Page No.# 1/ vs The State Of Assam And Anr
2021 Latest Caselaw 851 Gua

                                                                               Page No.# 1/11

GAHC010228182019




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

                               Case No. : Crl.A./377/2019

            IMAMUL HOQUE AND 3 ORS.
            S/O- MD. ABDUL KHALEQUE.

            2: ABDUL KHALEQUE
             S/O- LATE ABBAS ALI

            3: TOZOMOL HUSSAIN
             S/O- MD. ABDUL KHALEQUE

            4: RAHIMA KHATUN
            W/O- MD. ABDUL KHALEQUE
            ALL ARE RESIDENTS OF VILL.- DAGAON BERIAGAON
             P.O. DAGAON
             P.S. JURIA
             DIST.- NAGAON
            ASSAM PIN- 782124

            VERSUS

            THE STATE OF ASSAM AND ANR
            REP. BY P.P., ASSAM

            2:MD. ASMOT ALI
             S/O- LATE ABDUL JABBAR
            VILL.- DHINGBARI CHAPORI
             P.O. LETERIPAR BAZAR
             P.S. JURIA
             DIST.- NAGAON
            ASSAM PIN- 782124

Advocate for the Appellants                    :      Mr. N. Uddin,
Advocate for the Respondents                   :      Mr. M. Phukan, Addl. P.P., Assam

Mr. Z. Hammad, (R-2) Page No.# 2/11

Date of hearing : 17.02.2021

Date of judgment : 08.03.2021

BEFORE HON'BLE MR. JUSTICE SUMAN SHYAM HON'BLE MR. JUSTICE MIR ALFAZ ALI

JUDGMENT & ORDER (CAV)

(M.A. Ali, J)

Heard learned counsel Mr. N. Uddin appearing for the appellants and the learned Additional Public Prosecutor Mr. M. Phukan, appearing for the State respondent and also Mr. Z. Hammad, learned counsel for the respondent No. 2.

2. This appeal is directed against the judgment and order dated 26.08.2019 rendered by the learned Sessions Judge, Nagaon. All the four appellants stood convicted by the said judgment under Sections 302 read with Section 34 of the IPC and sentenced to rigorous imprisonment for life with fine of Rs. 10,000/- each, in default imprisonment for 6 (six) months.

3. The case of the prosecution, in a nutshell, is that the deceased Arjuma was married to the appellant Imamul Haque about 12/13 years before the occurrence. After the marriage, the deceased was subjected to physical and mental torture by her husband and the in-laws. On 27.12.2007, the appellants and few others named in the FIR tortured the deceased physically and killed her. Though the appellants tried to suppress the incident, the father of the deceased came to know about the occurrence and lodged the FIR (Ext. 5). On the basis of the said FIR, police registered Juria P.S. Case No. 205/2007 under Sections 304(B)/34 of the IPC and, upon completion of the investigation, submitted the charge sheet against the appellants under Section 304(B)/34 of the IPC.

Page No.# 3/11

4. During trial, the learned Sessions Judge framed charges against the appellants under Sections 302 read with Section 34 of the IPC to which the appellants pleaded not guilty.

5. The prosecution examined 7 witnesses to bring home the charge against the appellants. Upon conclusion of the prosecution evidence, the appellants were examined under Section 313 Cr.P.C., wherein the appellants took the plea of innocence and stated that the deceased committed suicide by jumping from the latrine when she was found in compromising position with one Abdul Samad (pw6). The appellants also examined one witness as DW1 in support of their defence put up during examination under Section 313 Cr.PC.

6. Asmat Ali, father of the deceased, was examined as PW1. He deposed in his evidence that the deceased Arjuma was given in marriage with the appellant Imamul Haque and she was blessed with a girl child out of the wedlock with the appellant Imamul. On the date of the occurrence, his another daughter Asma Khatun (PW4), who was residing near the house of the deceased, informed him that the appellant Imamul killed Arjuma by beating her with a stick. Immediately, he came to the house of the appellants, accompanied with Rahul, Ansarul and Nuruddin (PW2) and found the deceased Arjuma lying dead on the floor inside the room. He further stated to have noticed injury on the body of the deceased. He also stated that one year before the occurrence, Imamul tried to kill her by pouring kerosene on her. After the said incident, he brought the deceased to his house, and after about 20/22 days, again he sent back the deceased to her matrimonial home at the intervention of her in-laws. During cross- examination of this witness, it was elicited that he did not state before the police regarding Asma (PW4) informing him that accused Imamul killed the deceased Arjuma by assaulting her with a lathi (stick). Suggestion was also put to this witness by the defence that the deceased Arjuma committed suicide, which he denied.

