High Court · 2012

We have heard Mr P Kataki, learned counsel for the accused/ appe

3. One Anowar Ali on 11.2.99 lodged an ejahar with the Officer-in-C harge, Bagribari Police Station to the effect that at about 10.30 a.m. of that d ay while he along with the accused/ appellant together with Jakir Hussan and his sister Jahera Bibi were proceeding towards the cultivation field for the purpos e of necessary measurements and demarcation, the appellant suddenly assaulted Ja kir with a dagger in his abdomen and as he was seriously injured his sister Jahe ra attempted to come to his rescue and, in the process, the accused/ appellant a ssaulted her with the same dagger in her chest, breast and abdomen killing her a t the spot.

4. On the basis of the aforesaid FIR, Bagribari P.S. Case No. 18/99 was registered under Section 326/302 IPC and following the investigation charge sheet was laid against the accused/ appellant. Charge against him was also frame d under Section 302 IPC to which he pleaded ’not guilty’. At the trial, the pros ecution examined eleven witnesses including the doctor who had performed the pos t mortem examination on the dead bodies as well as the Investigating Officer. T he accused/ appellant was examined under Section 313 Cr.P.C. He, however, declin ed to adduce any evidence and stood by his denial in course of his examination u nder Section 313 Cr.P.C. The conviction and sentence followed.

5. Before analyzing the rival arguments, it would be appropriate at this stage to have a brief survey of the evidence on record. P.W.1, Anowar Ali, the informant stated on oath that he had learnt from the nearby people that Jak ir Hussain and Jahera Bibi had been killed by the accused/ appellant in the morn ing hours of the date of occurrence when he (witness) was in his agricultural fi eld. According to this witness, on receiving this information he rushed to the p lace of occurrence and found Jahera lying dead on the ground by the side of the road and Jakir injured. This witness stated that the injured Jakir then told him that he had been injured by the accused/ appellant and that Jahera Bibi had als o been killed by him. As the injured Jakir requested the witness to assist for h is treatment, he (witness) along with others removed him to Bagribari Police Sta tion first and then to the Bagribari Civil Hospital, whereafter, he lodged the F IR with the police. According to this witness, the police thereafter reached the place of occurrence and conducted the inquest. He proved the FIR as Exhibit-1 a nd his signature thereon as Exhibit-1(1). The witness confirmed that the injured Jakir thereafter succumbed to the injuries at Dhubri Civil Hospital during the same night. In cross-examination, this witness admitted of not having seen t he occurrence himself. He stated further that the FIR was lodged on being asked by the police and that he accordingly signed the same as well. He further admitt ed of not remembering exactly as to whether the injured Jakir had told him that he was injured by the accused/ appellant. He also admitted of not remembering wh ether he had stated before the police that the injured Jakir had told him that h e was injured by the accused/ appellant and Jahera was also killed by him. He st ated further that the injured Jakir at the relevant point of time was not in a p osition to speak well when he (witness) met him for the first time. This witness stated further that at the place of the occurrence when he was present about 10 /12 persons had assembled there but he could not recall their names.

6. P.W.2, Jaida Bibi who is the step mother of the accused/ appella nt and the biological mother of the deceased is a reported witness and, therefor e, her testimony is not of much relevance. P.W.3, Hazera Bibi had been declared hostile by the prosecution. At the trial she stated on oath that she learnt abou t the death of Jakir Hussain and Jahera Bibi from others. She stated that at th e time of the occurrence she was in her house and had heard a commotion but she did not come out to enquire about the cause thereof. In her cross-examination by the prosecution as permitted by the learned Trial Court, she was confronted with the statement said to have been mad e by her before the police to the effect that at about 10/10.30 a.m. on the date of the occurrence hearing hue and cry she had come out to the courtyard and had seen a ’Marpit’ between Jakir Hussain and his step brother Nepuddi (accused/ ap pellant) in the jute field on the north of her house. She denied to have made a statement that at a distance of about 500 yards she saw Jakir falling on the gro und and that when Jahera came forward for his rescue, she was also injured and s he as well fell down. She denied to have stated before the police that she did not see with what weapon they were injured. In cross-examination by the defence this witness admitted that t he accused/ appellant was not a resident of her village and that, therefore, he was not familiar with her.

