Judgment · High Court · 2012

eck. (ii) As regards the occurrence of abduction of the daughter of PW1 and PW2, an Ejahar (Ext.3) was lodged, at Patharkandi Police Station, by PW2. Treating th e said Ejahar as First Information Report (FIR), Patharkandi Police Station Case No.118/2000, under Sections 457/366A IPC, was registered and the dead body was recovered, as mentioned above. Police visited the place of occurrence, held inqu est over the said dead body and the same was also subjected to post mortem exam ination, which revealed that X had been strangulated to death and, thus, her dea th was homicidal in nature. Police, in course of time, arrested accused Jafarudd in, i.e., the appellant in Criminal Appeal (J) No.83/2005, and accused Ataur Rah man (since absconder) on 25.07.2000. Both the accused were taken into remand and , on being produced, again, on 28.07.2000, in the Court of the Chief Judicial Ma gistrate, Karimganj, their confessional statements were recorded, on 28.07.2000 itself, by the Sub-Divisional Judicial Magistrate (Sadar), Karimganj, and the sa id confessional statements revealed that X had been subjected to gang rape befor e she was killed. (iii) On completion of investigation, a charge-sheet, under Sections 457/366A/ 376(2)(g)/302/201/149 IPC, was laid against five accused persons, namely, Ataur Rahman, Ekram Ali (i.e., the appellant in Criminal Appeal No.101/2005), Kabirudd in (since declared juvenile), accused Sahabuddin and Jafaruddin (i.e., the appel lants in Criminal Appeal No.83(J)/2005). 3. At the trial, when charges, under Sections 458, 366A, 376(2)(g), 302, 20 1 read with Section 149 IPC, were framed against all the accused aforementioned, except accused Ataur Rahman, who had absconded, all the remaining four accused pleaded not guilty thereto. 4. In support of their case, prosecution examined altogether 9 (nine) witne sses. The learned trial Court also examined one witness as a Court witness. The accused were, then, examined under Section 313 Cr.PC and, in their examinations aforementioned, they denied that they had committed the offences, which were all eged to have been committed by them, the case of defence being that of denial. N o evidence was adduced by the defence. However, having found the accused, who had faced the trial, guilty of th 5. e offences, which they stood charged with, the learned trial Court convicted the m accordingly and passed sentences against them as mentioned above. Aggrieved by their conviction and the sentences passed against them, the convicted persons h ad preferred these appeals, one of the appellants being Kabiruddin, who was sinc e found juvenile, and his case was remanded for being dealt with in accordance w ith Juvenile Justice (Care & Protection) Act, 2000, and, out of the remaining tw o appeals, one, namely Criminal Appeal No.101/2005, is by the appellant, Ekram A li, and the other appeal, namely, Criminal Appeal No.83(J)/2005, is by accused-a ppellant Jafaruddin and his co-appellant, Sahabuddin, who, during the penedncy o f his appeal, absconded and has since been an absconder. 6. We have heard Mr. K. Agarwal, learned counsel for the accused-appellant, Ekram Ali, in Criminal Appeal No.101/2005, and Mr. B. Chakraborty, learned amic us curiae, in Criminal Appeal No.83(J)/2005, on behalf of accused-appellant, Jaf aruddin. We have also heard Mr. D. Das, learned Additional Public Prosecutor, As sam. Before entering into the discussion of the oral evidence, which the pros 7. ecution relied upon, it is, in the context of the facts of the present case, nec essary to, first, take note of the medical evidence on record. It may be noted, in this regard, that the doctor (PW6), who had, admittedly, conducted, on 24.07. 2000, post mortem examination on the dead body of X, daughter of PW1 and PW2, fo und as follows: (cid:28)External appearance:- The deceased was found wearing a blouse in the upper part of the body and covered with a lungi in the lower part. The body was emitting v ery offensive smell. Epidermis all over the body were found separated. Matured m aggots were crawling all over the body. The soft tissues of the scalp and head f ound missing along with soft tissues in the upper part neck on back side close t o scalp exposing upper cervical spines. The soft tissues of the right upper limb as a whole, right lower limb as a whole were missing exposing the bones. There was a small opening in the right side of the lower abdomen above inguinal ligame nt and on left side close to the pubis found, of which the margins were eaten up by maggots exposing peritoneal cavity. On examination of the neck:- A gamosa with a fixed knot found firmly tight in th e middle part of the neck in a horizontal place completely encircling