High Court
Case Details
Crl.A. 118/2013 B E F O R E HON’BLE MR. JUSTICE I A ANSARI HON’BLE DR. (MRS.) JUSTICE I. SHAH JUDGMENT & ORDER (IA Ansari, J) By the judgment and order, dated 07-03-2013, passed, in Sessions Case No . 58 of 2008, by the learned Sessions Judge, Dhubri, the accused-appellants stan d convicted under Section 302 read with Section 34 IPC and each one of the appel lants stands accordingly sentenced to suffer imprisonment for life and pay fine of Rs. 5,000/- and, in default of payment of fine, suffer simple imprisonment fo r one month with further direction that the fine shall, if realised, be paid to the family of the victim in terms of the provisions of Section 357 Cr.P.C. The case of the prosecution as unfolded at the trial may, in brief, set 2. out as under: Jalal Islam (deceased) was a trader and used to deal in leather. The people of t he locality used to send leather to Bangladesh, although most of them had no lic ence. One consignment of leather was seized by B.S.F. personnel. The accused sus pected that Jalal Islam (since deceased) had connived in the detection of the co nsignment, but Jalal Islam refused to accept the accusation. On 23-08-2007, ther e was a meeting, wherein a fine of Rs.80,000/- was imposed on Jalal. After the m eeting, Jalal returned home at around 11.30 P.M. and, on taking his meals, while Jalal was resting, the four accused persons came and took him away. At around 3 /4 ’O’ clock, Jalal was found hanging from a jackfruit tree. On an Ejhar having been lodged by Md. Akhirul Islam (P.W.1), son of the said deceased, Mankachar P. S. Case No. 263/2007, under Section 302/34 IPC, was registered against the four accused persons, who are appellants in the present case. Inquest, on Jalal’s dea d body, was held and the same was also subjected to post-mortem examination. On completion of investigation, a charge sheet, under Section 302/34 IPC, was submi tted by the Investigating Officer (P.W.8) against the four accused persons. 3. The accused persons pleaded not guilty to the charge framed against them under Section 302 read with Section 34 IPC and claimed to be tried. During the trial, altogether 9 witnesses were examined by the prosecutio 4. n. The accused persons, in their statements, recorded under Section 313 (1)(b) C r.P.C., denied the allegations levelled against them and pleaded that they were innocent. The defence, too, adduced evidence by examining one witness. The defen ce plea, as it transpires from the cross-examination of prosecution witnesses as well as from defence evidence, was that Jalal (deceased) had hbeen caught by B. S.F. personnel, beaten up and, on being released from B.S.F. camp, he committed suicide.
Legal Reasoning
There was no eye-witnesses and, in absence of direct evidence, the learn 5. ed trial Court considered the following circumstances as incriminating in nature and involving the appellants in the commission of the offence of murder: The dead body of the deceased Jalal Sk. Was found to be hanging from a j (cid:28)1. ackfruit tree and prior to some hours of the notice of aforesaid factum, he was called by the accused persons to outside of his house. 2. The post-mortem examination on the dead body of the deceased was carried out and during the said examination the P.W.9 found ligature mark on his neck s o also mark of strangulation. The aforesaid facts would clearly indicate that th e death of the deceased was homicidal in nature and it cannot be observed that t he death of deceased had resulted in from suicide. 3. M. report nor mentioned in his evidences. 4. B.S. F Personnel nabbed the lather. Accuseds told that the deceased assi sted the B.S.F. to nab the said lather. The Bichar was called in the house of Ch The P.W.9 did not indicate the exact time of death of the deceased in P. and Miah, wherein the accused imposed fine of Rs.80,000/- forcefully upon deceas ed. 5. testimonies of the P.W.1 and P.W.9. (cid:29) The aforesaid circumstances had surfaced during trail from the unshaken
Legal Reasoning
6. llants, and Mr. H. Sharma, learned Addl. Public Prosecutor, Assam. We have heard Mr. K. Bhattacherjee, learned counsel for the accused-appe 7. Learned counsel for the appellants have urged before us that there was no reliable material on record to base conviction of the appellants and even the medical evidence does not disclose that Jalal’s was a homicidal death. Undoubte dly, the conviction is based only on the fact that the deceased was allegedly la st seen together with the accused. 8. Mr. H. Sharma, learned Addl. Public Prosecutor, on the other hand, has s ubmitted that the post-mortem report clearly shows that death of the said deceas ed was homicidal. From the circumstances appearing against the accused-appellant s, the prosecution, according to the learned Additional Public Prosecutor, has p roved its case against the accused-appellants. The conviction of the accused-app ellants may not, therefore, be interfered with. PW.9, Dr. SK Md. Indadullah, who held autopsy on the dead body of Jalal 9. Islam, on 25-08-2007, found as follows:- (cid:28)Eyes and mouth half opened. Marks of cut injury 1 (cid:29)x1 (cid:29) just below right eye and lateral to right nose. Blood stained froth coming through right nostile. There i s a ligature mark around the neck present. On section of ligature mark underlyin g vessels and muscles are found lacerated with bleeding of surrounding tissue. Cranium and spinal cord: All structures are found intact. Thorax: Wall rib and cartilage and pauerae intact and congested. Lungs: Congested with rupture of lung tissue and spaces full of bleedings. Lungs are congested with rupture of lung tissue and full with bleeding. Heart in tact and vessels of neck are gorged. Muscles bones and joints: already described. Abdomen: Wall intact, Peritoneum, intact. Mouth Phary and usophagious congested. Stomach and its contests empty. Small intestine and large intestine contains focolitch. Liver, spleen and kidney bladder organ of generation intact and normal. Ligature mark on the neck is ante mortem in nature (cid:29). 