No. 715 of 2006 · Gauhati High Court
Case at a glance
Provisions considered
- Indian Penal Code, 1860 ss. 34, 300, 302, 325, 380, 448
- Code of Criminal Procedure, 1973 s. 313
- Indian Evidence Act, 1872 s. 145
Key paragraphs
- Para 44. In support of their case, prosecution examined altogether 11 (eleven) wi tnesses. The two accused were, then, examined under Section 313 Cr.PC and, in th eir examinations aforementioned, they denied to have committed the offences, whi ch were alleged to have been committed by…
Judgment
In support of their case, prosecution examined altogether 11 (eleven) wi tnesses. The two accused were, then, examined under Section 313 Cr.PC and, in th eir examinations aforementioned, they denied to have committed the offences, whi ch were alleged to have been committed by them, the case of defence being that o f denial. No evidence was adduced by the defence. However, having found the evidence insufficient to hold Halema, wife of 5. the present accused-appellant, guilty of the offences charged with, the learned trial Court acquitted her accordingly; but, on finding the present appellant gui lty of the offences, which he had been charged with, the learned trial Court con victed him accordingly and passed sentences against him as mentioned above. Aggr ieved by his conviction and the sentences, which have been passed against them, the accused, Shahjahan Ali, as a convicted person, has preferred this appeal.
, and Mr. K.A. Mazumdar, Additional Public Prosecutor, Assam. We have heard Mr. A. Shariff, learned counsel, for the accused-appellant
While considering the present appeal, it may be noted that there was, ad mittedly, no eye witnesses to the occurrence. Before we deal with the other incr iminating circumstances, which formed the basis of conviction of the accused-app ellant, we turn to the evidence of doctor (PW10), who had, admittedly, performe d the post mortem examination on the dead body of Inamul Hussain on 25.07.2006 a nd found, according to his evidence, as follows: (cid:28)One male dead body of average built of dark brown complexion dressed with one h alf white ganjee and striped lungi. Mouth and eyes closed, anus and penis health y. Injuries: No.1: Imprint abrasion of ligature found around both the wrist, 4cm proximal to the wrist joint, 10 cm X 2.5 cm in size on both sides. No.2: Contusion of size 1.5 cm, 1.5 cm above the right eye. No.3: Cresentic abrasion (nail mark) around the neck, found two in left and one in right side of the side of the neck of size 1 cm X 0.5 cm. Scalp, skull & vertebrae: All healthy. Membrane: Congested. Brain: Congested. Spinal cord: Not examined. Liver: Healthy. Spleen: Healthy. Kidney: Both kidneys are congested. Organ of generation: All healthy. Pleura: Congested. Larynx and trachea: All healthy. Lungs: Both are congested. Heart: Full and healthy. (cid:29)
The doctor has opined that Inamul’s death was due to asphyxia as a resul t of strangulation during his life, the injuries being ante mortem in nature and caused by blunt forced impact. The doctor has also opined that Inamul Hussain’s death was homicidal in nature.
What, now, needs to be noted is that the findings of the doctor (PW10) a s regard the injuries, which were found on the said dead body, and the opinion w ith regard to the nature of the injuries and the case of death remained wholly u nchallenged by the defence. In fact, the correctness or veracity of the evidence , given by PW10 (doctor) is not under challenge even in this appeal. However, wh ile considering the evidence of the doctor (PW10), it needs to be noted that as far as the opinion of a doctor, as an expert is concerned, the same is, in the l ight of the provisions of Section 145 of the Evidence Act, advisory in nature an d it is for the Court to form its opinion on the basis of the facts, which may e merge not only from the evidence of the expert, but also from other evidence on record and the surrounding circumstances. We would, therefore, revert to the evi dence of the doctor (PW10), once again, at a later stage of this appeal.
Bearing in mind what is indicated above, we come to the evidence of PW1 10. (daughter of deceased Inamul). According to her evidence, her father was a retir ed personnel from Indian Air Force and, at the time of occurrence, he used to st ay, in a rented house at Ajanta Path, Beltola, with her mother. It is in the evi dence of PW1 that though she does not know the present appellant (who faced tria l as male accused), she knew the female accused person, because the female accus ed, i.e., Halema Bibi, had worked, in the house of her father, Inamul, as a part -time domestic help. 11. It is also in the evidence of PW1 that she received a telephone call, on the day of the occurrence at about 4.30 pm, from her mother, who told her (PW1) that she (PW1’s mother) had been informed by her neighbours that something had happened to her father (i.e., Inamul) and she (PW1) shall, immediately, reach he r father’s house.