the neck a nd the knot remaining over right anterolateral side. The soft tissues above and below the ligature were decomposed and swollen. Underneath this ligature found a nother ligature by a handkerchief in the same position and plane with a fixed kn ot located in the midline at the front of the neck. After removing the ligature materials the tissues of the neck with a width of 2 cm showed pressure abrasions with smooth margins and hardening of the tissues underneath the ligature mark. On dissection the inner surface of this ligature mark showed dried, hardened and parchmentised like appearance and the rest of the tissues in the neck were foun d decomposed. On examination of the cranium and spinal canal:- Scalp, skull and vertebrae were found intact with decomposed membrane and brain and spinal cord. On examination of thorax:- Ribs and cartilages were found healthy and other foun d decomposed. On examination of abdomen:-Abdomental examination showed decomposed visceras and soft tissues. On examination of genitals:- External genitals found decomposed. The vaginal can al otherwise/found health except the other part of the vulva which was eaten up by maggots. Uterus was empty and nulliparous. (cid:29) 8. In the opinion of the doctor (PW6), death was caused due to strangulatio n by ligature, which were ante mortem and homicidal in nature, and the approxima te time since death being five to ten days. Apart from the fact that the findings of the doctor and his opinion, wit 9. h regard to the nature of injuries, which had been found on the said dead body, and the cause of death of the deceased, had not been in dispute at the trial, we , too, do not find anything inherently improbable or incorrect in the evidence o f the doctor. We have, therefore, no hesitation in concluding that X was put to death by strangulation and her death was homicidal. 10. Bearing in mind what has been indicated above, when we come to the evide nce of PW1, mother of X, we notice that according to her evidence, on the night of the occurrence, when she was sleeping with her daughter, X, on the same bed, she heard the sound of opening of the bamboo door of their house, she woke up an d saw, in the light of the burning hurricane lamp, three accused, Ekram Ali, Sah abuddin and Kabiruddin, entering into her house and she could also hear some oth er people present outside her house. It is in the evidence of PW1 that the said three accused forcibly dragged her daughter, X, from the bed and, despite resist ance offered by her, her daughter was dragged away and, at that time, her daught er was 14 or 15 years old. It is also in the evidence of PW1 that after the accu sed persons had left, she informed her husband (PW2), who was also present in th e said house, about their daughter, X, having been forcibly dragged away. Therea fter, according to the evidence of PW1, they (PW1 and PW2) raised hue and cry, t heir neighbours came and gathered at their house and, after 3 or 4 days, her sai d daughter’s dead body was found lying naked in the nearby jungle and around her neck a handkerchief and also a gamocha was found tied.

#11. Notwithstanding the fact that PW1 has denied that she did not mention, i n her statement made before the police, the names of Ekram, Sahabuddin and Kabir uddin, the Investigating Officer (PW9) has confirmed that as far as accused Kabi ruddin and Ekram Ali are concerned, their names had not been mentioned by PW1. T he omission to mention the names of the two accused, namely, Kabiruddin and Ekra m Ali, was, undoubtedly, vital and cannot be lightly brushed aside. This turns us to hold that had accused Kabiruddin and Ekram been seen and recognized by PW1 , at the time, when her daughter, X, had been forcibly dragged away, there was n o reason for her to have omitted to mention their names in her statement recorde d by the police. 12. It is also relevant to note, according to the evidence of PW1, accused S ahabuddin, who has absconded since after filing of his appeal, was seen by her ( PW1) dragging away her daughter. We do not, in this judgment and order, express any opinion with regard to the veracity of the evidence given by PW1 as against the appellant, Sahabuddin, who has been an absconder. 13. It may be noted, with regard to the above, that though the FIR (Ext.3) d oes mention the names of accused Kabiruddin and Ekram, the fact remains that PW1 is not the informant inasmuch as she was not the one, who had lodged the FIR. T he prosecution has not asked her any question with regard to the contents of the FIR. In a situation, such as, the present one, we deem it highly unsafe to hold that PW1 had seen accused Kabiruddin and Ekram Ali at the time, when the allege d abduction of her daughter, X, had taken place. 