7. P.W.4, Surat Ali Mandal is a witness to the inquest and he prove d the inquest report (Exhibit-2) with his signature thereon as Exhibit-2(1). P.W .5, Mamtaz Bibi, wife of the deceased Jakir too was declared hostile. On oath, s he stated that her husband Jakir died about 3 years from the date of her deposit ion and that on the date of the occurrence at about 10 a.m. she had heard hue an d cry from outside her house when she was sleeping with her new born baby. She d eposed further that hearing the hue and cry, she came out from her room and saw her husband Jakir lying injured in his abdomen in a paddy field near the house. According to this witness, seeing her husband in such an injured condition she f ell unconscious. She, however, stated that her injured husband later on died in the hospital. She affirmed further that the deceased Jahera Bibi was the sister of her husband. In her cross-examination by the prosecution, she denied to have made any statement to the police to the effect that on the date of the incident at about 10 a.m. while she was attending to her household works and her sister-i n-law Jahera was grinding paddy with the ’Dheki’, her (witness) brother-in-law i .e. the accused/ appellant who was a step brother of her husband fixed a boundar y mark in the courtyard while he (her husband) was absent from home. She denied to have made a statement before the police that when her husband came home and s aw the boundary mark being put by the accused/ appellant, a quarrel followed bet ween the two, in course whereof, the accused/ appellant chased her husband with a dagger in his hand and stabbed in his abdomen, as a result of which he fell do wn on the ground. She also denied to have made a statement to the police that as she raised alarm, her sister-in-law Jahera who was grinding paddy nearby came f orward whereupon the accused/ appellant also stabbed her in her chest and abdome n as a result whereof she died at the spot. She denied further to have stated be fore the police that at the time of the occurrence her sister-in-law Aklima Khat un was present in the courtyard of the house and that she had seen the occurrenc e. She denied as well the statement put to her that she raised alarm whereupon t he accused/ appellant ran away by throwing the dagger in the wheat field. She de nied to have made a statement before the police to the effect that on being poin ted out by her, the dagger used by the accused/ appellant was seized by it and t hat she as a seizure witness had put her signature on the seizure list. When the seized dagger (Material Exhibit-1) was shown to her, she denied to have pointed it out to the police for seizure. In her cross-examination by the defence, this witness deposed th at she did not know as to how her husband Jakir and her sister-in-law Jahera had met their death.

8. P.W.6, Aklima Khatun who at the time of the occurrence was about 10 years old, is the step sister of the accused/ appellant and real sister of t he two deceased persons. Before examining her on oath the learned Trial Court, as her deposition would disclose, had asked searching questions to ascertain as to whether she had attained sufficient maturity to discern the right from the w rong and the truth from the falsehood and on being satisfied that she had the re quired capacity and understanding, administered her oath and recorded her statem ent. This witness stated that on the date of the occurrence at about 9 a.m. she was playing in the compound of her house and her sister-in-law Momtaz (P.W.5) wa s inside the house. According to the witness, at that time the deceased Jahera w as grinding paddy also in the compound. She stated that when her brother Jakir H ussain was coming by the road towards the house and was about 15/20 arms length therefrom, the accused/ appellant assaulted him with a dagger in abdomen for whi ch she (witness) raised alarm. She stated that on hearing her cries her sister-i n-law Momtaz Bibi went to save her husband Jakir on which the accused/ appellant pushed her away. According to this witness, Jahera then ran towards the injured on which the accused/ appellant also assaulted her with the dagger on her chest and abdomen thrice whereupon she (Jahera) fell down and died at the spot. At t his the accused/ appellant fled from the place of occurrence, whereafter, other persons from the neighbourhood assembled. In cross-examination, she admitted of not having studied in scho ol and thus having no clear concept of time. On being asked, she could not recal l her age at the time of the occurrence. She admitted to have been brought to th e Court by her mother. She also failed to remember the game that she was playing at the time of the occurrence. She could not mention the distance of the wheat field from her house but reiterated that the incident had taken place on the roa d near the house. She stated that at the time of the occurrence none except Momt az Bibi (P.W.5) and Hajera Bibi (P.W.3) were present. She denied the suggestion of the defence of not having made this statement before the police in course of her examination.