On receiving the information, PW1, according to what she has d eposed, reached her father’s house accompanied by her husband and her brother an d, on arriving there, she found that a lot of people had gathered and when they went into the bedroom of her parents, she found her father lying on the floor wi th his hands, feet, mouth and neck tied with clothes and these clothes were the ones, which were frequently used by her parents. PW1 has also deposed that she a nd her brother, Wasim (PW5), then, untied the knots and while untying the knots, they also found that cloth had been tagged into her father’s mouth before he ha d been gagged, and that the knot on the neck was so tight that she and her broth er were unable to untie the same and, with the help of her husband, they succeed ed in untying the knot and, on untying the knot, blood oozed out from the nose a nd the tongue got stuck inside.
PW1 has further deposed that they were unsure as to whether their father was alive or dead and, that is why, all of them took hi m to GNRC hospital, where a doctor examined him (Inamul) and declared him dead. We notice that according to the evidence of PW1, her mother shouted that 12. there was dacoity at her house and when she was about to leave her home, accuse d Halema had met her and asked her as to where she had been going so late in the day and had also asked her (i.e., the mother of PW1), as to when she would retu rn and her mother reacted by asking accused Halema as to why she needed these in formations. What is also curious to note is that according to the evidence of PW 1, her mother also said that accused Halema had asked her as to who else was pre sent in the house. PW1 has asserted that her father never opened door for any un known person, though in the case of Halema, there was possibility of opening the door, because she had worked as a domestic help.
This apart, it is also in the evidence of PW1 that her father would not have opened the door, while claded in lungi and vest. We also notice, in the evidence of PW1, that her mother discover ed that money, jewelry, etc, had been taken away from the Almirah and though her mother and brother, immediately, went looking for accused Halema, she was not f ound at her house. 13. Though PW1 was put to cross-examination, at length, by the defence, and a lot of omissions were pointed out to her, as omissions from her previous state ment made to the police, none of these omissions were confirmed, in terms of Sec tion 145 of the Evidence Act by the investigating officer (PW11), when he (PW11) was cross-examined by the defence. Thus, the material aspects of the evidence o f PW1 remained unshaken and intact. Broadly in tune with the evidence of PW1 is the evidence of PW2 (Ranjit 14. Deka), husband of PW1, particularly, with regard to the fact that Inamul’s legs, hands, etc., were tied and the knot in the neck was so tight that PW1 and her b rother could not untie the knot and it was with his (PW2) help that the knot was untied.
The evidence of PW2 has also remained, despite cross-examined by the de fence, wholly unshaken on all material aspects. 15. In fact, from the evidence of PW2, it also transpires that they found, while they entered into the house, the household articles lying scattered. Even PW2 has deposed that his mother-in-law told him (PW2) that accused Halema had as ked her where she had been going to and when she would return. It is also in the evidence of PW2 that his father-in-law would have never opened the door of the house for an unknown person and that cash, jewelries, clothes, etc., were found missing from the house. 16. The above discussion of the evidence on record brings us to the evidence of PW5 (Wasim), who is son of the deceased and informant of the case. His evide nce is that on 24.07.2006, at about 4 - 4.30 pm, he received a phone call from h is mother asking him to go to his father’s house inasmuch as his parents used to live in a house at Ajanta Path, Beltola; whereas he lives at Hatigaon.
PW5 has also deposed that he knew accused Halema, because she had worked, as part-time m aid, in his parent’s house. 17. It is in the evidence of PW5 that on receiving the telephone call from h is mother, he went to his parent’s house and, around the time he reached home, h is sister (PW2), too, arrived there and, on entering into the room, they found t heir father gagged and his hands, feet and neck tied with clothes and with the h elp of his brother-in-law, they unfastened the knot in the neck, untied Inamul’s hands and feet and removed the cloth by which his mouth had been gagged. It is also in the evidence of PW5 that his father was unconscious and as they were uns ure about the state of health of their father, they took him to GNRC hospital, b ut the doctor declared him dead. PW5 has also given evidence that clothes, gold and money had been taken away from the Almirah of his parent’s house.
