High Court
Case Details
Crl.A. 127/2009 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA HON’BLE MR. JUSTICE L.S JAMIR (JAMIR, J) This Criminal Appeal is directed against the judgment dated 19.06.2009, 1. passed by the learned Additional Sessions Judge (FTC), Barpeta, Assam in Session s Case No. 103 of 2006, whereby the accused Samsul Mia (Haque) was directed to u ndergo rigorous imprisonment for six months under Section 498 (A) IPC and fine o f Rs. 1,000/- and in default of payment of fine, further period of imprisonment for one month and rigorous imprisonment for life under Section 302 IPC and fine of Rs. 2,000/- and in default convict is directed to undergo imprisonment for an other three months. The accused Tota Mia was directed to undergo rigorous imprisonment for l ife and fine of Rs. 2,000/- and in default convict is directed to undergo rigoro us imprisonment for another three months. 2. The case of the prosecution is that the complainant had lodged FIR befor e the OC, Barpeta Police Station on 27.10.2004, alleging that accused Sumsul Mia , married his daughter and after marriage his daughter went to the house of the accused person. He also stated that after the marriage the accused Sumsul Mia st arted torturing his daughter, both physically and mentally on the plea of dowry and the other accused persons also helped him. In the FIR lodged, the complainan t stated that on 25.10.2004 in the early morning, he had gone to the House of ac cused person and found that the dead body of his daughter was hanging by a rope from a Jamun tree present in the courtyard. Upon seeing the incident, he raised hue and cry and many people gathered there. On seeing the people gathering, the accused Samsul’s family members fled away from their house. In the said FIR, he further stated that upon hearing about the occurrence, his family members too ca me to Samsul’s house. On 26.10.2004, in the morning, they informed Barpeta thana about the incident and accordingly the thana registered U/D Case No. 69 of 2004 and at about 1 p.m. police took away the dead body of his daughter. Complainan t and his family members also saw many injuries in her body. He, therefore, stat ed that they have learnt from a reliable source that the accused who were named in the FIR had killed his daughter and kept her body hanging from the tree. In t he FIR, the complainant mentioned the names of the persons who committed the off ence as given below: 1. Samsul Mian (Haque) S/O Jahuruddin Miyan. 2. Tota Miyan S/o Jaharruddini Miyan. 3. Samad Miyan S/o Jaharruddini Miyan. 4. Akshed Ali S/o Jaharruddini Miyan. 5. Marzina Begum, Samsul Miyan’s first wife. 6. Kamala Begum W/o Tota Mia. 3. On receipt of the FIR, police registered Barpeta Police Station Case No. 545 of 2004 under Section 304 (B) IPC. On completion of investigation, the Inve stigating Officer submitted the charge-sheet against the accused persons under S ection 143/ 304(B) IPC. The learned Trial Court by order dated 10.08.2006 had fr amed charge against the accused persons under Section 304 (B) /143 IPC.
Legal Reasoning
On 31.05.2008, the learned Trial Court after going through the evidences altered the charges under Sections 498(A)/302/34 IPC and thereafter the trial b egan. 4. The prosecution examined 16 witnesses including the Medical Officer and the Investigating Officer. The accused persons were examined under Section 313 C r.P.C. The defence side also examined one witness. After consideration of all t he deposition of the witnesses and also entire aspect and evidence on record, th e learned Trial Court had passed the aforesaid conviction. While passing the jud gment dated 19.06.2009, the learned Trial Court acquitted the accused persons, n amely, Samsul Mia, Akshed Ali, Marijina Begum from liability of this case and se t them at liberty. It is also relevant to mention that one Kamala Begum wife of Tota Mian though named in the FIR, she was not send up for trial. 5. eposition of PWs as well as the lone DW. In order to appreciate the present case it is relevant to discuss the d 6. re the eye witness to the occurrence of the alleged crime. We would like to first discuss the deposition of PWs 1, 4, 5 & 11, who a 7. P.W.1, the informant in his deposition had stated that he had married of his daughter Anowara Begum to the accused Samsul Mia and out of that marriage t hey have a daughter. He stated that the accused Samsul has his first wife and th e accused had married his daughter later. Their relation had gone well for about 6 months/1 year. Thereafter beating started. The accused continued to beat her in that manner and the occurrence took place three months after the baby was bor n. He also deposed that one day finding no way out Anowara jumped in to water, w hich was witnessed by the complainant from his house. When Anowara fell into the water the accused Samsul beat her there too. When the P.W.1/ informant asked hi m not to beat his daughter, the accused Tota and Samsul rushed at him taking ’fa la’ and ’hana’. When they rushed at him, he raised the hue and cry and the neigh bouring people came and took the accused Tota and Samsul away. The complainant w ent back home and late that night sent his niece Subatan to enquire about his da ughter Anowara. Subatan found his daughter in injured state and informed him acc ordingly. It is further submitted by P.W. 1 that at the dead of night, the next