High Court · 2012

Prosecution case in brief may be stated as follows:- Mustt. Firoza Begum, wife of the deceased, lodged an FIR before the Officer-in-Charge of Howly Outpost, alleging therein that on 2.9.2002 at abo ut 4.55 P.M., the accused persons, namely, Sukur Ali called her husband Rahim Ba dsha to go out with him and accordingly, her husband accompanied the said accuse d. Thereafter, at about 9 P.M. her husband returned home in naked condition. She rushed towards him and asked about the cause of his coming naked. Her husband t old that accused Sukur Ali along with M. Ali and J.Ali, had given him something like Sarbat (Coco-Cola) to drink. Her husband also told her that after drinking the same, his body started burning from inside. She also noticed that some froth was coming out from the mouth of her husband. Her husband was rushed to the loc al Doctor on a handcart. But, the Doctor, Samsul Alam, declared that her husband was brought dead. The first informant, P.W.1 suspected it to be a case of murde r by the accused by poisoning.

3. On receipt of the FIR, the In-charge of Howly Police Station forwarde d the FIR for registration of the case to the Officer-in-Charge, Barpeta Police Station. Accordingly, a case was registered under Section 302/34 IPC and investi gation launched. In the course of the investigation, the Investigating Officer ( IO) recorded the statement of the witnesses and also arrested the accused Sukur Ali. However, the I/O could not arrest the other two accused persons and they we re declared absconders.

4. On completion of the investigation, a charge-sheet was submitted by the I/O, under Section 302/34 IPC against the appellant and two other accused, namely, Munaf Ali and Joynal Ali. On committal of the case to the Court of learn ed Sessions Judge, Barpeta, the case was transferred to the Court of learned Add itional Sessions Judge, FTC, Barpeta for trial. In the course of trial, a formal charge was framed under Section 302/34 IPC against the accused-appellant as well as two other co-accuseds named in the cha rge sheet by the learned Sessions Judge. On reading over and explaining the char ge aforesaid, the accused-appellant pleaded not guilty and claimed to be tried.

4. The prosecution examined as many as 10 witnesses, including the Medical Officer, Forensic Expert and Investigating Officer of the case, during t rial. On completion of the recording of the prosecution witnesses, the statemen t of the accused under Section 313 Cr.P.C. was recorded by the learned trial Cou rt. However, the accused took the stand of total denial. On conclusion of the hearing, the learned trial Court convicted and s entenced the appellant as aforesaid, giving rise to this appeal. However, remain ing two accused, namely, Joynal and Munaf were acquitted by the trial Court. 5. Mr. K. Agarwal, learned counsel for the appellant vehemently sub mits that for the first time in the Court, the first informant alleged the invol vement of Sukur Ali, in the incident. Learned counsel for the appellant pointed out that the evidence of the sole witness P.W.1 cannot be relied upon to convict the accused appellant in connection with the case, as she did not witnesses the occurrence. Learned counsel for the appellant further submits that though the d eath of the deceased was suspected to have been caused by administering poison b ut no trace of any poison was ever detected by the investigating agency from the viscera of the dead body. Further, no poison remainant was seized by the police . Learned counsel for the appellant contended that the conviction of the appella nt apparently is not sustainable.

6. Mr. K.A. Mazumdar, learned Additional P.P. on behalf of the resp ondent/State submits that the prosecution has been able to prove the case beyond all reasonable doubt against the accused and, hence, no interference is called for in the appeal.

7. Dr. Tilok Pathak, who examined and carried out the postmortem ex amination of the deceased had opined that the actual cause of death could not be ascertained, therefore, he sent the viscera for chemical analysis to ascertain the cause of death.

8. P.W. 8, Mr. Samudra Baishya, the Scientific Officer of FSL, in h is deposition stated that a sample of ’viscera’ collected from the body of the d eceased was examined by him. According to P.W. 8, on examination of the viscera of the dead body, the test for poison was negative which implies that the decea sed may not have died of poisioning as alleged by the prosecution.

9. From the evidence of P.W.3, the Doctor, who conducted the postmo rtem examination and the P.W.8, the scientific officer, who was examined the vis cera of the dead body of the deceased, it clearly transpires that the death of t he deceased was not due to poisoning, as suspected by the first informant. Appar ently, except vague and unconfirmed assumption of the witnesses, the cause of de ath of the deceased could not be ascertained by the prosecution. P.W.1 is the wife of the deceased, stated that in her deposition 10. , on the date of the incident her husband had gone to the market. After returnin g home from the market, the deceased took meal and was taking rest. At that time , accused Sukur Ali came and called her husband by name and accordingly, her hus band accompanied Sukur Ali. After an hour later, her husband returned home in a naked condition and froth was coming out from his mouth. On enquiry her husband told her that accused Sukur Ali had given him a bottle of Coca-Cola mixing some thing. After getting the information, she called Sukur Ali at their house. Acc ording to PW.1, Sukur Ali came to her house and confirmed that he gave her husba nd, the victim a bottle of Coco-Cola. PW-1 stated that the condition of the hus band deteriorated and he fell down on the ground. The injured husband of PW.1 w as taken to the chamber of Doctor, where he was declared dead. In her cross examination, it was specifically put to PW-1 that s 11. he did not make any accusation against the accused person, immediately after the occurrence. PW.1 also admitted that at the time of recording her statement by the Investigating Officer, she did not suspect that Sukur Ali could be involved in the incident. The above statement of PW.1 clearly spells out that putting th e blame of serving drink mixed with poison was an after thought. How, the after thought got triggered in the mind of PW.1 was never explained.. PW.2, Homen Ali, Gaonburah, who lodged the first information reg 12. arding the death of the deceased did not have any information that Firojz Begum, PW.1, also lodged subsequent FIR in respect of the same incident.

