High Court
Case Details
Crl.A. 82/2011 BEFORE THE HON’BLE MR.JUSTICE I.A. ANSARI THE HON’BLE MR. JUSTICE P.K. MUSAHARY By judgment and order, dated 18.04.2011, passed, in Sessions Case No.94/2008, by the learned Sessions Judge, FTC, Barpeta, the two accused-appellants, namely, H azera Khatun and Abdul Gafur, stand convicted under Section 302 read with Sectio n 34 IPC and each of them has been sentenced to suffer imprisonment for life and pay fine of rupees two thousand and, in default of payment of fine, suffer simp le imprisonment for a period of two months. 2. (i) The prosecution’s case may, in brief, be described as under: On 07.06.2002, at about 9 pm, accused, Abdul Gafur, came to the house of Abdul Rahman, brother of Abdul Razak (since deceased) and told him (Abdul Razak ) that he (Abdul Razak) was to accompany him in order to sort out the monetary t ransaction, which they had. Though Abdul Razak’s mother tried to stop Abdul Raza k, Abdul Razak left the house, promising to return soon; but he never returned h ome. On a search being made to find out where Abdul Razak was, the members of hi s family found Abdul Razak hanging by means of a saree from one of the beams in the house of accused Hazera, the saree having a knot on his neck near his right ear. Having seen the dead body of Abdul Razak, his brother, Samsul (PW2), lodged a written Ejahar at Howly Police outpost. Having made, in this regard, an entry into the General Diary of the said police outpost, the investigating officer (P W6) forwarded the Ejahar to Barpeta Police Station, where Barpeta Police Station Case No.239/2002, under Sections 302/34 IPC, was registered against accused Haz era, Abdul Gafur and five others. (ii) During investigation, police visited the place of occurrence, held inque st over the said dead body and prepared an inquest report (Ext.2). Razak’s dead body was also subjected to post mortem examination leading to post mortem report (Ext.6). On completion of investigation, police laid charge sheet, under Sectio ns 302/34 IPC, against all the seven accused-persons, whose name had appeared in the said Ejahar.
Legal Reasoning
3. At the trial, when a charge, under Sections 302 read with Section 34 IPC , was framed against all the seven accused persons, including the present appell ants, all of them pleaded not guilty thereto. 4. In support of their case, prosecution examined altogether 7 witnesses. T he accused were, then, examined under Section 313 Cr.PC and, in their examinatio ns aforementioned, they denied that they had committed the offence, which was al leged to have been committed by them, the case of the defence being that of deni al. No evidence was adduced by the defence. 5. Having, however, found the two appellants, namely, Hazera and Abdul Gafu r, guilty of the offence committed under Section 302 read with Section 34 IPC, t he learned trial Court convicted them accordingly and passed sentence against th em as mentioned above. So far as the remaining accused were concerned, the learn ed trial Court found them not guilty of the charge and acquitted them accordingl y. Aggrieved by their conviction and the sentence, the two convicted persons, na mely, Abdul Gafur and Hazera Khatun, have preferred this appeal. 6. nd Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam. 7. While considering the present appeal, it is apposite to point out, at th e very outset, that no witness has been examined by the prosecution at the trial , who has claimed to have seen Abdul Razak being killed by any of the two accuse d-appellants. Prosecution’s case rests, admittedly, on circumstantial evidence. Considering the nature of circumstances, which have, eventually, led to the conv iction of the accused-appellants, we deem it appropriate to examine the value, i f any, of the circumstances, which, according to the learned trial Court, had be en found incriminating against the two accused-appellants. 8. With the above end in view, we come to the evidence of the doctor (PW7), who had, admittedly, conducted post mortem examination, on 0906.2002, on the de
Legal Reasoning
