High Court
Case Details
Crl.A. 28/2013 BEFORE HON’BLE MR. JUSTICE I. A. ANSARI HON’BLE DR. (MRS.) JUSTICE INDIRA SHAH JUDGMENT & ORDER (ORAL) (Indira Shah) This appeal is directed against the judgement and order, dated 17.12.201 2, passed, in Sessions Case No. 112 (DM)/07, by the learned Sessions Judge, Darr ang, convicting the accused-appellants, under Sections 302,376 and 201 IPC, read with Section 34 IPC, and sentencing each of them to suffer, for their convictio n under Section 302 read with Section 34 IPC, imprisonment for life and pay fine of Rs. 2,000/- and, in default of payment of fine, suffer imprisonment for a pe riod of 6 (six) months and also to suffer, for their conviction under Section 37 6, read with Section 34 IPC, imprisonment for 10 (ten) years and pay fine of Rs. 1,000/- and, in default of payment of fine, undergo imprisonment for a period o f 3 (three) months and to further undergo, for their conviction under Section 20 1, read with Section 34 IPC, imprisonment for 5 (five) years and pay fine of Rs. 1,000/- and, in default of payment of fine, undergo imprisonment for a period o f 3 (three) months, all the sentences having been directed to run concurrently. 2. The prosecution’s case may, in brief, be described thus: On 17.11.2006, at about 9-30 P.M., PW1, alongwith his 10 years old daugh (i) ter, came out of his house to see ’Yatragan’ (i.e., opera or drama party). Keep ing his said minor daughter (since deceased) at the house of his paternal uncle (PW6), PW1 went to buy tickets for the said ’Yatragan’. After about an hour-and -a-half, when PW1 returned to the house of his said paternal uncle (PW6) with ti ckets, he could not find his daughter and, on making enquiry, PW6 and his wife ( PW7) told PW1 that his (PW1’s) said daughter had gone out to the ’Yatra’ tent, w hich was erected adjacent to the courtyard of PW6. Though a search was made by PW1 and others to trace out the said minor daughter of PW1, her whereabouts coul d not be traced out and, when PW1 returned to the house of PW6, he (PW1) was tol d by PW7 that PW1’s said minor daughter was seen by her enjoying music on a tape -recorder in a car, which was lying parked in the courtyard, with the driver and handyman of the said car. PW1 did not, however, find any vehicle at the courty ard of PW6. (ii) On the following day, at about 6-00 A.M., the dead body of the said minor daughter of PW1 was found by PW2 in the pit of kacha latrine, located in the compound of the house of Ajgar Ali, and, on seeing the dead body of the said minor daughter of PW1, PW2 raised hue and cry and people from the neighbour hood gathered there. PW3, who had also accompanied PW1 in the search of the lat ter’s said minor daughter, informed, over phone, Doipam Police Outpost, whereupo n police arrived at the place, where the said dead body had been found, and reco vered the dead body of the said minor daughter of PW1. Thereafter, PW1, too, lod ged a written Ejahar (Exhibit-1) at the said outpost and a case was accordingly registered under Sections 376(F)(G)/302/201 read with Section 34 IPC. (iii) During the course of investigation, police held inquest over the said de ad body and, on completion of investigation, a charge-sheet was laid against thr ee accused persons, including the present appellants, namely, Md. Abdul Rahim an d Md. Sayed Ali and Rustam Ali (since deceased) under Sections 376 (f), 302 and 201 IPC. 3. At the trial, when charges under Section 302, 376 and 201 IPC read with Section 34 IPC were framed, accused Sayed Ali and Abdul Rahim pleaded not guilty thereto. 4.