day, when he got up from sleep he heard accused calling his brother. P.W. 1 then came out from his house and asked the accused Tota Mian as to what happened and also told him that he heard the three months old baby crying. When the accused Tota Mian said nothing, P.W. 1 went forward and saw accused Tota tying his daugh ter to a tree and accused Samsul and his wife accused Marjina held Anowara and r aised her up. It is his deposition that he saw the incident with his own eyes. H e further, stated that his son Chand Mian had accompanied him and he also saw th e incident. Then Chand Mian and P.W. 1 raised hue and cry and at that time his t wo sons Tota and Halim Mian came.He also stated that tying his daughter to the t ree the accused persons fled away. Half an hour later, the dead body fell down a s the rope had given way. Thereafter, he went to the thana and lodged the FIR. In cross-examination, the informant stated that the Gaonburah of the village had come to the place of occurrence and had seen the incident and that he had also told him about the occurrence. He also stated that he had no knowledge about the night incident and he learnt about the incident when in the morning accused Sam sul had called accused Tota. He also stated that he had not seen the accused per son in group. It is further stated by P.W.1 in his cross-examination that before arrival of the Gaonburah and the police the dead body had fallen down after the rope had given way. He also stated that the police seized a 8/10 cubits long ro pe. 8. P.W. 4 is the brother of the deceased and son of the informant. In his d eposition, P.W. 4 stated that the house of accused Samsul is about 160 cubits aw ay from his house. On the previous day of the occurrence accused Samsul had beat en up his sister. On receipt of the information he along with his father and bro ther Tota, went to the house of the accused, but the accused did not allow them to enter his house. On that day at about 5 a.m. accused Samsul called his brothe r Tota Mian. Then the accused Tota went to his brother’s house crossing the wate r. Then they again went to accused Samsul house, but Samsul did not allow them t o enter into his house. In his deposition he stated that they saw the accused Sa msul and his wife lifting up his sister Anowara and accused Tota tying her to a tree. Then they kept her hanging to a Jombulosa tree. They raised a hue and cry after seeing the incident and the neighbouring people came. In his deposition P. W.4 stated that his elder brother Tota Miyan and his father Billal/ informant sa w the incident. Thereafter, he along with his brother Hatem Miyan went to the th ana and informed about the incident. At the thana, they learnt that the accused had also filed a complaint. In cross-examination P.W.4 stated that at that time of occurrence there was a li ttle darkness. He also denied that the accused Samsul’s first wife is suffering from paralysis. 9. P.W.5 is also the brother of the deceased and son of the informant. In h is deposition, he stated that Anowara is his sister and that on the day of her d eath, he was at home. He stated that on the prior day of the occurrence the accu sed Samsul had beated his sister. But they were not allowed to go even if they t ried. They sent Chand Miyan and he accordingly gave them the information that th e accused Samsul had beaten his sister. Then they sent Subaton, who went to the accused persons house and gave them the information that his sister had been bea ten up but she did not tell them as to why his sister had been beaten. P.W. 5 al so deposed that on that day, before dawn, his father raised a commotion. He got up and went ahead and from the distance of 1 ‰ ’Rachi’ (120 Cubits), they saw ac cused Samsul and his wife hold his sister and the accused Tota Miyan tied his si ster to a tree after climbing on it. They cried and raised hue and cry and the n eighbouring people came. Half an hour later the dead body fell down tearing the rope. Police came and took away the dead body. 10. P.W.11 is the sister-in-law of the deceased and in her deposition stated that the accused Samsul had his first wife and her name is Marigina. The follow ing morning upon hearing the hue and cry she went and saw accused Samsul tying A nowara and Tota Miya raising her upon a tree. She also stated that the deceased had already died when she was being raised to the tree. In cross-examination P.W.9 stated that the accused Margina is a Paralytic patien t and since she remained unwell all the time Samsul married Anowara. 11. 12. The evidence of the other PW’s are also discussed herein below:- P.W. 2 was declared hostile by the prosecution. 