High Court · 2012

We have heard Mr. R. Ali, learned amicus curiae appearing on behalf of t 6. he accused-appellant as well as also Mr. D. Das, learned Addl. PP, Assam, appear ing for the State. To appreciate the submissions made on behalf of the respectiv e parties, we would like to discuss the core of the prosecution evidence.

7. PW1, Ramjan Ali, who is the father of the accused, deposed that his son Samsul Haque, who was working with the BSF in the present place of posting at Sr inagar, Agartala. Accused was married to Rajina Khatoon around 6-7 years back a nd had three kids to look after. Accused, who came home a day before, had kille d his wife with a dao(chopper) at his residence at around 11:00AM. According to this witness, when he was going to Bijni market on midway, he was suddenly infor med by his son-in-law, about some ominous events in his family. Immediately ther eafter, PW.1 came back to find his son being tied up in the house with blood ooz ing from his body and on being asked, his son did not speak anything except laug hing. PW.1 was told by villagers that Samsul had killed his wife Rajina and furt her going inside the house, he saw the dead body of Rejina, in her room. In cross, the witness stated that his son Samsul had been suffering from insanity and for which he had been treated at LGB Institute of Mental Health at Tezpur. However, no certificate whatsoever or prescriptions issued by the docto r for his treatment, was placed before the Court for scrutiny or verification of such statement.

8. PW2, Smti. Sajina Khatoon, who is the mother of the accused, deposed tha t her son Samsul had killed his wife and added that she was not at home, when th e occurrence took place and she came home only on being informed about the inc ident. PW2 stated that her son had been suffering from mental derangement.

9. PW3 , Smt. Anima Bibi in her evidence has stated that accused Samsul is her brother-n-law. At the time of occurrence, she and her brother -in-law accus ed Samsul were living separately, but in the adjacent place. Deceased Rejina wa s her sister-in-law. Samsul being a BSF (Boarder Security Force ) employee , oc casionally visited his family. Samsul came to the house on the previous day o f the occurrence. Occurrence took place at about 10-00 AM. According to PW3, s he was washing clothes in the tube-well and at that time Rejina was with her. A fter that Rejina went back to her house. The distance from the tube-well to the house of Rejina is about 200 feet. While Rejina went back to her house from tub e-well, at that time her husband accused Samsul was in the house. After some ti me accused Samsul was laughing loudly at his courtyard and raised hue and cry. She came there and saw blood was flowing from the head of Samsul and he was laug hing. She raised ’hullah’ and saw the dead body of Rejina was lying inside the house having cut injuries. PW.3 saw cut injury on the head and neck of Rejina a nd there was bleeding. She has stated that just before the occurrence there was no quarrel between Rejina and Samsul. In the cross-examination, she has stated that at the time of occurrence accused Samsul was suffering from insanity.

10. PW4, Abdul Zalil, deposed that on the day of occurrence he was in the f ield and after hearing hue and cry from Samsul’s house, he came to the place of occurrence and saw the dead body of Rejina covered with cloth and blood was oozi ng from her body. According to PW.4, when police uncovered the dead body, he not iced injuries on the head and neck of the victim and a blood-stained dao(weapon of offence) was lying near the dead body. In cross, the witness deposed that the accused had been suffering from i nsanity and for which he had been treated at Tezpur mental hospital. Except mak ing such a statement PW.4, neither produced any documents relating to treatment of the accused in the mental hospital nor divulged or explained any incident or behavior of the accused, which PW.4, considered to be of a mentally sick person.

11. PW5, Md Sahadat Ali, deposed that on way back home from market on hearin g the news about the killing of Rejina by her husband Samsul, he came to the hou se of the accused and saw him being tied up at his house and laughing, with inju ries on his body. On removal of clothes from the dead body, the witness saw inju ries on the head and neck of the deceased Rejina.

12. PW6, Dr Rajendra Nath Deka, who performed post-mortem examination on the dead body of the dead body of Rejina, found the following injuries: An incised wound 5 inch x 2 inch x 2 inch is seen over the nape of the n A non-emaciated, non-decomposed female body, rigor mortis present. The f (cid:28)1) emale is pale and incused wound 3 inch x 1 inch x ‰ inch is seen obliquely over the occipital region with the exposure of the occipital bone. 2) eck with the involvement of both muscles. 3) erior aspect of left forearm. 4) pect of the left waist (cid:29). An incised wound 1 ‰ inch x ‰ inch x … inch is seen over the anterior as An incised wound 4 inch x ‰ inch x ‰ inch is seen obliquely over the ant In the opinion of the doctor, the death was caused due to shock and hemorrhage f rom the injuries sustained by the deceased, and all the injuries described were ante-mortem in nature. The ante-mortem blood clots were adherent to the margins of the injuries. In cross, the witness deposed that the injuries described above can be c aused by several blows and by sharp weapon and that blood clot may occur within one hour of the injury.

