Md. Zakaria Mazumder vs The State Of Assam And Anr
2021 Latest Caselaw 1901 Gua

                                                                  Page No.# 1/14

GAHC010001462017




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                  Case No. : Crl.A./69/2018

            MD. ZAKARIA MAZUMDER
            VILL. BERENGA PART-III, P.S. SILCHAR, DIST. SILCHAR



            VERSUS


            THE STATE OF ASSAM AND ANR
            REPRESENTED BY PP ASSAM

            2:ASHOK KR. RAM
             R/O NADIPAR
             LUMDING
             P.O. AND P.S. LUMDING RELIEF YEARD LAST COLONY
             DIST. HOJAI
             PERMANENT ADD. CHAIRPUR
             P.O. CHAIRPUR
             DIST. BOJPUR
             BIHAR




Advocate for the Petitioner   : MR. A CHOUDHURY

Advocate for the Respondent : PP, ASSAM

BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA Page No.# 2/14

JUDGMENT AND ORDER (Oral) Date : 19-08-2021

(Suman Shyam, J)

Heard Mr. L. R. Mazumdar, learned counsel appearing for the appellant. We

have also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam,

appearing for the State/respondent No.1. None has appeared for the

informant/respondent No.2.

2. By the impugned judgment and order dated 09.01.2018 passed by the learned

Sessions Judge, Cachar, Silchar in Sessions Case No.73/2015 the sole appellant Md.

Zakaria Mazumdar was convicted under Section 302/364 of the I.P.C. for committing

murder of Smt. Rinku Deb and sentenced to undergo rigorous imprisonment for life

and also to pay a fine of Rs.50,000/-, in default, to undergo rigorous imprisonment for

one year.

3. The prosecution case, in brief, is that on 03.04.2013 the informant Ashok Kumar

Ram, accompanied by his wife Rinku Deb was coming from Mizoram to Silchar via

Bolphui, in a Tata Sumo bearing Registration No.AS-11AC-4317 which was driven by

the accused. While coming towards Silchar, the vehicle suddenly stopped and the

accused had asked the informant to push the vehicle. While the informant was

pushing the vehicle, his wife was inside the Tata Sumo. The vehicle took start but the

accused drove away along with the informant's wife. In this manner, the accused

had abducted his wife, committed rape on her and also committed theft of cash

amount of Rs.30,000/- along with other belongings and inflicted injuries upon her and

thereafter, dropped her near the Capital Travels, Silchar. Later on, the victim was sent Page No.# 3/14

to the Silchar Medical College & Hospital (SMCH) in an 108 ambulance but was later

declared dead.

4. On 04.04.2013 an ejahar was lodged by the husband of the victim viz. Sri Ashok

Kumar Ram before the Officer-in-Charge, Silchar Police Station based on which,

Silchar P.S. Case No.689/2013 under Sections 366/376/302/379 IPC was registered.

Upon investigation of the case the I.O. submitted charge-sheet against the

accused/appellant under Sections 366/302/379 IPC. Based on the charge-sheet,

charges under Sections 364/379/302 IPC were framed by the learned court below.

Since the accused had pleaded not guilty and claimed to be tried, the matter went

up for trial.

5. There is no eye-witness to the occurrence and the prosecution case is entirely

based on circumstantial evidence. In order to bring home the charges, the

prosecution had examined as many as six witnesses including the doctor who had

conducted the autopsy as PW-5 and the Investigating Officer (I.O.) as PW-6. In his

statement recorded under Section 313 Cr.P.C. the accused had denied his

involvement in the incident but the defence side did not adduce any evidence.

Based on the materials available on record, the learned Sessions Judge, Cachar,

Silchar has held that the charges brought against the accused could be proved by

the prosecution beyond reasonable doubt and therefore, convicted the accused

and sentenced him as aforesaid.