14. Coming to the evidence of PW2, it is noticeable that we have mentioned, while discussing the evidence of PW1, that she (PW1) claimed to have reported th e occurrence to her husband (PW2). When the previous statement of PW1 does not d isclose the names of accused Kabiruddin and Ekram Ali, the evidence of PW2 canno t improve the case of the prosecution, though we find that PW2 has mentioned tha t PW1 woke him up and told him that accused Sahabuddin, Ekram Ali and Kabiruddin had taken away their daughter, X, by breaking open the door of their dwelling h ouse. 15. It is in the evidence of PW2, same as PW1, that they raised hue and cry, their neighbours assembled at their house. Strangely enough, neither PW1 nor PW 2 claims that they mentioned the names of any of the accused to their neighbours . This apart, PW2 has deposed that he went out to search his daughter, but even after making search within an area of 1 (one) kilometer, he did not find any clu e about his daughter’s whereabouts. PW2 has also conceded that he had not raised any hue and cry during search nor did he say anything about the abduction of hi s daughter to anyone. This admission of PW2 belies the earlier evidence of PW1 a nd PW2 that they had raised hue and cry and that their neighbours had come to th eir house and they reported to their neighbours about the occurrence. 16. Thus, while in the examination-in-chief, PW2 claims that his neighbours came, his cross-examination indicates that he never revealed to his neighbours t he names of anyone as a person, who had abducted his daughter. This piece of evi dence, which none other than PW2 has himself given, further weakens the evidence of PW1 that she had recognized the accused persons, who had forcibly dragged a way her daughter, X. 17. When we turn to the evidence of PW3, we notice that according to his evi dence, on hearing hue and cries raised by his neighbours, PW1 and PW2, he went t here and he was told that their daughter, X, had been abducted from inside their house, whereupon they conducted a search in this regard.

#18. It is noteworthy that PW2 has clearly stated that he had not associated himself with the search. This apart, PW3 claims that during search, he had seen accused Sahabuddin and Ekram Ali running away, but the investigating officer (PW 9) has confirmed that no such statement was made during the course of investigat ion by PW3. Thus, when the occurrence was freshen in the mind of PW3, he did not men 19. tion, in his statement recorded by the police, that he had seen, during the sear ch, accused Sahabuddin and Ekram running away. The evidence of PW3, therefore, t hat he had seen Sahabuddin and Ekram Ali running away cannot be believed at all. So far as PW4 is concerned, his evidence is that one day, on seeing that 20. many people were going towards the house of PW3, she, too, went there and found , on arriving there, apart from police personnel, accused Ataur Rahman and Jafar uddin and that the said two accused had confessed to have abducted the daughter of PW1 and PW2, committed rape on her and also killed her and threw her dead bod y. Suffice it to point out, while considering the evidence of PW4, that since th e confessions were allegedly made by the two accused, namely, Ataur and Jafarudd in, who were in police custody, such confession, even if made by them, the same was inadmissible in evidence. In this regard, it is noteworthy that even PW3 has claimed that the said two accused had made confessions to the police. This part of the evidence, which has been treated as extra-judicial confession of the sai d two accused, was glaringly inadmissible in evidence as already indicated herei nbefore. As far as PW5, another neighbour of PW1 and PW2, is concerned, we may po 21. int out that though he claims, in his evidence, that on the night of the occurre nce itself, PW2 came to his house and informed him (PW5) that about an hour ago, accused Sahabuddin, Ekram and Kabiruddin had forcibly abducted his daughter, X, from inside his house, the investigating officer (PW9) has confirmed that no su ch statement was made by PW5 at the time, when his statement was recorded during the course of investigation. Thus, even the evidence of PW5, implicates the acc used Sahabuddin, Ekram Ali and Kabiruddin, the same cannot be safely relied upon , when his previous statement omits to mention the names of these three accused. 