From the cross-examination of PW5, nothing whatsoever was elicited by th 18. e defence to show that the evidence given by him was untrue or false including t he fact that accused Halema had met his mother and asked her as to where she was going and when she would return and that these facts, with regard to accused Ha lema, had been mentioned by him in his Ejahar. 19. In the backdrop of the evidence, which we have discussed above, we, now, revert to the evidence of PW6, widow of deceased Inamul Hussain. Her evidence i s that on 24.07.2006, at around 4.30 pm, she had gone to I.T. office, where one Hazarika informed her, (cid:28)Elder brother is not well, (his) children may be informe d. I have to go soon (cid:29); whereupon she informed her children on phone and at about
4.45 pm, reached home, which is located at Ajanta Path, Beltola.
Even PW6 has deposed that accused Halema worked as a part-time domestic help in their house and about two months prior to the occurrence, she had been r emoved from her job and that the male accused person is the husband of accused H alema.
What is pertinent to note, in the evidence of PW6, is that on the day of the occurrence, at about 11.30 am, when she came out of her house and rechargin g her mobile, accused Halema came there and asked her as to where she would be g oing and when she told accused Halema that she was going to the office, accused Halema asked her as to when she would be returning home. It is in the evidence o f PW6 that on reaching home, she saw many people on the doorway of her house and , on entering her house, she saw her husband lying on a passage, leading to the dining room from the bed room, with his hands, feet, face, neck, etc, tied by a cloth and that her son-in-law untied her husband and took her husband to GNRC ho spital, where doctor had examined her husband and declared him dead. It is also in the evidence of PW6 that two day’s prior to the occurrence 22. , accused Halema had come to their house and, on witnessing her through the wind ow, she (PW6) asked her to go away.
PW6 has also deposed that they went to accus ed Halema’s house, but they found Halema not present at her house. 23. What cannot be ignored, in the evidence of PW6, is that she has asserted that her husband does not open door to any stranger and that the Almirah and th e dressing mirror of the house were ransacked and two chains, gold ear-rings, cl othes and cash had been taken away. What is of immense importance to note, in the evidence of PW6, is that s 24. he, too, has asserted that at the time of the occurrence, her husband was wearin g lungi and vest and he never used to come out with lungi and vest before a stra nger. 25. Same as all witnesses, though PW6, too, was cross-examined by the defenc e, nothing material was elicited from her cross-examination to make the Court ei ther disbelieve or discard her evidence as unsafe to place reliance upon. 26. From the above discussion of the evidence on record, what clearly emerge s is that Inamul was present alone at his house at the time, when his wife (PW6) left and that he was found lying on the floor with his hands, feet and neck tie d by clothes.
There was a piece of cloth inside his mouth and, then, his mouth h ad been gagged disabling him from raising alarm for help and from the Almirah an d box, ornaments, cash, etc, had been stolen away. It also emerges from the above discussion of the evidence on record tha 27. t Inamul was not in the habit of meeting strangers wearing lungi and vest and he would not have, ordinarily, opened the door of the house if there were a strang er, who wanted to come in. Bearing in mind what have been indicated above, when we turn to the evid 28. ence of PW3, who is a police officer of the rank of Inspector, CID, in Finger Pr int Branch, we notice that according to her evidence, on 02.08.2006, on police r equisition, she, along with their photographer, arrived at the place of occurren ce, i.e., the house of deceased Inamul, and examined finger and palm prints mark ed as A, B and C collected from the place of occurrence and found, on comparison , that the finger prints, on the Almirah and the handle of the door, were matchi ng with the specimen finger prints of accused Shahjahan Ali.
In her cross-examin ation, PW3 has clarified that the finger prints were obtained from the door of t he steel Almirah and that the finger print of the accused was collected by the i nvestigating officer. 29. In the light of the evidence of PW3, when we turn to the evidence of the Investigating Officer (PW11), we notice that according to his evidence, apart f rom various steps, which he had taken in connection with the investigation, the finger print expert had collected finger prints at the place of occurrence and h e sent the finger prints of the two accused persons to the finger print expert f or determination if the finger prints of the accused matched with the ones colle cted from the place of occurrence. The fact that finger prints of the two accuse d were taken and sent to the finger print expert for comparison, with the finger prints collected at the place of occurrence, were never disputed at the trial n or was the expertise of PW3, as a finger print expert to determine if the finger prints of the accused were found at the place of occurrence, was ever disputed by the defence.