6. Mr. L. R. Mazumdar, learned counsel for the appellant, has argued that in the

instant case there are serious lapses and omissions not only in the investigation but Page No.# 4/14

also in conducting the trial of the case. He submits that neither the Sumo vehicle nor

the accused had been identified by anyone including the informant. That apart, the

prosecution had also failed to establish the chain of circumstances so as to establish

the guilt of the accused/appellant as per the requirement of law. On the contrary,

the version of the informant appears to be wholly inconsistent and raises grave

suspicion as regards the veracity of the prosecution case. Mr. Mazumdar, therefore,

prays for setting aside the impugned judgment and order dated 09.01.2018 and for

acquitting the appellant.

7. By supporting the impugned judgment Ms. B. Bhuyan, learned Addl. P.P., on

the other hand, has argued that the name of the accused and the vehicle number

has been mentioned in the ejahar itself and to such extent it cannot be said that the

driver of the Sumo i.e. the accused could not be identified. By placing reliance on a

decision of the Hon'ble Supreme Court in the case of Yogesh Singh Vs. Mahabeer

Singh and others reported in (2017)11 SCC 195, Ms. Bhuyan submits that some minor

defects in the investigation cannot be the sole ground to set aside the conviction of

the appellant by ignoring the other evidence available on record.

8. We have considered the submissions advanced by the learned counsel for the

parties and have also gone through the materials available on record. As noticed

above, Sri Ashok Kumar Ram is the husband of the deceased and also the informant

in this case. In his deposition before the Court, PW-3 had stated that he was working

under the Mizoram Police Department as a Cobbler. One day, at about 7.00 a.m. he

along with his deceased wife Runku Deb got into a Tata Sumo for coming to his in-

Page No.# 5/14

law's house at Lumding. He had boarded the Tata Sumo vehicle along with his wife

carrying one bag, one suitcase and one bedding. There were 8 passengers in the

vehicle. On the way, they took meal at "Bolphui". But at that time, the driver of the

vehicle told them that he would go to "Bhairabi" and another Tata Sumo vehicle had

been arranged to take them to Silchar. Accordingly, he and his wife, who were the

only two passengers, had boarded the 2nd Tata Sumo. When the vehicle had

reached a place called "Nagatilla" at Silchar, the driver had taken the vehicle to a

subway on the plea that he had to answer nature's call. After returning, the driver of

the 2nd Sumo had told him that the vehicle was not taking start and therefore,

needed to be pushed. Hearing that, the informant (PW-3) got down from the vehicle

leaving his wife inside the Tata Sumo and pushed the vehicle. The vehicle took a start

but the driver went away with his wife by leaving him behind. He started running after

the vehicle and as it was around 2/2.30 a.m., although he raised alarm, none was

there to help him. PW-3 had stated that he then came to the counter of Capital

Travels and found his wife lying on the floor in an unconscious state. Then he found

one auto rickshaw and took his wife to Silchar Railway Station. In the Railway Station,

seeing the condition of his wife, some people had called an ambulance and then his

injured wife was taken to the Silchar Medical College & Hospital (SMCH) where she

was declared dead. Then he lodged the F.I.R. PW-3 had stated that when he

reached Capital Travels he found his wife lying unconscious and the bedding and the

suitcase was found beside her but her money bag containing a cash of Rs.70,000/-

was found missing.

Page No.# 6/14

9. In his cross-examination, PW-3 had stated that he could not remember the

registration number of the Tata Sumo vehicle and also could not say under which

Sumo service, it was running. PW-3 had also stated that he had seen the accused for

the first time on that night and he did not know his name. This witness had also

admitted during his cross-examination that the ejahar was written in the Police Station

and he had put his signature. Somebody other than the police wrote the ejahar at his

instructon. PW-3 had also deposed that he could not read the ejahar as he is an

illiterate person and could only put his signature somehow. He was never admitted in

a school and could put his signature only as Ä. K. Ram". The witness had also stated

that he did not put his full name in the signature given in the ejahar.