13. P.W.3 is a co-villager. In his deposition he stated that he hear d hue and cry from the accused house and went there and found the deceased hangi ng from a tree. He also deposed that he did not find accused Samsul at home. In cross-examination of P.W.3, he stated that the first wife of the accused tol d that the deceased had hanged herself and he did not find any of the accused at home. He also stated that he had met the informant as well as his sons at the p lace of occurrence and the time was 5 a.m. 14. P.W.6 is Smti. Subaton Nessa. She stated in her deposition that she hear d a commotion on the road and coming out, she saw Anowara hanging from tree. She also stated that on the previous day of the occurrence, Anowara’s father Billal had sent her to accused Samsul’s house. Going there she saw Anowara standing at the kitchen taking her daughter and she cried in front of her and told her that her husband Samsul had beaten her. She further deposed that after coming back s he told Billal about the deceased’s crying and being beaten by her husband Samsu l. P.W.6 further deposed that the dead body itself fell down from tree tearing t he rope. In cross-examination, P.W.6 deposed that there had been a little darkne ss when she heard the commotion. She also stated that her house is 2 K.M. away f rom accused Samsul’s house. In re-cross-examination P.W.6 stated that she has no knowledge of Anowa ra getting beaten up. 15. P.W.7 is the doctor, who conducted the post mortem examination o n the body of the decased. In his deposition he stated that he had conducted the post-mortem on the dead body of the deceased who was aged about 19 years and wi fe of the accused, at Barpeta Civil Hospital on 27.10.2004 and found the followi ng injuries and marks:- (cid:28)Average built, Rigor Mortis: absent, face swollen, Tongue, Protruded, b loody froth from mouth and nostril and bleeding from ear and nose, eyes were ope n. Bruise anterior in both thigh, bruise over breast and abdomen (at lumber regi on), 2% burnt right eye area, two round of transverse ligature mark completely e ncircling the middle of the neck. Base in reddish. Abrasion of the edges and bru ising of neck muscle present. Sub cutenous tissues under the neck ecchymosed. Opinion: In my opinion death is due to asphyxia as a result of strangula tion. Ext.1 is my P.M. report issued by me and Ext. 1(1) is my signature. (cid:29) In his cross-examination P.W.7 stated that the mark of the injury found might be caused by hanging. The strangulation is by tying of rope and pressure on the ne ck by hand. He found injuries below the skin of the deceased and those were ante mortem. The injury marks slightly may be caused by the hands of deceased at the time of hanging. 16. P.W.8 in her deposition stated that the deceased’s father had se nt him to the house of the accused Dhana Miya (other name of Samsul Miya) becaus e the deceased’s parent’s family members were not allowed to go there. On going to the deceased’s house, he found that the deceased’s waist had been broken and that she had showed her the injuries and said that her husband Dhana Miya had be aten her up. When she came to know about the incident she went there and when th e deceased wearings were removed by the police, she saw burn injuries in her han ds and belly. On her re-cross-examination she deposed that on arrival at the pla ce of occurrence, she did not see Chand Miyan, Halim and Tota Miya there. She al so stated that she has no knowledge of the deceased getting beaten up. P.W.9 is also the brother of deceased and son of the informant. He also 17. deposed that at the dead of night they heard the cries of Anowara’s baby. His fa ther inquired why the baby was crying and when he did not receive any response, P.W.9 swam across the water and went to deceased house. He deposed that he took the baby on his lap and going behind the house found Anowara hanging from a tree . He also stated that the accused Samsul and Tota left by boat. He further state d that the accused persons had kept his sister hanging from the tree after killi ng and he saw foot prints on the tree. In cross-examination P.W.9 stated that hi s father had woken him up at night and there had been none at Samsul’s house whe n he had gone there. He also stated that the Sun had risen half an hour after th ey took ’Roja’ food. 18. PW- 10 is the son of the village Headman. He stated that accused Dhana M iya Alilas Samsul had gone to call his father. Since his father had become inact ive, he went to Samsul’s house. There he saw Samsul’s wife hanging by the neck f rom a Jambolanum tree inside Samsul’s compound. He then asked them to inform th e police. He stated that later at 10 a.m, when he went to their house again, he found Samsul’s wife lying on the ground. The police came and took away the dead body. In cross-examination, he stated that Samsul had given him the informatio n at 6.30 a.m. He had not seen the girl’s family member at home and he had seen them on the road. He stated that he has heard that Samsul’s wife Marjina has bee n suffering from paralysis. 19. PW- 12 is a petition writer. He stated that on 27.10.2004 the complainan t came to his house and told him to write an ejahar. He stated that he wrote the same as per the statement of the complainant. In cross-examination, he stated that he does not know the complainant pe rsonally and he also knew nothing about the occurrence personally 20. P.W. 13 is the Investigating Officer of the case. In his deposition he s tated that on 26.10.2004, an ejahar was lodged, mentioning that the deceased had committed suicide and in this connection a U.D. Case had been registered, being U/D Case No. 69 of 2004 dated 26.10.2004 and on 26.10.2004 he visited the place of occurrence, held inquest over the dead body and sent it for post-mortem exam ination to the Civil hospital. He also deposed that when an ejahar was lodged on 27.10.2004, he recorded the statement of the informant Bilal Miyan, Md. Chand M iyan and Halem Miyan at the police station. He deposed that he could not visit t he place of occurrence on 7.10.2004 i.e. the day of filing of the ejahar