10. gulation. In the opinion of doctor, death was due to asphyxia as a result of stran As per medical jurisprudence, strangulation is a violent form of death, 11. which results from constricting the neck by means of ligature or otherwise witho ut suspending the body. Hanging is a form of death produced by suspending the bo dy with a ligature round the neck, the constricting force being the weight of th e body. In this case, on dissection of ligature mark around the neck, underlying vessels and muscles were found lacerated with bleeding of surrounding tissue. L ungs were congested with rapture of lung tissue and full with bleeding. There wa s cut injury below. The finding of the doctor that the death was due to asphyxia as a result of strangulation was not disputed. There is clear finding that asph yxia was due to strangulation. Therefore, the learned trial Court has rightly he ld that death was homicidal. As regards the evidence of last seen together, P.W.1 (Akhirul Islam) an 12. d P.W.2 (Akibanu Banu), son and wife of the deceased respectively, have deposed that at around midnight, the four accused persons came to their house and took a way the deceased with them. It is in the evidence of P.W.1 that at around 3 or 4 o’ clock in the morning, he got information that his father was hanging from a jackfruit tree. P.W.2 has deposed that hearing commotion, when she went out, she found her husband, Jalal, hanging from a jackfruit tree. 13. P.W. 1 has stated, in his evidence, that an arbitration had been arrange d in Samu Miaan’s house to settle an issue relating to sale of leather and, in t he arbitration, his father was imposed a fine of Rs. 80,000/-. PW1 has also depo sed that on returning home and after having his meals, when his father was about to go to bed, the accused persons came and, once again, called him (deceased) a way. To the same effect is the evidence of P.W.2. 14. Kalam Mistri (P.W.6) has stated that Jalal (deceased) told him that a pa nchayat meeting had been arranged and he (P.W.6) should also attend the meeting. Accordingly, P.W.6 went to meeting at 8 P.M. and after the said meeting, Jalal took him to Nur Hussain’s house at 11 P.M., but since it was already late, P.W. 6 left Jalal in front of house of Nur Hussain and proceeded to his own house and when he (PW6) was about to reach his home, accused Kubbas Ali stopped him and t hey had some discussions about making of furniture for the purpose of marriage o f Kubad’s daughter. In his cross-examination, although PW6 has admitted that if any man moves after 7 P.M., he is detained in the camp, for the night, by the B SF, it is evident from his own evidence that he and others were moving freely in the village in the night till, at least, 11 P.M. P.W.6, Raju Sheikh, has deposed that it was his wife, who first saw the 15. said deceased hanging from the jackfruit tree outside their house, she raised hu e and cry and, then, villagers came. In his cross-examination, PW6 has deposed t hat the said deceased had no quarrel with the accused persons. 16. P.W.7, the Investigating Officer, in his evidence, has deposed that P.W. 1 (informant) did not state before him that his father was called away for arbit ration and, similarly, P.W.2 did not disclose before him (Investigating Officer) that the said deceased used to deal with business jointly with the accused pers ons. 17. It is, now, well settled that in order to base conviction on circumstant ial evidence, the prosecution must establish all the pieces of incriminating cir cumstances and the circumstances, so proved, must form such a chain of events as would lead to the conclusion that it was the accused and none else, who had com mitted the offence. It is also well settled that suspicion, however grave may be , cannot become substitute for proof and the Court shall take utmost precaution if it has to hold an accused guilty only on the basis of the circumstancial evi dence. (Anil Kumar Singh Vs. State of Bihar (2003) 9 SCC 67; Ramreddy Rajesh Kah anna Readdy Vs. State of A.P. (2006) 10 SCC 172 followed). 18. It is also well settled that the last seen theory comes into play, where the time gap between the point of time, when the accused and the deceased were last seen alive, and the death of the deceased is so small that possibility of a ny person, other than the accused, being the author of the crime becomes impossi ble. 19. It transpires from the evidence of P.W.3 that the compound of Raju, wher e the deceased was found hanging, is close to house of deceased Jalal, both the houses being separated only by a water tank. 20. Coupled with the above, P.W.4 (Abdul Kayum), brother of the deceased, ha s deposed that when he asked his sister-in-law (PW2), she told him that Jalal ha d come home at around 8/9 P.M., had his meals and went out. P.W.4 has not stated that P.W.2 told him that the deceased was called away by the accused persons. T hough P.W.7 told P.W.4 that the deceased was called away by the accused persons, P.W.7 (Raju) has stated that Jalal’s wife and son told him that Jalal come out alone at about 7 P.M. and did not return back home. 21. P.W.1 and P.W.2 have stated that a fine of Rs.80,000/- was imposed on the deceased in the village meeting held in Samu Miayan’s house, but P.W.6 claim s that the Panchayat meeting was held on the sharing of river mahal. P.W.6 accom panied the deceased to the house of Nur Hussain after the meeting. The said Nur Hussain was not examined by the prosecution and P.W.6 has not stated that any pe nalty/fine was imposed on the deceased. 22. What emerges from the discussion of the evidence on record is that there is no convincing and reliable evidence proving that the accused had come to the house of the said deceased and called him away. Thus, prosecution’s case, that the said deceases was last seen in the company of the present four appellants, c annot be held to have been convincingly proved. The learned trial Court ought to have, therefore, accorded, at least, benefit of doubt to the accused-appellants .
Decision
23. In the result and for the reasons discussed above, this appeal succeeds and we set aside the conviction of the accused-appellants as well as the sentenc e passed against them. The accused-appellants are hereby directed to be set at l iberty forthwith unless they are required to be detained in connection with any other case. 24. Send back the LCR.