High Court · 2012

02. nd Mr. Z. Kamar, learned Public Prosecutor for the respondent State. We have heard Mr. J. Ahmed, learned counsel for the appellants a

03. The prosecution case is traceable to the FIR dated 14.03.2005 l odged by one Md. Syaduddin Ahmed with the Officer-in-Charge, Belsor Police Stati on to the effect that about 7.30 P.M. in the evening of the previous day, after his daughter Miss Jesminara Ahmed had gone missing, her dead body with multiple injuries was eventually detected lying in the field at the back side of a nearby mosque. According to the informant, some miscreants had killed his daughter an d had thrown her at the said place. On the FIR, Belsor Police Case No.24/2005 w as registered U/s.302 of the IPC to which the appellants pleaded (cid:28)not guilty (cid:29). The prosecution examined 7(seven) witnesses including the Investigating Officer and the doctor who had performed the post mortem examination on the dead body as well as the Forensic Expert qua the samples of earth collected from the place o f occurrence as well as the trouser of the appellant No.1. In course of their e xamination U/s.313 of the Criminal Procedure Code (for short hereinafter referre d to as the Code), the appellants denied the correctness of the incriminating ci rcumstances with which they were confronted. They however declined to adduce an y evidence in defence. The verdict of guilt followed. Mr. Ahmed has emphatically argued that the prosecution having mi 04. serably failed to prove the charge against the appellants, the impugned judgment and order if allowed to stand would result in travesty of justice. According t o him, not only there is no eye witness to the incident, the circumstantial evid ence referred to by the prosecution is too incoherent and scanty to unmistakably prove the charge against the accused-appellants and thus the appellants. Mr. Ah med, further urged with particular reference to the evidence of PW-1 that it was highly improbable, having regard to the continued presence of the appellant No. 1 in the marriage ceremony referred to therein, that he was the perpetrator of t he crime. According to him, the availability of the earth from the place of occ urrence in the living room of Appellant No.2 and the presence thereof in the tro user of the Appellant No.1 per se did not impeachably establish their guilt. Po inting out that there is no evidence of (cid:28)last seen together (cid:29) involving the appel lants and the deceased, the learned counsel has sought to impress upon us that i n view of the vicinity of the marriage place to the place of occurrence, the fai lure of the prosecution to examine any independent witness renders its version t o be wholly unacceptable and thus the appellants are entitled to be acquitted. In support of his plea that in a criminal trial an accused cannot be convicted o nly on the basis of suspicion, the learned counsel has placed reliance on the d ecision of the Apex Court in 2002 (7) SCC 317, ASHISH BATHAM Vs. STATE OF MADH YA PRADESH.

05. Per contra, Mr. Kamar has urged that the quqrrel between the dec eased and the son of the Appellant No.1 at the marriage place earlier in the aft ernoon of the date of occurrence and the presence of mud of the place of occurre nce in the living room of the Appellant No.2 and in the trouser of the Appellant No.1 and the overwhelming circumstantial evidence unerringly point to the guilt of the appellants and thus the conclusion to that effect drawn by the learned trial Court is unassailable in law and on facts.

06. To appropriately appreciate the rival arguments, a brief survey of the evidence on record is indispensable. PW-1 Md. Sayeduddin Ahmed, the fath er of the deceased girl aged about 9 years stated that in the afternoon on the d ate of occurrence i.e. 13.03.2005 there was a marriage ceremony of Ms. Rajema Be gum of their village in which they were present. He stated that at about 11 A.M . the deceased picked up a quarrel with Jiaur Rahman, son of the Appellant No.1 aged about 8 years, following which the Appellant No.2 intervened and sought to strangulate the deceased and in the process thereof also tore her frock. Accord ing to the witness, he took his daughter back home and they returned to the marr iage ceremony only in the evening at about 5 P.M. He stated that later when he went out to answer nature’s call, he saw his daughter returning home and passing by the house of the accused-Appellant No.1. According to this witness, it was about 9.30 P.M. when his wife Arifa Begum informed him that their daughter had n ot returned home and thereafter a search was conducted, following which the dead body of the deceased was recovered in the field situated at the back side of a mosque at about 12.30 A.M. This witness proved the Ejaher, Ext-1. In cross-exa mination, he disclosed that the mosque was situated at a distance of 2 furlong f rom his house. He deposed further that the house of the appellant Jainur Ali wa s located after two houses intervening in between. According to this witness, w hen his wife Arifa Begum informed him that their daughter had not returned home, appellant Jainur Ali was present in the kitchen house at the marriage ceremony. He added further that when he had seen his daughter returning home, there was no person on the road and the appellant Jainur Ali was in the marriage house. H e stated about the seizure of a pair of sandals belonging to the deceased and th ree pieces of brick from the place of occurrence.