10. PW-1 Imdadul Haque Barbhuiya and PW-2 Faruk Ahmed Barbhuiya are the

Medical Technician and Driver respectively, of the 108 ambulance which had picked

up the victim in an injured condition from the Tarapur Railway Station on 04.04.2013

and brought her to the SMCH where she was declared dead in the emergency

department. As per the evidence adduced by PWs-1 and 2 it transpires that they had

received a telephonic call at around 3.45 a.m. on 04.04.2014 and went to the Tarapur

Railway Station to pick up a lady patient who was lying in the Railway platform in an

unconscious condition.

11. PW-4 Sri Debdas Deb was posted at the Ghungoor Outpost on 04.04.2013. He

had stated that on 04.04.2013 he received information from the Casualty Department

of the SMCH to the effect that a patient by the name Rinku Deb, aged about 29

years, had been brought dead at about 4.30 a.m. On receipt of such information Page No.# 7/14

G.D. Entry bearing No.89 dated 04.04.2013 was made by him and on being

instructed, he came to Silchar to take one Executive Magistrate for conducting

inquest over the dead body. Accordingly Sri D. K. Timung, Executive Magistrate, had

conducted the inquest on the dead body in his presence. Ext-2 was the inquest

report and Ext-2(1) was his signature.

12. PW-5 Dr Gunojit Das was posted at the SMCH on 04.04.2013 and was working

with Dr. N. M. Kakoti who had conducted autopsy on the dead body of the victim.

According to the PW-5, the following injuries were found on the dead body :-

"1. Abrasion and contusion of size 3cm x 2cm present left forehead.

2. Lacerated injury size 2 x 1cm present over lower lip left side in muscle deep.

3. Contusion of size 2 x 1.5cm present in front of neck 1cm below from mid chin.

4. Contusion of size 2cm x 5cm on right side face.

5. Abrasion and contusion of size 10 cm x 6cm to 4cm x 2cm present on left arm, back of elbow, left forearm right forearm, both writ joints both palms at places.

6. Abrasion and contusion 6cm x 3cm to 2cm x 1cm present at the front of both knee joints front of both legs left ankle and dorsal aspect of both legs.

7. Contusion of size 12cm x 3cm present over lateral aspect of left thigh.

8. Abrasion and contusion of size 12cm x 8cm to 4cm x 2cm present back of the chest and abdomen at places.

9. Contusion of size 3cm x 2.5 cm present at the lateral aspect of right side of neck.

In the cranium scalp shows a contusion of size 18 x 12 cm present over Page No.# 8/14

left temporo fronto parietal (lower part) and occipital (lower region).

Subdural haemorrhage present over both hemisphere. Rest of the organs found healthy.

Two glass slides taken from posterior fornix and around the cervix. On microscopic examination no spermatozoa is seen."

According to the doctor's opinion, death was caused due to comma resulting from

head injuries as described. All the injuries were ante mortem and caused by blunt

force impact and were homicidal in nature. Time since death was noted to be 6-12

hours approximately. PW-5 had also proved the post-mortem report Ext-5 containing

his signature.

13. PW-6 Sukkur Ahmed Laskar was posted as S.I. of Police at the Rangirkhari Town

Outpost (TOP) on 04.04.2013. He was entrusted with the responsibility of conducting

investigation in connection with Silchar P.S. Case No.689/2013. PW-6 had deposed

that he had found the informant at the Rangirkhari TOP and recorded his statement.

Before he was entrusted with the investigation of the case, inquest was conducted on

the dead body by the Ghungoor Outpost and the dead body challan as well as the

inquest report were handed over along with SCD which was prepared in connection

with Ghungoor OP G.D. Entry No.89 dated 04.04.2013. PW-6 has deposed that he

had recorded the statement of four witnesses on the same day and on 05.04.2013 he

had arrested the accused person from Aulia Bazar and forwarded him to the Court of

CJM. He had also collected the post-mortem report but could not recover the stolen

property. Upon completion of investigation he submitted the charge-sheet against

the accused person.