We have heard Mr. B.M. Choudhury, learned counsel, for the appellants, a ad body of Abdul Razak and found as follows: (cid:28)External appearance : An average built male body, not decomposed, rigor mortis present. Blackish colouration of face, lips, nails beds present. Dried up saliva seen from left angle of mouth, no fecal discharge seen. Semen found at the tip of the penis, (i) an oblique interrupted ligature mark seen high up in the neck. Knot mark is on the right side behind the ear. Skin over the mark is hard and p archmentised, cut section shows a band of white fibrous tissue at the base, no w ound or bruise mark over the body (tongue is swollen and profused against the te eth) on examination of thorax, walls, ribs etc and found healthy. Lungs found he althy and congested. Heart healthy, right side is filled with dark fluid blood a nd left side is empty vessels, healthy on examination of muscles, bones and join ts found absent. On examination on abdomen, walls, peritoneum etc found healthy and small and large intestine found healthy. Distended with partly digested food , gas and focal materials. On examination of cranium and spinal canal scalp, skull, vertebrae membrane etc are found healthy. Liver spleen and kidneys found healthy and congested organs o f generation, external and internal is found healthy intact. Semen at the tip of penis. In the opinion of the doctor (PW7), the death was due to asphyxia as a r More detailed description of injury of deceased : The ligature mark in the neck is anti mortem in nature. No other injury detected in his person. (cid:29) 9. esult of hanging. 10. In his cross-examination, however, the doctor (PW7) has clarified that h e did not find any injury on the person of the deceased except ligature mark aro und his neck, which was, as we have already pointed out above, ante mortem in na ture. 11. In no uncertain words, has deposed by the doctor (PW7), that according t o him, the case at hand was a pure case of suicidal death. In other words, the d octor (PW7) did not find any injury on the said dead body and the death, in the opinion of the doctor, was due to asphyxia as a result of hanging and hanging wa s suicidal. Unless, therefore, prosecution can show that Razak’s death was homic idal in nature, one would have no option, but to interfere with the conviction o f the accused-appellants. 12. Our quest, for an answer to the question as to whether Razak met homicid al death or not, brings us to the evidence of PW1. This witness has deposed that one day, in the morning, his niece, Momtaz, (who has not been examined as a wit ness), accompanied by two small boys, one of whom used to work as domestic help of Razak, came to his house and informed him that someone had killed Razak and k ept him hanging in the house of Matiur Rahman, husband of appellant, Hazera Khat un, Motiur Rahman having died prior to the occurrence. 13. It is in the evidence of PW1 that he went to the place of occurrence and saw Razak’s dead body hanging by means of a saree, which was tied around his ne ck, and, upon seeing the dead body, he went to Howly Police Outpost and lodged t here a written Ejahar (Ext.1). 14. In his cross-examination, PW1 has clarified that he did not reside with Razak inasmuch as Razak resided in a separate house. PW1 has also clarified, in his cross-examination, that he has no personal knowledge if Razak had been kille d by someone. 15. Bearing in mind the above evidence of PW1, when we turn to the evidence of PW2, elder brother of deceased Abdul Razak, we notice that his evidence is th at on the day of the occurrence, at about 9 pm, accused Abdul Gafur came to his house and told that Razak was required to go for sorting out the monetary transa ction and though Razak’s mother tried to prevent Razak from going, Abdul Gafur t old that Razak would return home soon, whereupon Razak went away with Abdul Gafu r and did not come back at night and, in the morning, on coming to the house of Hazera Khatun, he found Razak’s dead body hanging by means of a saree and he, th en, went to the police station and he found there 5 to 6 persons including his b rother PW1, who had lodged the FIR. 16. Notwithstanding the fact that PW2 has claimed that accused Abdul Gafur c ame to his house and told Razak that Razak as required to go for sorting out the monetary transaction and though Razak’s mother tried to prevent Razak from leav ing the house, Gafur told that Razak would return home after sometime, PW2 has c onceded, in his cross-examination, that he had come to know from his mother abou t the conversation between Gafur and Razak. Mother of Razak was not, however, ex amined at the trial. Consequently, what the evidence, given by PW2 as to what co nversation Gafur had with Razak, is nothing, but hearsay. This apart, the invest igating officer has confirmed that PW2 had not stated, when his statement was re corded during investigation, that Gafur had asked Razak to accompany him for sor ting out the monetary transaction and that Razak’s mother had tried to stop