Legal Reasoning
In support of their case, prosecution examined altogether 17 (seventeen) witnesses. The two accused persons aforementioned were, then, examined under Se ction 313(b) CrPC and, in their examinations aforementioned, these two accused d enied that they had committed the offences, which were alleged to have been comm itted by them, the case of the defence being that of denial. No evidence was add uced by the defence. 5. We have heard Mr. M. A. Sheikh, learned counsel for the appellants. We have also heard Mr. K. A. Majumdar, learned Addl. Public Prosecutor, Assam, appe aring on behalf of the State. 6. PW1, Md. Amiruddin, is the father of the deceased as well as informant. In his evidence, he has deposed that on the day of the occurrence, at about 8-3 0 P.M., he, along with his minor daughter, went to enjoy ’Yatragan’, which was h eld near the house of Giasuddin, Giasuddin being his paternal uncle and, for his convenience to buy tickets for the ’Yatragan’, he left his minor daughter in th e house of Gaiasuddin, but when he returned after buying tickets, he did not fin d his daughter in the house of Giasuddin and, on being asked, Giasuddin’s wife ( PW7) told him that the girl had gone out to the ’Yatra’ tent. It is in the evid ence of PW1 that though he tried to find out the whereabouts of his daughter, he r whereabouts could not be traced out, whereupon he, again, went to the house of Giasuddin and, then, Giasuddin’s wife (PW7) told him that his daughter had been seen enjoying music on a tape-recorder in a vehicle, which was lying parked in the courtyard of their house and that inside the vehicle there were driver and h andyman present, but PW1 did not find any vehicle there and, on the next morning , at around 6-00 A.M., he saw the dead body of his minor daughter in a kacha lat rine pit in the compound of Ajgar Ali and, thereafter, he lodged the FIR. 7. PW2, Kasar Ali, PW4, Samiruddin, and PW10, Fakaruddin Ahmed, saw the dea d body of the deceased lying in the kacha latrine pit in the compound of Ajgar A li’s house. It is in the evidence of PW2 that, on seeing the dead body in the l atrine pit, he raised hue and cry and, on hearing his hue and cry, many people g athered there. 8. PW3, Baharul Islam, has deposed that on the day of the occurrence, he al so went to enjoy ’Yatragan’, where he met PW1 and PW1 asked him to reserve two s eats for him and his daughter near his (PW3’s) seat. It is in the evidence of P W3 that he kept two seats reserved for PW1 and his daughter, but PW1 did not tur n up at the ’Yatragan’ with his daughter, whereupon he (PW3) came out and looked for PW1 and, when he met PW1, PW1 told him (PW3) that his (PW1’s) daughter had gone missing. It is also in the evidence of PW3 that he (PW3), again, entered i nto the tent of the ’Yatragan’ to enjoy the ’Yatragan’ and when the show (’Yatra gan’) was over, he came out and heard cries raised by PW2 in the compound of Ajg ar Ali and, thereafter, when he (PW3) went there, he saw the dead body of the sa id deceased in the pit of kacha latrine, many people assembled there and that, b y that time, the sun had risen. PW3, thereafter, informed the police over phone and police came, recovered the dead body and seized some articles belonging to the deceased. 9. PW5, Abdul Latif, has deposed that on the day of the occurrence, he went to enjoy ’Yatragan’, where he happened to meet PW1, who told him (PW5) that his (PW1’s) daughter had been missing, whereupon he (PW5) accompanied PW1 in the la tter’s search for the missing girl. It has also been deposed by PW5 that Giasud din’s wife told him that a vehicle had been parked at the courtyard and that the driver of the vehicle had called the victim girl into the vehicle to enjoy song s on a tape-recorder. PW5 has further deposed that he had seen two vehicles, wh ich had been lying parked in the courtyard of Giasuddin. However, PW5 did not s ee any driver or handyman in the vehicle, but in the next morning, the dead body of the victim girl was recovered from the pit of a kacha latrine. It is in the evidence of PW5 that he came to know from a member of the said ’Yatra party’ th at accused Rustom was the driver of one of the ’TATA Sumo’ cars and that Abdur R ahim was the driver of the other ’TATA Sumo’ car belonging to the said ’Yatra pa rty’. In his cross-examination, PW5 has admitted that he has no personal knowle dge as to who were the driver and handyman of the said vehicles. 10. PW6, Md. Giasuddin, in whose custody the victim girl was kept by her fat her, has deposed that Amiruddin (PW1) came to his house with his daughter and, l eaving the girl in his house, he went away to the ’Yatra Pandal’. It is in the evidence of PW6 that a number of people were in his house at the relevant time a nd three small cars stood parked in his courtyard, but he could not see who had parked the cars in the courtyard of his house and, on the next day, police came to his house with the accused persons under arrest. This witness (PW6) was decl ared hostile by the prosecution, but he denied to have made the statement, which was attributed to him as his statement made before the police during investigat ion. In his cross-examfination by the defence, PW6 has deposed that he cannot s ay who were the drivers of the cars that stood parked in the courtyard of his ho use. PW7, Musst. Martavan Nessa, wife of Giasuddin, also turned hostile to th 11. e prosecution. This witness has admitted that the victim was left by her father in their house and two small vehicles were lying parked in the courtyard outsid e their house. PW7 has also deposed that she offered betel nut leaves to a numb er of people including the drivers and handyman of the said vehicle, but she cou ld not identify the accused persons. 12. PW10, Saijuddin Ahmed, has deposed that police came to the place of occu rrence along with the accused persons, that accused Rustom pointed out to the la trine pit, where the girl had been dumped after killing, and that accused Rustom also showed the sesum field, where the girl had been, first, subjected to rape. In his cross-examination, this witness has stated that he saw the accused pers ons at the police station. PW11, Dr. Sazzad Alam, then serving as Revenue Circle Officer-cum-Execut 13. ive Magistrate, Dalgaon Revenue Circle, held inquest on the dead body of the dec eased. 