Page No.# 9/14

14. During his cross-examination, PW-6 had stated that the ejahar was received at

9.00 p.m. and then he opened the Case Diary. At first he had recorded the statement

of the informant at about 1.50 p.m. on 04.04.2013 in connection with Rangirkhari TOP

G.D. Entry bearing No.98 dated 04.04.2013. Thereafter, he had recorded statements

of other witnesses including the accused and the accused was sent for medical

examination on 04.04.2013. PW-6 had stated that he found the seized Tata Sumo in

the Sumo Counter viz. Wing Counter, Sonai Road, near Nagatilla and the same was

seized at 11.00 p.m. on 04.04.2013.

15. From a careful scrutiny of the evidence available on record, we find that the

informant (PW-3) has claimed to have boarded a Tata Sumo vehicle along with his

wife at about 7.00 a.m. on 03.04.2013 for their onward journey towards Silchar on the

way to Lumding. PW-3 has also stated that on reaching Bolphui in Mizoram, when

they were taking meal, the driver of the vehicle had announced that he is going to

another destination viz. "Bhairabi" and therefore, they were asked to board a

different Sumo vehicle. Accordingly, the PW-3 along with his deceased wife had

boarded the 2nd Sumo vehicle driven by the accused/appellant and that is when the

incident had occurred. However, there is not even an iota of evidence available on

record to establish that the deceased was in fact travelling by road from Mizoram to

Silchar on 03.04.2014 as claimed by him. During his cross-examination, although PW-3

had stated that he had handed over the journey ticket to the police along with the

ejahar, yet, there is neither any mention of the same in the ejahar nor did the I.O.

(PW-6) say so in his deposition.

Page No.# 10/14

16. From the evidence of PW-3 we further find that he has claimed to have

walked down from Nagatilla and reached the Capital Travels, Silchar at around

2/2.30 a.m. on 04.04.2013 and found his wife lying there in an unconscious state along

with the luggage besides her. Capital Travels is a bus travel agency at Silchar.

However, there is nothing on record to even remotely indicate as to why the

informant had chosen to come to Capital Travels Counter instead of enquiring about

his abducted wife or lodge a complaint in the nearest police station.

17. It is also the testimony of the PW-3 that having seen his wife lying in an

unconscious state at the Capital Travels, Silchar he called an auto rickshaw and took

her to the Railway Station. Here also, we find it very surprising to note that instead of

calling for medical help and taking his wife to the nearest hospital the informant had

taken his injured wife to the Railway Station. There is no explanation as to why he had

gone to the Railway Station instead of a hospital. From the evidence of PW-3, it has

also come out that the 108 ambulance was not called by him but it was some other

people in the Railway Station who had called the ambulance after seeing the

condition of his wife.

18. On a meticulous examination of the LCR, we find that there has been no

identification of the Tata Sumo vehicle. The PW-3 is the only person who had deposed

that the accused was driving the Sumo vehicle which had left him behind and went

ahead with his wife and later on committed the offence as alleged. However, there is

no Test Identification parade (TIP) in this case and nobody had identified the

accused. Although the name of the appellant has been mentioned in the ejahar Page No.# 11/14

lodged on 04.04.2013, yet, as noticed above, during his cross-examination, the PW-3

had stated that he did not know the accused and had seen him for the first time on

the previous day while commencing his journey in the 2 nd Tata Sumo towards Silchar.

The question that would therefore, arise is as to from where did the informant get the

name of the accused while lodging the ejahar.

19. It is also to be noted herein that the PW-3 has claimed to be an illiterate who

had deposed that he had never got admitted in any school and could only put his

signature in the short form. But we find that he has put his signature in the ejahar as

Ashok Kumar Ram.