13. PW7, Padmeswar Deka, who is investigating officer of the case, deposed t hat he initiated the investigation of the case, on the basis of the FIR, visited the place of occurrence, performed an inquest on the dead body, seized the dao( weapon of offence), sent the dead body of Rejina Khatoon to Dhubri Civil Hospita l for a post-mortem. PW.7 stated that he recorded statements of the witnesses, arrested the accused and on completion of the investigation, submitted charge-sh eet under Section 302 IPC against the accused. In cross examination, PW.7 stated that at the time of arrest, the accuse d appeared to be a normal human being with sound health. PW.7 denied the defence suggestion that the accused was mentally sick at the time of occurrence.

14. From the deposition of the witnesses, it is found that occurrence took p lace on 9.6.94 at about 11-00 AM in the house of the accused Samsul. The dead b ody of Rejina was found with profuse bleeding, in her room and accused Samsul wa s immediately detained by the village people and tied in his own house. PW1, Ra mjan Ali, who is the father of accused Samsul had lodged the FIR before police i mmediately after the occurrence. Ext.1 is the FIR. PW.1 saw the dead body of R ejina in her room with profuse bleeding and the village people had detained his son in his house for the alleged offence. On enquiry his son did not tell anyth ing, but he was laughing. As per the evidence of PW2, Smt. Sajina Begam, the mo ther of accused Samsul, was informed by his nephew that her son had committed mu rder of Rejina and on getting the information she came to the house and saw the dead body of Rejina in the house. PW4 , Abdul Zalil and PW5 , Sahadat Ali in the ir evidence also stated in the same way about the fact of detaining of accused S amsul in the house after the occurrence. On enquiry Samsul did not tell anythin g. They entered into the room of Rejina and found her body was covered with clo th with profuse bleeding.

15. PW3 , Smt. Amina Bibi, the sister-in-law of accused Samsul is the material witness in this case as they used to reside in the same compound. As per evidence of PW.3, accused Samsul came to his house on the previous day of the occurrence from his place of service. Occurrence took place at about 10 -00 AM in the morning. PW.3 was washing clothes in the tube-well and at that ti me Rejina, the wife of accused Samsul Haque was together with her. After some ti me, deceased Rejina went back to her house, which is at a distance of 200 feet f rom the tube-well. When Rejina came to her house from the tube-well, at that ti me accused Samsul was in the house. After some time Samsul came out in his cour tyard and was laughing and raising hue and cry. She immediately went there and saw Samsul was laughing and blood was flowing from his head. She raised hullah and hearing hullah village people came and they detained and tied Samsul. She s aw the dead body of Rejina was lying inside her room having cut injuries. She s aw cut injuries on the head and neck of Rejina and there was bleeding. She made it clear that prior to the occurrence there was no quarrel between Rejina and S amsul. Thought PW3, Smt. Anima Bibi, sister-in-law of Samsul was not direct ey 16. e witness to the occurrence of commission of murder of Rejina by her husband Sam sul, but in her evidence she has clearly stated about the entire occurrence. Whe n Rejina entered in her room from the tube-well at that time her husband Samsul was inside the room and after a while Samsul came out from the room and was laug hing.

17. Coming to the evidence of PW6, Dr. Rajendra Nath Deka, it is found that on 10/6/94, he conducted post-mortem on the dead body of wife of Samsul on polic e requisition and found incised wound 3 (cid:28) x 1 (cid:29) x 1 (cid:29) in size obliquely over the oc cipital region with exposure of occipital bone and also incised would of 5 (cid:29) x 2 (cid:29) x 2 (cid:29) in size over the nape of the neck and incised wound of 4 (cid:29) x ‰ (cid:28) x ‰ (cid:28) obli quely over the left forearm and incised wound of 1 ‰ (cid:28) x ‰ (cid:28) x ‰ (cid:28) over the left waist. In the opinion of the doctor, the death was due to shock and haemorrhag e from the injuries sustained by the deceased.