07. d the report, Ext-2 in connection therewith. PW-2 Shri Apurba Barman is a witness to the inquest and he prove

08. PW-3 Dr. Nirendra Nath Bhuyan who on 14.03.2005 was Sub-Division al Medical & Health Officer at S.M.K. Civil Hospital, Nalbari did conduct the po st mortem examination on the dead body of Jesminara Begum and deposed to have found the following injuries: (cid:28)Abrasion present in left eye & cheek. It lacerated wound in forehead in right side, size 5 cm X 2 cm & scalp deep. A lacerated wound in right pina, size 3 cm X 1 cm. Blackish bruises are present in front of neck, high up 4 numbers on left side. 1 on right side. Oval shaped Suggestive of nail Pricks. Face, forehead, right ear are blood stained. A blackish bruise present on upper part of the chest left side. (cid:29) The witness opined that death was due to asphyxia following thro ttling. He proved the post mortem report as Ext-3. In cross-examination he cla rified that the throttling was not suicidal but homicidal in nature.

09. PW-4 Dr. Pradip Kumar Barua, who at the relevant point of time w as the Senior Scientific Officer, FSL, Kahilipara, in essence testified that the sample of earth collected from the place of occurrence tallied with the one col lected from the seized long pant of the Appellant No.1 and further said the same collected from the bed room of he Appellant No.2 did match with the sample obta ined from the sandals of the deceased. In the cross-examination however this wi tness conceded that he had not compared the two samples collected from the place of occurrence.

10. PW-5 Musstt. Arifa Begum, mother of the deceased while reiterati ng the version of her husband, PW-1 about the incident of quarrel in the afterno on of the date of occurrence did mention that the accused-appellant No.2 thereaf ter threatened to teach their daughter (Jesminara) a lesson later in the night. She confirmed that after the deceased had gone missing, her dead body was even tually found in the back side of the mosque at mid night. In cross-examination, she clarified that there was no past incident of any quarrel between the accuse d-appellants and them. She also confirmed that the Appellant No.1 was present a t the place of occurrence guarding the dead body at night and later at the buria l thereof.

11. ion does not call for any dilation. PW-6 Md. Aminul Ali is a reported witness and therefore his vers

12. PW-7 Shri Narayan Patangia, the Investigating Officer, proved th e FIR, Ext-1 and also narrated the steps taken by him in course of the investiga tion. He proved amongst others the seizure of the sandals of the deceased. He also deposed to have sent the sample of the earth collected from the place of oc currence as well as the living room of Appellant No.2 to the Forensic Science La boratory, Kahilipara, Guwahati for chemical analysis along with one bed sheet an d long pant of the Appellant No.1. In cross-examination, this witness amongst o thers disclosed that the sinffer dog applied by the police however did not indic ate anything against the appellants vis-à-vis the offence.

13. The evidence on record does not admit of any doubt that a minor girl aged about 9 years had been done to death. There is also no reason to disbe lieve the medical opinion that the death was homicidal. Noticeably, however the re is no eye witness to the incident. The two incriminating circumstances again st the accused-appellants are (1) the incident of quarrel involving his minor so n and the deceased in the afternoon of the date of occurrence and (2) the presen ce of earth/mud collected from the place of occurrence in the living room of the Appellant No.2 as well as on the trouser of the Appellant No.1. Both the appell ants to reiterate have denied their involvement in the incident in course of the ir examination U/s.313 Cr.P.C. Reading between the lines, the evidence of PW-9 demonstrates tha 14. t at the time when the deceased was on her way back home, the Appellant No.1 was present in the marriage house. There is however no evidence with regard to the whereabouts of the Appellant No.2 at that point of time. This ipso facto howev er is not enough to irrefutably prove her complicity in the offence. There is n o evidence forthcoming to the effect that the deceased and the appellants or any of them had been last seen together immediately before the point of time when t he incident could have occurred or before the detection of the dead body in the field behind the mosque. For whatever worth, the sinffer dog used by the investi gating agency also did not inculpate the accused-appellants. In the face of the evidence of PW-5, the mother of the deceased that since the d etection of the dead body and the burial thereof, the Appellant No.1 was continu ously present at the place of occurrence does raise the possibility of his carry ing the soft earth from the place of occurrence in his long pant and also to the living room of the Appellant No.2, his sister. In absence of any evidence to t he contrary it is safe to conclude that the appellants being brother and sister were living in the same house. In the above view of the matter, on a totality of the considerations as narrated hereinabove, we are of the unhesitant opinion th at the prosecution has failed to prove the charge against the appellants beyond all reasonable doubt. The legal proposition laid-down by the Apex Court in ASHI SH BATHAM Vs. STATE OF MADHYA PRADESH (Supra) to the effect that mere suspicion , however strong or probable, it is no substitute of the legal proof required to substantiate the charge of commission of a crime does not require reiteration. The impugned judgment is interfered with. The appeal is allowed. ted in any other case. The appellants would be set at liberty forthwith, if are not wan