30. Thus, the undisputed, unchallenged and unshaken evidence of PW3 and PW11 leave no room for doubt that the finger prints of the present accused-appellant s were found at the Almirah and the door of the house of Inamul. 31. Though the evidence given by the prosecution witnesses were put to the a ccused-appellant, when he was examined under Section 313 Cr.PC., for his respons e, the accused-appellant did not state anything, which can be taken to have shak en or, in any manner, weaken the evidence of PW3 and/or PW11 and/or of any other witnesses. The unexplained presence of the finger impressions of the accused-ap pellant at the place of occurrence, i.e., at the Almirah and on the door, lead o ne to the lone and only conclusion that the accused-appellant had, indeed, enter ed into the house of the said deceased, broken the Almirah and taken away the va luables from there and, in the absence of any other evidence indicating to the c ontrary, there can be no escape from the conclusion that it was none but the acc used-appellant, who had gagged and tied the said deceased with such force that t he said deceased got strangulated and died. 32. Situated thus, there is no room for doubt that the accused-appellant had committed theft of jewelry, cash, etc, at the house of the said deceased.
The question of all questions, now, is: Whether the accused-appellant, i n the facts and attending circumstances of the present case, could have been hel d guilty of the offence of ’murder’? While considering the above question, it needs to be noted that accordin 34. g to the evidence on record, the said deceased was found, on the floor of his ho use, with his hands, feet and neck tied by a rope and a piece of cloth was insid e his mouth and his mouth was gagged. The fact, however, remains that the deceas ed was, according to the evidence on record, found unconscious at the time, whe n his son and daughter, accompanied by his son-in-law, entered into the house, i n question. 35. m from causing death of the said deceased. There can be no doubt that the manner in which Inamul was found gagged a 36. nd tied, the same had endangered his life, which amounts to causing of grievous hurt, but this fact alone, in the absence of any further evidence, particularly, when Inamul was alive at the time, when his family members reached the place of occurrence, cannot make one come to the sole conclusion that the accused-appell ant intended to cause Inamul’s death. Though a person may be held guilty of comm ission of offence of murder, even if he causes death without intention, but with requisite knowledge as embodied in Section 300 IPC, the fact remains that the p ossibility of Inamul having remained alive is a reasonable possibility, had his children arrived a little before the time, when they had actually arrived at the Had the accused-appellant intended to cause death, nothing could stop hi house of Inamul.
Situated thus, we find it frightfully difficult and impossible to affirm the conviction of the accused-appellant under Section 302 IPC.
In the facts and attending circumstances of the present case, as discern ible from the evidence on record, we are of the considered view that the evidenc e on record prove that the accused-appellant, as pointed out above, caused griev ous hurt and as the grievous hurt had not been caused by any dangerous weapon, h e ought to have been convicted under Section 325 IPC and he ought to have been g iven the benefit of doubt so far as the charge under Section 302 IPC was concern ed.
Because of what have been discussed and pointed out above, this appeal p artly succeeds. While we uphold the conviction of the accused-appellant under Se ction 380 IPC and the sentence passed in connection therewith, we set aside the impugned judgment and order of conviction and the sentence so far as the same re late to Section 302 IPC and we hereby convict the accused-appellant under Sectio n 325 IPC and sentence him, in the light of the facts, which have surfaced on re cord, to undergo rigorous imprisonment for a period of six years and pay fine of Rs.1,000/- and, in default of payment of fine, suffer rigorous imprisonment for a further period of three months. The sentence, which has been passed against t he accused-appellant for his conviction under Section 380 IPC by the learned tri al Court, and the sentence, which we have, now, passed, for his conviction under Section 325 IPC, shall run concurrently. We also make it clear that if the accu sed-appellant is found to have completed the period of sentences, which have pas sed against him, he shall be set at liberty, forthwith, unless he is required to be detained in connection with any other case.
osed of.
With the above observations and directions, this appeal shall stand disp Send back the LCR.
Questions this judgment answers
Which statutory provisions did this judgment involve?
Indian Penal Code, 1860 — ss. 34, 300, 302, 325, 380, 448; Code of Criminal Procedure, 1973 — s. 313; Indian Evidence Act, 1872 — s. 145.
Which court decided this case, and when?
Gauhati High Court, on 11 Sep 2012. The bench was I A ANSARI, P K MUSAHARY.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.