18. The injuries sustained by the deceased as described by the witn esses and the medical officer do not contradict and the injuries are found to be very dangerous in nature, which were caused on the vital part of the body of Re jina, the deceased. The repeated incised wounds caused on the vital parts of Re jina by the assailant indicates the fact that it was the intention of the assail ant to cause the death of Rejina and as such he caused repeated blows by sharp w eapon on the vital parts of the body of the deceased Rejina and thus caused her death. Mat. Ext.1 is the seized blood stained ’dao’ which was recovered from ne ar the dead body of the deceased. PW.7, Sri Padmeswar Deka, the S.I., of Police in his evidence has clearly stated that he had seized Mat. Ext.1 i.e. the ’dao’ of 1‰ feet long having blood stained in presence of the witnesses from the side of the dead body of the deceased.

19. The statement of accused Samsul was recorded under Section 313 of CrPC w ith reference to the evidence brought on record against him. The accused has adm itted that deceased Rejina was his wife and he was working with BSF at the relev ant time. Accused came on the previous day of the occurrence, from his place of service by taking leave. Accused in his statement under Section 313 of CrPC ad mitted that on his way home from Tripura Panisagar Camp, he brought with him a ’ dao’, which was seized by police.

20. There is clear evidence from the deposition of the witnesses regarding s eizure of blood stained ’dao’ from the side of the dead body of Rejina and the s aid ’dao’ is Mat. Ext.1. Accused in his statement under Section 313 of CrPC has admitted about the fact of the said seized ’dao’ which he brought to his house from Panisagar Camp, Tripura and he came to the house on the previous day of the occurrence taking leave. The witnesses also affirmed the fact that accused is a BSF personnel, who came to his house on the previous day of the occurrence, fr om his work-place.

21. Though there is no direct eye witness to the occurrence of the commissio n of murder of Rejina in his house by the accused, but there is strong circumsta ntial evidence which lead to the conclusion that in all human probability the ac t of murder was committed by the accused Samsul.

22. In the case of Sarad Birdhi Chand Sarda vs. State of Maharastra reported in AIR 1984 SC 1622, the Hon’ble Supreme Court laid down the five golden prin ciples i.e. the (cid:28)Panchseel (cid:29) of proof of a case based on circumstantial evidence, which are: (cid:28)1)The circumstances from which the conclusion of guilt is to be drawn should be fully established; 2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say they should not be explainable on any othe r hypothesis except that the accused is guilty; 3) The circumstances should be of a conclusive nature and tendency; 4) They should exclude every possible hypothesis except the one to be proved, an d 5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (cid:29)

23. It is now well-settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no con clusion other than one of guilt of the accused. The circumstances cannot be on a ny other hypothesis. It is also well-settled that suspicion, however, grave may be, cannot be a substitute for a proof and the courts shall take utmost precauti on in finding an accused guilty only on the basis of the circumstantial evidence . [See Anil Kumar Singh v. State of Bihar : (2003)9SCC67 and Reddy Sampath Kumar v. State of A.P.MANU/SC/0559/2005 <javascript:fnOpenGlobalPopUp(’/citation/cross citations.asp’,’MANU/SC/0559/2005’,’1’);> : 2005 CriLJ 4131 ]

24. In Sahadevan alias Sagadeval vs State, (2003) 1 SCC 534, the Apex Court has held that that in a case of last-seen-together, it is obligatory on th e part of the appellant to explain as to when and where he parted the company of the deceased. In the instant case, the appellant did not take any plea regardin g parting with the company of his wife ; neither had he come forward to explain as to how and in what manner his wife had to sustain the fatal injury on her pe rson whilst she was with him in the same house a moment before the occurrence.

25. The Apex Court in more than one case has held, that if the pros ecution, based on reliable evidence, establishes that the person was last seen in the company of the appellant and was never seen alive thereafter, it is oblig atory on the appellant to explain the circumstances in which the missing person and the appellant parted company. (See Joseph v. State of Kerala .) (2000) 5 SCC 197 : 2000 SCC (Cri) 926.