14. PW12, Phukan Debnath, accompanied the police to take photographs. Polic e took the accused persons to a field and interrogated them near a latrine. PW1 2 could not say who were the accused persons. 15. PW14, Md. Hasen Ali, has stated that he met the ’TATA Sumo’ car driver a long with a child and the driver told him that the child was his own daughter; b ut, on the next day, he heard that the child had been killed. This witness also could not say as to who was the driver of the said ’TATA Sumo’ car. 16. PW9, Dr. Manideep Rai Deka, conducted post-mortem examination on the dea d body of the said deceased, on 18.11.2006, at Mangaldoi Civil Hospital, and his findings are as follows: (cid:28) Description: A female dead body, average built. Dark brown complexion wearing stripe under w ear, white vest blue skirt under which there is a white jangia. Face is puffed congestedsimatic. Eyes closed, mouth closed. Rigor mortis present all over the body. Post-mortem hypothesis present over the dependent parts of the body and it is fixed stool comes out from the anus. Blood comes out through right ear. Blood also comes out through vagina. Injury No. 1: Abrasion of size 1cm X 1 cm is present 3 cm over the thyroid cart ilages. Injury No. 2: Abrasion of size 1 cm X 1 is present just above the Injury No. 1. Injury No. 3: Abrasion of size 1 cm X 1 cm is present just below the right angle of mandible. Injury No.4: Abrasion of size 2 cm X 3 cm is present over the back just above th e gluteal plate. Injury No.5: Lacerated injury is present in the libia minora in both sides with extension of injury towards the vaginal canal posteriorly (cid:29). Vaginal smear is taken from the posterior corni of vagina and smear is taken and smear shows no spermatozoa. The materials of the deceased were handed over to the escorting Police Constable. Scalp, skull, vertebrae - healthy. Membrane - Brain congested. Liver spleen, kidney, bladder - all congested. Organs of generation - External as described. Internal - Uterus healthy and empty. Thorax - Walls, ribs and cartilages - healthy. Larynix and trachere - Haemorrhagic infiltration is present in the mucous membra ne of larynix and trachea. Right lung and left lung - congested. Petichial haemorrhage is present. On section exude blood comes out. Pericardiu m healthy. Heat is full of dark coloured blood. Injuries as described. Disease, deformity not detected. Fracture dislocation of Altanto exial joint is present. No mark of ligature is detected around the neck. On neck dissection soft tissues of the neck both right side and left is contused . Hyoid bone is found healthy. Abdomen: Walls, peritoneum, mouth pharynx oesophagus - healthy. Stomach - Mucuous congested and contained partly digested good materials without any suspicious smell. Large intestine and its contents - Mucuous congested and contained gas and fecal matter. (cid:29) 17. In the opinion of the doctor, death was due to asphyxia resulting from a nte-mortem manual strangulation, the death being homicidal in nature and all the injuries being ante-mortem. The injuries, in the genital organs, were, accordi ng to the doctor, caused by forceful penetration. 18. PW17 is the investigating Officer, who, in his deposition, has stated th at on receipt of the FIR, a case was registered and investigation was carried ou t and that, during investigation, he visited the place of occurrence and recorde d the statements of the witnesses and also held inquest on the dead body, he sei zed a woolen bonnet, two one-rupee coins, one chain and a pair of old yellow Haw ai sandals. 19. From a careful reading of the evidence on record, it appears that there is no direct evidence against the accused persons. There is no evidence that th e accused-appellants were driver or handyman of the vehicle, in which the victim was enjoying songs on a tape-recorder and, therefrom, she went missing. The le arned trial Court has relied upon the evidence of the investigating officer, the Executive Magistrate, the VDP Secretary and PW10. These witnesses have stated that the accused persons, after their arrest, led the police to the place of occ urrence, where they had committed the offence of rape, and, thereafter, to the p lace, where the dead body was dumped. In this case, Section 27 of the Evidence Act is not attracted, because the dead body of the said deceased had already bee n recovered before the accused persons were arrested. There is no evidence that the accused persons were the driver and/or handyman of the vehicles, which were parked in the compound of Giasuddin’s house. There is also no evidence to show that the victim boarded the vehicle of the accused persons and, thereafter, she went missing. Although the prosecution could establish that the victim was sub jected to rape and, thereafter, she was killed, her death being homicidal in nat ure, yet, so far as the involvement of the accused-appellants is concerned, ther e is not even an iota of evidence to show that the accused-appellants were respo nsible for commission of offences for which they faced the trial and stand, as i ndicated above, convicted and sentenced. 20. Because of what have been discussed and pointed out above, it cannot be held, and ought not to have been held by the learned trial Court, that the evide nce on record proved the guilt of the accused-appellants beyond reasonable doubt and, if not acquittal, the accused-appellants were entitled to, at least, benef it of doubt. 21.
Decision
In the result and for the reasons discussed above, this appeal succeeds. The conviction of the accused-appellants and the sentences, passed against them by the judgement and order under appeal, are hereby set aside. The accused-app ellants are directed to be set at liberty, forthwith, unless they are required t o be detained in connection with any other case. 22. of. 23. With the above observations and directions, this appeal stands disposed Send back the LCR.