9. em examination on the dead bodies found the following injuries thereon: P.W.7, Dr. Tapan Kumar Bhowmick who had performed the post mort Jahera Bibi (cid:28) A female dead-body of around 28 years of age. Rigormortis was found. Eyes were f ound closed. Mouth was closed and face was found pale. There was a Stab Injury o n the lateral side of the left chest at 5th Inter-Costal Space at anterior axill ary line. The wound was - 1 (cid:29) x ‰ (cid:29) x 3 (cid:29) and it was placed obliquely. Examination of Thorax revealed blood filled left pleural cavity. The trachea was shifted tow ards the right and the right lung was compressed and the left lung found collaps ed. Pericardium was filled with blood and the present Stab-Injury. Examination o f the heart reveals left ventricular Stab-Injury. A male deadbody of around 32 years of age. Eyes were half open, mouth was half o pen, face was found pale, rigor mortis found present. Injures :- There was a stab injury in the abdomen in infra umbilical region of s ize 3 (cid:29) x 1 (cid:29) with extrusion of intestines. Anal orifice-unilateral healthy. A stab injury in infra 2 (cid:29) below the umbilical i Jakir Hussain njury filled with blood and intestinal contents. Small intestine present. Multip le injuries with extrusion of intestinal contents. Few injured loop of small int estine came out of abdominal wound. The injuries were ante mortem in nature, and in my opinion, the death was due to shock and haemorrhage as a result of injuri es sustained. (cid:29). This witness affirmed that the injuries were ante mortem in natu re and that the death had occurred due to shock and haemorrhage as a result ther eof. He proved the post mortem reports, Exhibit-3 and 6. He opined specifically vis-à-vis Jahera Bibi that the injuries could be caused by the impact of the thr ust of a dagger. He further mentioned injuries to be stab injuries in clear term s vis-à-vis deceased Jakir Hussain.

10. P.W.8, Samsul Haque expressed his ignorance about the manner in which the deceased died. P.W.9, Safiur Rahman is a witness to the seizure of the dagger by the police Exhibit-4 on which he proved his signature, Exhibit-4(1). According to this witness, the police seized the dagger from the father of the d eceased Jakir. He identified the seized dagger as Material Exhibit-1 in Court.

11. P.W.10, Jaleswar Roy who at the relevant point of time was a Con stable in the relevant Police Station proved the command certificate by which he was directed to accompany the dead body of Jahera from Dhubri Civil Hospital to the mortuary for post mortem examination. P.W.11, Sukumar Dutta, the Investigat ing Officer detailed the steps taken by him in course of the investigation and p roved the FIR, Exhibit-1 and the inquest report, Exhibit-2. He also proved the s eizure of the dagger vide seizure list, Exhibit-4 from the place of occurrence o n being shown by Momtaz Bibi (P.W.5). In cross-examination, this witness with reference to the Case Di ary stated that P.W.1 Anwar Ali had not stated before him to have seen the accus ed/ appellant assaulting Jakir and Jahera. He, however, affirmed that P.W.6, Akl ima Khatun had not disclosed to him that on having raised hue and cry Momtaz Bib i had rushed to the place of occurrence whereupon the accused/ appellant had pus hed her. This witness also admitted of not having taken steps to ascertain the a ge of P.W.6, Aklima Khatun by obtaining necessary school/ birth certificate. He, however, stated that the wheat field was located at a distance of about 200 yar ds from the house of P.W.6. He admitted further of not having sent either the ea rth from the place of occurrence or the dagger seized by him in course of the in vestigation for forensic/ serological test.

12. The accused/ appellant in course of his examination under Sectio n 313 Cr.P.C. was confronted with the incriminating statements made by the prose cution witnesses including P.W.6 and he denied wholly the correctness thereof. H e, however, declined to examine any witness in defence.

13. Mr Kataki has urged with reference in particular to the FIR and the evidence at the trial that the prosecution having failed to prove the charge against the accused/ appellant, he is entitled to be acquitted. According to hi m, P.W.1, Anowar Ali, the informant was wholly unreliable as the version in the FIR was inconsistent with his testimony at the trial. Apart from contending that there is no admissible evidence with regard to the dying declaration said to ha ve been made by the injured Jakir, the learned counsel urged that the testimony of P.W.6, a child witness, being unreliable on material particulars, cannot form the sole basis for conviction. He submitted further that it is apparent from th e narration of P.W.5, Momtaz Bibi that P.W.6 cannot be an eye witness, her prese nce at the place of occurrence not having been mentioned by her. Mr Kataki has a rgued that not only the prosecution has failed to explain as to how the dagger s upposed to be the weapon of assault could be seized from the house of the deceas ed Jakir, in absence of any serological/ forensic test, the same can by no means be connected with the offence. Moreover, the father of the deceased Jakir not h aving been examined, according to the learned counsel, the charge against the ac cused had remained unproved. This is more so in view of the apparent inconsisten cy between the ocular evidence of P.W.6 and the findings in the post mortem exam ination in particular. In support of his arguments, Mr Kaktaki has placed relian ce on the decision of the Hon’ble Apex Court in Acharaparambath Pradeepan & Anr -vs- Stgate of Kerala, (2006) 13 SCC 643.