26. Keeping in mind the above golden principles, it is found in the p resent case that - The accused Samsul, who is a BSF personal came to his house from his ser 1) vice place on the previous day of the occurrence i.e. on 8.6.94; 2) At the time of occurrence on 9.6.94 at about 11-00 AM the accused Samsul was inside of his house together with the deceased Rejina; 3) Rejina the wife of accused Samsul Haque, who was in the tube-well alon g with PW.3, Smt. Amina Bibi ,came to her room at about 11-00 AM from near the tube-well and at that time accused Samsul was inside the room; 4) After some time Samsul Haque came out from his room to the courtyard and he was laughing and he made hue and cry. Hearing this PW3, Amina Bibi immediat ely came there from the place of tube-well, which is about 200 feet from the hou se of Samsul and saw blood in the head of Samsul and also saw the dead body of R ejina was lying in the room of Samsul with cut injuries on the head and neck of Rejina. She raised hue and cry and village people came and detained and tied Sa msul in his house, It was specifically put to the accused to explain the circumstances un 5) der which Rejina was killed, when accused alone was last seen together with Reji na inside the room, a moment before the occurrence, which he did not answer. 6) Police seized blood stained ’dao’ which is Mat. Ext.1 from the side of t he dead body of Rejina, which was admitted by the accused to be his dao. The d ead body was inside the room of accused Samsul.

27. Though the prosecution could not fathom and spell out the motive behin d the crime, but the fact of accused carrying a (cid:28)dao (cid:29), all the way from his work place at Tripura, reveals that the accused consciously with clear intention, was preparing himself to commit the crime. Apparently, except admitting the fact o f bringing the weapon of assault from the work place at Agartala, the accused di d not explain the purpose, as to why such a dangerous weapon ’dao’ had to be bro ught by him all the way from Tripura. The weapon of assault was ultimately foun d to be used by him to kill the deceased. As a matter of fact, motives may be c linching circumstances for the commission of offence, but in absence of proof of motives to commit a crime, conviction can still be maintained provided that oth er circumstances proved are such that all other hypothesis except the guilt of t he accused stands ruled out.

28. Thus, considering the prosecution evidence and in the light of the abov e discussion, it is found that the prosecution has very well established and pro ved beyond all reasonable doubt that it was accused Samsul Haque, who intentiona lly committed murder of his wife Rejina Khatoon in his room, on 9.6.94 at about 11:00 AM, by causing cut injuries with a ’dao’.

29. In this case, PW1, Ramjan Ali and PW2, Smt. Sajina Begum are the parents of accused Samsul Haque,PW3, Amina Bibi is the sister-in-law of Samsul Haque an d PW4 and PW5 are the village people. Though the said witnesses, in their depos itions, have stated about the fact of the occurrence, but they have stated that the accused was suffering from some kind of insanity, prior to the occurrence an d at the time of occurrence. There is no documentary evidence on record rega rding insanity of the accused, prior to the occurrence and at the time of occurrence and/or about any medical treatment, taken in the mental hospital by the accused. PW1 in his evid ence has stated that his son, Samsul Haque was employed in the BSF long before t he occurrence. It is apparent from the evidence that he returned home from his place of service to his house, on the previous day of the occurrence, by taking leave. There is no record, in the department of BSF that during the service per iod, accused Samsul Haque was ever suffering from insanity and/or any medical co ndition relating to the mental health, for which medical or any such treatment w as extended to him. When the accused, a BSF personnel, on regular employment, w ho had returned home on the previous day of the occurrence, amply indicate the f act that he was physically and mentally fit and sound, during his service period as well as on the date of occurrence. From the above discussion, it transpires that neither the accused nor th 30. e parents of the accused or any other witness, prima-facie, have established by any credible evidence, regarding the insanity of the accused Samsul, prior to th e occurrence and/or at the time of occurrence, warranting application of the pro vision of Chapter-XXV of the CrPC. As admitted by the relative witnesses of the accused, the gruesome murder of own wife, so committed by the accused, is no le ss than insanity, but simply by saying and thinking so, it would not be able to protect the accused from the crime committed by him. In the statement recorded u nder Section 313 CrPC,the accused has not taken any plea of insanity. It was the only plea of the parents of the accused and relatives that too without any mate rial evidence on record. The plea of insanity projected by the parents of the ac cused and other relative witnesses,thus, apparently is an afterthought, without any credence, which in our opinion is only with an oblique desire to save the ac cused from the wrath of punishment, for the offence committed by him.

31. In view of above, we do not find any sufficient ground to interfere with the findings arrived at by the learned Addl. Session Judge (Adhoc), Fast Track Court, Bongaigaon. Accordingly, this appeal filed by the accused-appellant from jail, fails and stand dismissed.

32. Before parting with the judgment, we would like to appreciate the valuab le assistance rendered by Mr. R. Ali as Amicus Curiae in arriving at the above d ecision. Mr. R. Ali, learned amicus curie is entitled to his professional fees o f Rs.4,000/-.

33. Send down the LCR forthwith.