20. PW-3 had also categorically deposed that the ejahar was written by someone

else as per his instruction but we did not find the name of the scribe mentioned

anywhere in the record. There is no clarity as to under what circumstances the ejahar

was prepared and who had written the same.

21. In the F.I.R. it has been mentioned that Rs.30,000/- has been stolen from the

wife of the informant but in his deposition PW-3 has mentioned about Rs.70,000/-

having been stolen by the accused.

22. It is no doubt correct that the post-mortem report as well as the evidence of

PW-5 had established the fact that the deceased Rinku Deb had in fact suffered a

homicidal death due to multiple injuries in her body. However, save and except the

aforesaid fact, we find that there is no evidence to establish the chain of

circumstances under which the deceased had died. On the contrary we find that

there are far too many questions, as noticed above, in the prosecution story, that Page No.# 12/14

have remained unanswered during investigation as well as in the course of trial so as

to complete the chain of circumstances. Rather, we are of the view that the name of

the accused person has been deliberately inserted into the F.I.R. due to oblique

reason. This we say so due to the following reasons.

23. From the evidence of PW-6 we find that the ejehar was received at 9.00 p.m.

on 04.04.2013 but the statement of the informant was recorded at about 1.50 p.m. on

the same day in connection with Rangirkhari TOP G.D. Entry No.98 dated 04.04.2013.

The aforesaid G.D. Entry has not been exhibited by the prosecution. There is also no

explanation as to the delay in lodging the ejahar in this case. The PW-6 had

mentioned that he had seized the Tata Sumo from a Sumo Counter at 11.00 p.m. of

04.04.2013 and arrested the accused person on 05.04.2013 from Aulia Bazar. From the

evidence of PW-4 it has come out that he had received information on 04.04.2013 at

4.30 a.m. that the victim was brought dead to the hospital and on receipt of such

information, recording G.D. Entry bearing No.89 dated 04.04.2013, he had gone to

bring an Executive Magistrate to conduct inquest over the dead body. The informant

PW-3 had also clearly deposed that he had not written the ejahar, he did not know

the contents thereof and he did not know the accused. From the above

circumstances it transpires that the name of the accused person was inserted in the

ejahar at the instance of some other person and not the informant and thereafter,

the accused has been subjected to trial and eventually convicted without even

establishing his identity in the matter. The aforesaid fact, viewed in the light of the

cumulative evidence brought on record, leaves no room for doubt that the

prosecution has completely failed to establish the charge brought against the Page No.# 13/14

accused beyond reasonable doubt.

24. In the case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in

(1984) 4 SCC 116 the Hon'ble Supreme Court, while summing up the law pertaining to

cases which are required to be proved on the basis of circumstantial evidence, has

observed that in a case based on circumstantial evidence the following conditions

must be fulfilled before a case against an accused can be said to be fully established

on circumstantial evidence :-

"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

25. By applying the tests laid down in the case of Sharad Birdhichand Sarda

(supra) to the fact of this case, we are of the unhesitant opinion that the prosecution

has failed to establish the chain of circumstances which is consistent with the single

hypothesis that it is none other than the appellant who had committed the murder of

the deceased. Moreover, the medical evidence shows the absence of spermatozoa Page No.# 14/14

on the deadbody of the victim. The prosecution has also failed to lead any evidence

to show that the accused had committed theft of money and other valuable articles

of the deceased or the informant. Under the circumstances, we are left with no

option but to set aside the impugned judgment and order of conviction dated

09.01.2018, which we do accordingly. Consequently, the accused/appellant Md.

Zakaria Mazumdar is acquitted of the charges brought against him.

We accordingly direct that the appellant Md. Zakaria Mazumdar be forthwith

released from the Jail if his custodial detention is not required in connection with any

other case.

The appeal stands allowed.

Send back the LCR.

                               JUDGE                               JUDGE



Comparing Assistant