22. What is, however, relevant, in the evidence of PW5, is that he has also supported the evidence of PW1 and PW2 that the dead body of the said daughter of PW1 and PW2 had been found in the jungle. As regards the confessional statement s, which accused Ataur Rahman and Jafaruddin had allegedly made, suffice it to r eiterate that these confessions having been allegedly made by the said two accus ed, while in police custody, were inadmissible in evidence and could not have be en relied upon. 23. Coupled with the above, yet another incriminating circumstance against a ccused Ataur and Jaffaruddin is that they had made judicial confessions before t he Sub-Divisional Judicial Magistrate (Sadar), Karimganj. We may note, in this r egard, that since accused Ataur is an absconder, though he preferred an appeal, we express no opinion with regard to the judicial confession, which is claimed t o have been made by accused-appellant, Ataur Rahman. However, as regards the judicial confession, which the accused-appellant 24. , Jaffaruddin, has made, it is rudimentary for the Court to determine, in order to rely upon a judicial confession, whether the confession is voluntary and if t he confession is found to be voluntary, the Court has the duty to, then, determi ne if the confession, which the accused made, was or was not true. Unless, there fore, a confession is found to be voluntary and true, the confession cannot be r elied upon. 25. In the case at hand, accused Jaffaruddin was, admittedly, arrested on 25 th of July, 2000, and he had been taken into custody by the police and he was re produced, on 28.07.2000, before the Chief Judicial Magistrate, Karimganj. Thus, the accused-appellant, Jaffaruddin, remained in custody of the police for three days and yet PW8, the Sub-Divisional Judicial Magistrate, who recorded the confe ssional statement, gave the accused-appellant, Jafaruddin, barely 3 and ‰ hours time for reflection. This apart, PW8 had not even assured accused-appellant, Jaf aruddin, that even if he chose not to make confession, he would not be handed ov er to the police or given into the custody of police. Above all, the evidence of PW8 shows that during the period of reflection, the accused-appellant, Jafarudd in, was left in the care and custody of a police constable. 26. The series of circumstances, which we have discussed above, eloquently s peaks of the lack of care with which suffered recording of judicial confession o f the accused-appellant, Jafaruddin. In such a fact situation, it is impossible to confidently hold that the judicial confession, which the accused-appellant, J afaruddin, had made, was voluntary one. 27. Apart from the evidence, which we have discussed above, there was, admit tedly, no other evidence on which conviction of the accused-appellants could hav e rested. 28. Because of what have been discussed and pointed out above, we are of the considered view that the prosecution had failed, and failed miserably, to prove its case beyond reasonable doubt against the two accused-appellants, Ekram Ali and Jafaruddin, and, in the face of such evidence on record, they could not have been convicted of any of the offences with which they stood charged with. At an y rate, they ought to have been given, at least, the benefit of doubt and acquit ted. 29. As far as accused-appellant, Sahabuddin, is concerned, he has, admittedl y, absconded after about three years of pronouncement of the impugned judgment. In such circumstances, we are of the firm view that his appeal cannot be heard. 30. We, therefore, direct the Registry to put the appeal of the accused-appe llant, Sahabuddin, for hearing as and when accused-appellant, Sahabuddin, is arr ested. For the purpose of apprehending the accused-appellant, Sahabuddin, all ne cessary steps, as may be required by law, shall be taken by the learned Sessions Judge, Karimganj, and, on his arrest, necessary information shall be given by t he learned Sessions Judge, Karimganj, to this Registry so that further action, i n accordance with law, can be taken as regards the appeal of the accused-appella nt, Sahabuddin, and his appeal can be heard by this Court. 31. In the result and for the reasons discussed above, we allow the appeal o f accused-appellant, Ekram Ali, namely, Criminal Appeal No.101/2005. We also all ow Criminal Appeal No.83(J)/2005 to the extent that the same relates to accused- appellant, Jafaruddin. We accordingly set aside the conviction of these two appe llants, namely, Ekram Ali and Jaffaruddin, and the sentences, which have been pa ssed against them, by the impugned judgment and order. We hold the two appellant s, Ekram Ali and Jafaruddin, not guilty of the offences, which they had been cha rged with, and acquit them of the same under benefit of doubt. 32. Let the accused-appellants, Ekram Ali and Jafaruddin, be set at liberty, forthwith, unless they are required to be detained in connection with any other case.

#33. ance rendered by him. Let the learned amicus curiae be paid a sum of Rs.5,000/- for the assist

#34. Send back the LCR.