13. PW.4, Ralime Barman, corroborated the statement of PW.1 in all m aterial particulars. PW.4, who is mother of the deceased stated that she was to ld by the deceased that he would not survive, as blood was coming out from his s tool. PW.4 also stated to have heard from Sukur Ali that the deceased become ill after taking a bottle of Coca-Cola. PW.5, brother of the deceased deposed that the deceased while co 14. ming back home told him that he was given a bottle of Coca-Cola by Sukur Ali. P W.5 also affirmed that the deceased came home, completely naked and he wanted to go to the toilet immediately on reaching home. When the deceased started tre mbling, he was taken to the Doctor’s chamber in a handcart.

15. expired. PW.6, Didarul Islam, had no knowledge about how the deceased had

16. PW.9, Binod Barman, is the I/O of the case. PW.9 confirmed to h ave received the FIR from Hassan Ali, Gaonburah on 3.9.2002. PW.9 in his evide nce has categorically stated that he had received the information lodged by Firo za Begum on 9.10.2002, and he marked the FIR as Exht.6 and proved the FIR. Fr om the FIR of Firoza Begum lodged on 9.10.2002, it is apparent that the said FIR was filed by the PW.1, after a period of more than 37 days from the date of occ urrence. PW.9 also confirmed that he sent the dead body for post-mortem examina tion and also sent viscera to the Forensic State Laboratory and later on collect ed the report from the Forensic Department, before submitting the chargesheet.

17. PW.10, Mr. KK Medhi, another I/O of the case, who recorded the s tatement of the witnesses and also searched the bottle of Coca-Cola in the house of the victim, but he did not find the bottle.

18. PW. 10, in his cross-examination categorically stated that he ha d received the FIR on 9.10.2002 i.e. one month and 7 days after the occurrence. However, no explanation whatsoever was given for such belated filing of the FIR by the first informant, PW.1. PW.10, further stated that statement of Firoza Begum, PW.1 was recorded u/s 161 CrPC by him on 22.2.2004 i.e. 2 years 3 ‰ mont hs, after the incident. However, he did not give any explanation for such a be lated recording of the statement of the vital witness of the occurrence.

19. When delay occurred in recording the statement of the witnesses by the I/O u/s 161 CrPC, the evidence of such witnesses are unreliable. In this connection this Court in Sajad Ali -vs- State of Assam, reported in 1995(3) GLT 470 held that witnesses who were very much available in the vicinity were not ex amined by the investigating officer u/s 161 of the Cr P. C. at an early date. Ra ther, their statement so recorded at a belated stage weakens the prosecution cas e. . Since, no justifiable reason is so advanced rather not a single word is spo ken by way of explanation for this undue delay in recording their statement u/s 161 of the Cr PC, it rather leaves much scope as to infer with the strong convic tion with regard to those allegedly material eyewitnesses telling falsehood on m aterial facts after a lapse of more than a fortnight at the instance of some of the interested persons as a result of which, as claimed, the accused appellants are falsely implicated. Relying upon the reported case in AIR 1971 SC 804 Balak rishna Swain-Vs-State of Orissa, it was submitted that unjustified and unexplain ed longer delay on the part of the investigating officer in recording the statem ent of the material witnesses, during the investigation of a murder case particu larly without giving any explanation for such delay renders the evidence of such witnesses unreliable. There is stamp of falsehood so coming from the mouth of the prosecution witnesses and the evidence as it is, cannot thus be sai d to be intrinsically reliable.

20. Though the opinion of the expert is not binding on the Court, bu t it is relevant and it requires due consideration by the Court while appreciati ng the evidence on record. The specific case of the prosecution being death of the deceased by poisoning, therefore, the report scientific expert who performed the scientific examination of the vicera of the deceased is very vital to estab lish the charge against the accused. The Scientific expert had given a negative report in respect of presence of vicera of the dead body of the deceased . Re port of the scientific expert regarding non existence of poison in the food arti cles taken by the deceased just before his death, would make the prosecution cas e, unreliable and worthy of no credence. Resultantly, the cause of death of the deceased remained a mystery. 21. Considering the evidence laid by the prosecution and the report of the scientific expert, it can be said with certainty that the deceased did no t died due to poisoning. Consequently, the theory of poisoning that too so admin istered by the accused/appellant could not be established at all by the prosecut ion. 22. Thus, in our opinion the prosecution miserably failed to establi sh the charge under Section 302 IPC beyond all reasonable doubt. Consequently, t he appeal preferred by the appellant succeeds. The judgment and order passed by the learned Additional Sessions Judge, FTC, Barpeta, in Sessions Case No. 70/ 2007 is hereby set aside. The appellant be set at liberty forthwith, in connect ion with the case, if he is not required in any other case. 23. Send down the LCR forthwith.