14. Mr Das in reply has urged that minor inconsistencies in the evid ence of P.W.1 and the version provided by him in the FIR is of no consequence at all and it does not affect the prosecution case in its merit. According to Mr D as, P.W.6, the child witness is wholly believable and that she having proved the charged against the accused/ appellant, the learned Trial Court was justified i n convicting him under Section 302 IPC. According to the learned Addl. Public Pr osecutor, inconsistency in the number of injuries found on the dead body with th ose of the assaults as mentioned by P.W.6, in view of her clear and categorical statement on other material particulars, is wholly insignificant. As the accused / appellant has been proved to be guilty of double murder, the present impugnmen t lacks in merit and ought to be dismissed, he urged.

15. We have carefully examined the evidence on record as well as the arguments advanced. That Jakir Hussain and his sister Jahera Bibi had met a hom icidal death is clearly borne out by the records. That the death had occurred fr om the incised injuries on the vital parts of their body i.e. chest and abdomen has been proved beyond doubt by P.W.7, Dr. Tapan Kr. Bhowmick who had performed the post mortem examinations on them. He has opined in clear terms that the inju ries on Jahera Bibi could be caused by the impact of the thrust of a dagger. Inc identally, a dagger (Mat. Exhibit-1)had been seized by the police from the house of the father of deceased Jakir Hussain as stated by P.W.11. Exhibit-4, the sei zure list of the dagger, however, mentions that the same was seized by the polic e from the wheat field. Be that as it may, this dagger had not been sent for for ensic examination.

16. On a reading of the evidence of P.W.1 as a whole, we are not inc lined to accept that any dying declaration had been made by the deceased Jakir b efore him. Noticeably, the prosecution has not examined any other witness to pro ve that any such statement had been made by the aforenamed injured before his de ath. The evidence of P.W.3, Hazera Bibi and P.W.5, Momtaz Bibi who had been decl ared hostile by the prosecution read as a whole also does not prove the charge b eyond all reasonable doubt. The evidence of P.W.8,9, 10 and 11 does not reflect on the actual acts of assault. P.W.6, the star witness of the prosecution admitt edly at the time of the occurrence was a child aged about 10 years. To reiterate , the learned Trial Court before recording her evidence had taken necessary care and caution to determine her capacity of understanding and recollection of the incident which she claimed to have seen. The evidence of this witness read as a whole, according to us, appear to be consistent, cogent and convincing. Though considerable emphasis has been laid by the learned counsel for the appellant on her tender age and lack of understanding, in absence of any overwhelming and per suasive evidence on record to discard her testimony on that ground or on the gro und of any inimical or hostile orientation of hers, we are inclined to accept th e same vis-à-vis the occurrence and the charge against the accused/ appellant. True it is that this witness is the step sister of the accused/ appellant and th e real sister of the deceased and there are traces as well of claims and counter -claims on the landed properties of the brothers, however, the clarity with whic h this witness had narrated the incident and the consistency that she has mainta ined inspite of a grueling cross-examination, we are convinced about the truthfu lness of her version. Moreover, the Trial Court having tested her intellectual c apacity, maturity of understanding as well as her demeanour at the trial, in abs ence of any convincing material to the contrary, we are not inclined to take a d ifferent view on the veracity of her statement.

17. As it is, the Hon’ble Apex Court in Acharaparambath Pradeepan ( supra) had not in absolute terms laid down any proposition to discard per se the version of a child witness, the word of caution being one to adhere to the rule of prudence in analyzing such a testimony. The contextual facts of the decision disclose that their Lordships therein were in seisin of the evidence of child w itnesses aged about 7 to 11 years which on due assessment was found to be trustw orthy. This decision, therefore, as such does not, in the facts and circumstance s of the case, advance the plea of innocence of the accused/ appellant. The omis sion on the part of P.W.5, Momtaz Bibi to mention the presence of P.W.6 in the c ourtyard at the time of the occurrence and the seizure of the dagger from the ho use of the father of the deceased Jakir Hussain, in our view, in the face of oth erwise clinching evidence of P.W.6 does not demolish the case of the prosecution . As it is, any defect or deficiency in the investigation of a case ipso facto w ould not enure to any benefit of the accused if the charge against him is otherw ise proved on the basis of the evidence on record.

18. The appeal lacks in merit and is dismissed.