because the informant informed him that they would bury the dead body on that day. He a lso stated that he recorded the statement of P.W.12 who stated that on the previ ous day of the occurrence he had sent Subattan Nessa to the house of the accused to enquire about the deceased and that Subatan after returning had told him tha t Samsul had beaten up his wife. P.W.12 also stated before P.W.13, i.e. the I.O. that on that night of 24.10.2002, he had heard Anowara’s cry when the accused h ad once again beaten her and that he suspected that the accused Samsul and his b rother had kept the deceased hanging from a tree after killing her. In his cross-examination P.W.13 stated that the informant stated before him that the deceased had been found hanging by the neck from a tree. P.W.5 had also sta ted before him that he suspected that accused Samsul and his brothers had kept h is sister hanging from a tree after killing her. P.W.13 in his cross-examinatio n, further, stated that P.W.9 did not state before him that he had seen the occu rrence after swimming across the water and that accused Samsul and Tota had left by boat after hanging his sister by the neck from the tree. He also stated that P.W.1 did not state before him that Subaton had seen the occurrence the previou s day; that he had come with his son and the dead body had fallen down as the ro pe had snapped and that Meharuddin had come. 21. P.W.14 is the Investigating Officer, who registered the U.D. Case No. 69 of 2004. In his deposition he stated that he found the female dead body lying u nder a Jambolanum Tree. A rope was found tied round the neck and another piece r ound a branch of the tree. He seized both the pieces of rope which were found at tached to the neck and the tree respectively. P.W.15 is the relative of the deceased. He deposed that she saw the woma 22. n hanging by the neck from a tree. He had stated that police came and seized the rope. He also deposed that he saw the dead body hanging by the neck from a tree . Ongoing there in the morning he had not seen the accused Samsul at home and he further, stated that at night the accused was fishing near his house. He had stated in cross-examination that accused Margina was suffering from paral ysis and she did not move properly. 23. P.W.16, the circle officer of Barpeta Revenue, Circle held the i nquest on the dead body in connection with U.D. Case No. 69 of 2004 and found as follows:- (cid:28)1. Name of deceased Anowara Begum. W/O Samsul Mia, age:19 years of vill age Keotpara. 2. U.D. Case No. Barpeta 69 of 2004 dated 26.10.2004. During inquest the following findings are made:- i) Inquest done at police station compound, Barpeta. ii) Died on 26.10.2004. Dead body found by police at Keotpara in the house of her hus band Samsul Mia along with a plastic rope below a Jam tree. iii) Face is found to be swollen with bleeding from eyes, nose, ear and mouth. on). iv) Head scalp. No injury seen v) Marks of partial burnt injury found on right hand (upper regi vi) Shoulder-No injury seen. vii) There are black bruise marks of physical torture onleft bre st both left and right legs (knee portion) and stomach region. viii) There is no excreta or discharge from buttock and vagina. ix) Suspected marks of strangulation. I have observed that the d eceased have been physically tortured as there are bruise marks on the body and done to death. It is a suspected case of murder. (cid:29) 24. The defence also examined one witness being D.W.1. He is a co-villager o f the accused and in his deposition he has stated that his house is about 4/5 bi ghas apart from the accused Samsul’s. He also stated that he had taken (lease o f ) a beel and the accused Samsul went for fishing in the ’beel’ at night on the day of occurrence. At the dead of night, when there was darkness still, they he ard a commotion. Upon hearing the commotion when they went there they saw Anowar a hanging from a tree. He also stated that the accused Samsul came later. He, fu rther, stated that he asked the accused Samsul to inform the Gaonburah and later , the deceased’s body fell down from the tree. In the cross-examination the DW- 1 has stated that on the day of occurre nce he observed (cid:28)Roja (cid:29) as occurrence took place in the month of (cid:28)Romjan (cid:29). He was not aware whether the accused Samsul had observed (cid:28)Roja (cid:29) on that day. On the da y of occurrence he had not gone for fishing, nor he was fishing with Samsul. Bec ause of Roja DW- 1 had taken his food at home that night. Whether Samsul had tak en rice at that time he did not know. All the accused were also examined under Section 313 Cr. P.C.. Accused M 25. argina during her cross-examination under Section 313 Cr.P.C stated that she has been suffering from paralysis and denied the other questions put to her. Accused Samsul during his examination under Section 313 Cr.P.C stated t 26 hat he had not beaten the deceased and that it is fact that she was hanging from a tree. He also stated that at the time of occurrence he was not at home and he had gone for fishing, however, he could not substantiate the plea of alibi, exc ept producing DW 1, who has also failed to convince the Court that the accused w as not present on the day of occurrence as he had gone for fishing. 27. ied the questions put to them. The other accused during examination under Section 313 Cr.P.C. also den 28.
