or not. Unfortunately, this vital clue was given a go bye by the I. O . Thus prosecution failed to prove the seized ’dao’ was used as weapon of offenc e by the accused.

#18. To establish the defence stand, the defence side examined two w itnesses. DW1, Saukat Ali Sarkar, alias Noksed, next door neighbour of the decea sed deposed that the accused and the deceased got married 8-9 months back acco rding to the Muslim rites and rituals. According to this witness, Sahena had gon e to her parental home a few days ago. On the afternoon of 4.2.99, DW-1 heard th at Sahena is not in her paternal home. The villagers had been searching for her where DW-2 also joined them in the search, but could not find headway. On the fo llowing morning, DW-1 saw dead body of Sahena was lying near a canal of Singimar i pathar. DW-2 categorically stated that neither he had seen the accused in the house of PW-2 on that day, nor any body told him that the accused took away Sahe na with him on the evening of 4.2.1999.

#19. DW2, Abul Hussain deposed that he is one of the villagers. According to him, the deceased and the accused were married, and there was neither any de mand of dowry from the side of the accused, nor any quarrel took place between the couple. DW-2 deposed that on 4.2.99, on hearing a hulla (commotion) he went to the residence of Sahena and was told that Sahena had been missing, and despi te a search being carried out by villagers, she could not be traced out and on t he following morning, he heard the news of Shena lying near a drain at Singimari pathar the dead body of Sahena. The witness deposed that he never heard about a ny torture upon Sahena by the accused. DW-2 confirmed that no body told him abou t the presence of the accused on 4.2.1999 in the house of Sahajahan.

#20. The defence evidence adduced on behalf of accused categorically state d that the deceased went missing on the evening of 4.02.99 and she was searched by the defence witnesses as well as the local villagers in the evening of 4.2.19 99. If that be the case, accused taking away his wife from the residence of the first-informant on 4.2.1999 appears to be doubtful.

#21. Learned counsel for the appellant pointed out that from the ev idence of the prosecution witnesses PW2, PW3 and PW5, it transpires that the acc used had visited the residence of the first-informant on 4.2.1999 i.e. on the da y prior to finding of the dead body, and the deceased was escorted by the accu sed to his residence, in the evening of 4.2.1999, from the residence of the firs t-informant. Learned counsel for the appellant submitted that it clearly transpi res that the deceased was in the company of the accused, when she was last seen alive.

#22. While appreciating the evidence of defence witnesses, equal re spect and equal treatment is required to be given as the prosecution witnesses a nd the defence witnesses cannot be termed as tainted ones When evidence is adduc ed by the defence to prove a fact the credibility and trust worthiness of such d efence evidence, has to be attributed at par with the prosecution witnesses. See 2000 SCC (Crl) 350 (State of Haryana Vs. Ram Singh). From the evidence of DW1 it transpires that on the evening of 4.2. 99 the deceas ed Sahena was missing. D.W.2 visited the house of Shajahan (P.W.2), hearing th e news of missing of the deceased Sahena, on 4.2.1999. According to D.W.2 local people also assembled at the place of occurrence but could not find as to where she had gone. According to D.W.2, nobody in the house Shajahan (P.W.2) told him at that time that the deceased was taken away by the accused, on that evening of 4.2.1999. DW2, corroborated D.W.1, in material particulars regarding missing of the deceased Sahena in the evening of 4.02.99 effort made by the villagers to s earch on the day and time, at which the prosecution witnesses have alleged that the accused had taken away deceased Sahena, to his residence. 23. Both DW1 & DW2, who are neighbours of the deceased Sahena did not have an y inimical relationship either with the accused or with the deceased. In the cr oss- examination of the D.W1 and 2 the prosecution could not elicit anything sub stantial to dislodge the testimony of the defence witness. They were specific ab out missing of Sahena from the evening of 4.02.99. If victim Sahena was missing on the evening of 4.02.99, the theory of last seen together projected by the pro secution is doubtful. In such a situation it is required to be evaluated and scr utinized scrupulously, whether prosecution version or the defence is correct. Learned counsel for the respondent accused submitted that the witnesse 24. s who are very close relation of Sahena only alleged that the accused had take n Sahena, on the evening of 04.02.99 and independent witnesses were not adduce d to prove such fact. 25. Referring to the cross-examination of PW2, 3, 5 & 7, learned counsel for the accused-respondent submitted that least as regards the taking away of the d eceased from the house of the first-informant by the accused, in the evening, pr ior to her death was challenged by the defence. Learned counsel for the accused- respondent has further pointed out that the theory of last seen together is base d on the evidence of close relations of the deceased and no independent witnesse s, though they were available, have been examined and, therefore, the court sh ould be very invidious in examining the evidence of the relatives and it should be done with great care. 26. No independent witness or neighboring witnesses was examined by t he prosecution to vouchsafe the fact of last seen together, anticipated by the p rosecution. Since the prosecution case is based solely on circumstantial evidenc e, the circumstances must be of such nature, which is capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is char ged or in other words the circumstances relied upon must clinch the issue of gui lt. The fact of having seen the deceased together for the last time, in the comp any of accused has to be proved beyond reasonable doubt. However, in support of taking away of the deceased from the residence of the first-informant, by the a ccused two stories are available . One story supports the prosecution case of th e deceased being seen last together on 4.2.99, in the company of the accused a nd the other one reflects that deceased was not escorted by the accused on the fateful evening, rather victim Sahena was missing from her residence. The circu mstances from which the conclusion of guilt could be drawn were not fully establ ished and the chain of evidence was not complete to rope in the appellant for th e offence of commission of murder of the deceased. 27. In the instant case, having precisely discussed and examined the f actual evidence on record, we find that circumstances from which the decision of guilt is to be drawn are not fully proved to complete the chain of evidence. We also do not find cogent and substantive circumstantial evidence to convince us to disturb the impugned judgment. In the instant case, the various links in the chain of evidence relied upon by the prosecution have not been satisfactorily pr oved and the circumstances did not point to the guilt of the accused with reason able definiteness. More so, when two views are possible, the view which supports the defence case has to be accepted. In our view, the set of prosecution eviden ce cannot be said to be sufficient and acceptable to demonstrate circumstantia l evidence to show that the accused escorted his wife a day prior to the occurre nce. 29. On a careful analysis of the entire gamut of facts after giving a thoughtful consideration in the matter, we find that the learned trial Court rig htly observed that the prosecution witnesses do not inspire confidence and the p rosecution story regarding seeing the deceased in the company of the accused for the last time together prior to her death, is also doubtful. Therefore, we are of the considered view that the judgment and order of the learned trial Court do not merit interference.

#28. Consequently, the appeal stands dismissed. Send back the L.C.R.