Raza k from leaving. In the face of the above material infirmities in the evidence of PW2, one cannot implicitly rely upon the claim of PW2 that accused Gafur came t o the house of Razak and told him to go with him to sort out monetary transactio n. 17. Coupled with the above evidence of PW2, the evidence of PW3, sister of A bdul Razak, is considered, it transpires that according to her evidence, on the day of the occurrence, at about 9 pm, Abdul Gafur came to their house and, for s orting out some monetary transaction, took Razak with him and though her mother had asked Razak not to go, Razak told his mother that he would come back after m aking necessary calculation, but Razak did not return at night and, in the morni ng, on the following day, she (PW3) and Md. Abdur Rahman (PW2) found Razak’s dea d body in Hazera Khatun’s house. 18. In his cross-examination, PW3 has very clearly deposed that there was no enmity between Razak and Gafur and she has also admitted that she is not aware as to where Razak was between 9 pm and till the time he (Razak) was found dead a nd that Gafur’s name had not been mentioned in the Ejahar and that it was, on th e basis of the instructions of the police, that Gafur’s name was included. This apart, the investigating officer has confirmed that while giving her statement t o the police, PW3 had not stated that on the night of the occurrence, Gafur had come to call Razak and despite Razak’s mother trying to stop Razak, Razak went a way by saying that he would come back soon. It is, thus, abundantly clear that P W3 has also no knowledge or information as to whether Razak was killed and if he was killed, who had killed him or how he was killed or he committed suicide. 19. The above discussion of the evidence on record brings us to the evidence of PW4 and PW5. 20. So far as PW4 and PW5 are concerned, they had merely seen Razak’s dead b ody hanging by means of a saree at the house of Hazera Khatun and PW5 has clarif ied, in his cross-examination, that he does not have any personal knowledge how Razak died. 21. Thus, the evidence, which we have discussed above, gives no indication a t all as to how Razak had died or who had killed him except that the doctor’s ev idence reveals that Razak’s death was suicidal in nature. In this regard, one ca nnot ignore the fact that prosecution did not dispute the findings of the doctor and/or his opinion with regard to Razak’s cause of death. We, too, do not notic e anything inherently incorrect or improbable in the evidence given by the docto r or his opinion with regard to Razak’s cause of death. Situated thus, it is well-neigh impossible to hold that Razak’s death wa 22. s homicidal in nature. This apart, there is no evidence, direct or circumstantia l, showing that Gafur was, in any way, involved in the causing of Razak’s death. No doubt, when the dead body had been found hanging inside the house of 23. accused-appellant, Musstt. Hazera Khatun, needle of suspicion points to her as t he person, who was possibly responsible for causing Razak’s death. This proposit ion is, however, not free from defects inasmuch as we cannot ignore the medical evidence on record, which shows Razak’s death as suicidal in nature. This apart, the evidence of Investigating Officer, the inquest report and also the evidence of the doctor (PW7) eloquently shows that no injury had been found on the dead body of Razak. Situated thus, though there may be suspicion that the appellant, Hazara 24. Khatun, might be involved in the causing the death of Razak, the fact remains th at suspicion, howsoever high, cannot take the place of proof, more particularly, when there is nothing in the evidence on record for the Court to confidently an d boldly hold that Razak’s death was not suicidal, but homicidal in nature. 25. Because of what have been discussed and pointed out above, we are of the considered view that the learned trial Court ought to have acquitted the two ap pellants by giving them, at least, benefit of doubt. 26.
Decision
In the result and for the reasons discussed above, this appeal succeeds. The impugned order of conviction of the accused-appellants and the sentence pas sed against them, by the judgment and order, under appeal, are hereby set aside. The accused-appellant are held not guilty of the offence under Section 302 read with Section 34 IPC and they are acquitted of the same under benefit of doubt. 27. Let the two accused-appellants be set at liberty, forthwith, unless they are required to be detained in connection with any other case. 28. Send back the LCR.