Legal Reasoning
Heard Mr. B. M. Choudhury, learned counsel for appellants as well as Mr. D. Das, Additional Public Prosecutor, Assam. 29. The learned counsel appearing for the accused appellants has argued that the prosecution had filed two FIRs. Firstly, by the son of the informant on 26. 10.2004, stating that his sister has committed suicide and again on 27.10.2004, the informant, the father of the deceased, had filed another FIR, blaming the ac cused, this shows that there was an afterthought while the second FIR was filed. He also argued that from the examination of PWs, it is seen that there is no st rong corroborating statements pointing the fingers at the accused to show that t hey had killed the deceased and thereafter, hanged her from the Jamun tree. It i s also the submission of the learned counsel for the accused that on the perusal of the medical report and the Inquest report which clearly show that they had n ot been able to come to a conclusion whereby the accused can be charged under Se ction 302 IPC. He prays that the accused may be acquitted. We have also heard Mr. D. Das, learned Additional Public Prosecutor, Ass 30. am, who has argued that the medical report clearly shows two round of transverse ligature mark completely encircling the middle of the neck. It is therefore his submission that in a case of suicide, the deceased would suffer only one ligatu re. The presence of two round of transverse ligature clearly shows that the dece ased was murdered by the accused before hanging from the Jamun Tree. He also sub mits that the prosecution witness has proved beyond reasonable doubt that the de ceased was first murdered before being hanged from a Jamun Tree. It is his furth er submission that there is no reason to dis-believe the deposition of the PWs v iz. PW 1, 4, 5, 9 and 11 regarding causing of injury and strangulation. Under the circumstances he submits that the judgment of the learned Trial Court dated 19.06.2009 may not be interfered with. 31. We have given our anxious consideration to the rival submission of both the parties. We have considered the deposition of PWs, the sole DW as well as th e medical report and the Inquest report and also the deposition of both the Inve stigating Officers. 32. From the deposition of PW 1, 4 & 5, it is seen that they saw the accused Tota tying his daughter to a tree and accused Samsul and his first wife accused Marjina held Anowara and raised her up. The said three PWs are the father and b rothers of the deceased. Another brother of the deceased, PW 9 found the decease d hanging from the tree and he stated that the accused persons had kept their si ster hanging from the tree and he also saw foot prints under the tree. The defen ce has failed to demolish this vital piece of evidence adduced by the eye witnes ses. There is strong corroboration on the evidence of the eye witness viz. PW- 1 , 4, 5 and 11. The DW- 1 has also failed to convince the Court that the accused was not present on the day of occurrence and therefore the plea of alibi of the accused Samsul also fails. On consideration of the medical report it is found that two round of tra 33. nsverse ligature mark completely encircling the middle of the neck. The doctor’s opinion is that the death is due to asphyxia as a result of strangulation. The inquest report shows suspected marks of strangulation. It was also o bserved that the deceased has been physically tortured as there are bruise marks on the body and done to death. It also states that it is a suspected case of m urder. In the cross-examination of PW- 16 he stated that he found black bruise m ark on the dead body and had also observed burnt injury on the right hand. On consideration of the statement of all the witnesses more so the PWs a 34. s well as the contents of the post-mortem report and the Inquest report, we are satisfied that the prosecution has made out a case for sustaining the judgment p assed by the learned Trial Court convicting the accused Samsul Mia under Section 498(A) IPC to undergo rigorous imprisonment for six months and fine of Rs. 1,00 0/- and in default of imprisonment for one month and rigorous imprisonment for l ife under Section 302 IPC and fine of Rs. 2,000/- and in default rigorous impris onment for another three months and the accused Tota Mia was also directed to un dergo rigorous imprisonment for life and fine of Rs. 2,000/- and in default conv ict is directed to undergo imprisonment for another three months. 35. is accordingly dismissed. In view of the aforesaid, we find no merit in the appeal and the appeal 36. Send down the lower court record