7. PW2, Nuriddin, testified that having come to know about the occurrence from his wife, he went to the place of occurrence along with PW1, PW3 and one Anisidul and on reaching the house of the appellants, he found the deceased Arjuma lying supine on the floor inside the house of the accused. He also stated that except the father of the accused Imamul, other members of the family were not available at home. During cross examination of this witness, it Page No.# 4/11

was elicited that he heard of frequent quarrel taking place between the deceased and her husband Imamul.

8. PW3, Jehirul Islam, deposed, that he went to the place of occurrence with PW1, PW2, Sahidul, Zakir and Hazrat and found the father of the appellant Imamul sitting outside the house. This witness further stated that having entered into the house by opening the door, he found the body of the deceased inside the house. He also stated to have seen injury on the neck of the deceased. According to him, the neck of the victim was completely broken.

9. PW4, Asma Khatun, is the own sister of the deceased Arjuma, who claimed to be a close neighbor of the appellants. She deposed that at about 7 pm, there was a quarrel between the deceased and her husband Imamul as the appellant proposed to marry another girl. Having heard the quarrel, when she moved towards the fencing between the house of the appellants and that of PW4 and tried to go near the deceased, accused Imamul prevented her. She stated that she had seen Imamul hitting the deceased with an axe. She also stated that the accused Muzamil gagged the deceased with a gamocha, Tozomal, Rahima and Abdul Khaleque caught hold of deceased Arjuma and accused Imamul and Mozamil twisted her neck and, thereafter, threw her over a heap of straw. Though she tried to resist them, all the appellants had driven her out. After some time, again she came with a torch light and found deceased Arjuma dead. Immediately, she called his father, PW1 and informed him about the occurrence. During cross-examination of this witness, the defence confronted her with the previous statement made before the police under Section 161 Cr.PC, which, though, she denied, were duly proved and confirmed through PW7, the Investigating Officer.

10. PW5, Dr. P. K. Sarma, who conducted the post-mortem examination, found the following injuries:-

"Fracture of 3rd and 4th cervical vertebra with tearing of inter vertebral ligament.

In brain and spinal cord injury of the spinal cord at the level of 3 rd and 4th cervical vertebra.

Page No.# 5/11

All the injuries are anti mortem in nature."

The doctor opined that the death was due to shock as a result of injuries sustained by the victim. The doctor, however, denied the defence suggestion that the injury was post- mortem in nature.

11. PW6, Abdul Samad, deposed that he was told by one Idrish Ali that there was hue and cry in his house. He immediately came to his home and could know from his wife (PW4) that accused Imamul killed Arjuma. He further stated that immediately he went to the house of the appellant and found the deceased Arjuma lying on a heap of hay stack and none of the inmate of Imamul's family was present. He also stated to have noticed the neck of the deceased in broken condition.

12. PW7 is the Investigating Officer, who basically deposed regarding various steps taken by him in course of investigation. However, during cross-examination, this witness confirmed certain previous statements of PW4 and PW6. According to him, PW4 did not state in his statement recorded under Section 161 Cr.PC that Imamul assaulted Arjuma with an axe on her chest and Muzamil gagged Arjuma with gamocha and when Arjuma fell down, Tozomol, Rahima and Abdul Khaleque caught hold of her and then Imamul and Muzamil twisted her neck. He further confirmed that PW4 did not state before him that the accused persons prevented her when she wanted to go near the deceased.

13. DW1, examined by the appellants, deposed that at about 6 PM, hearing hue and cry, she came to the house of the appellants and found Arjuma lying with injury on a stone. She also stated to have learnt that Arjuma and Samad (PW6) were caught red handed inside the latrine while engaging in illicit activities for which Arjuma jumped from the latrine and fell on the stone. During cross-examination, it was elicited that the latrine in the house of the accused was sanitary one.

14. The learned Sessions Judge, having appreciated the evidence as reproduced above, Page No.# 6/11

recorded the conviction of all the four appellants under Section 302 of the IPC and awarded sentence as indicated above.

15. Learned counsel for the appellants, assailing the impugned judgment, submitted that the learned Trial Court convicted the appellants on the sole testimony of the PW4. The oral testimony of PW4, the sole eye witness of the case, was totally unreliable, because of material contradiction between her evidence in Court and the previous statement recorded under Section 161 Cr.PC as well as under Section 164 Cr.PC and, as such, no reliance could have been placed on the oral testimony of PW4 for recording the conviction of the appellants, submits Mr. Ahmed.

16. Learned Additional Public Prosecutor submitted that though there were certain insignificant discrepancies in the oral testimony of PW4, the prosecution has brought on record sufficient evidence including overwhelming circumstantial evidence to establish the charge against the appellant, and, as such, the impugned judgment does not call for any interference.

17. We have meticulously scrutinized the evidence and materials brought on record. On our assessment of the evidence, we find that the PW4 projected herself as an eye witness to the occurrence and stated that she had seen the appellant Imamul assaulting the deceased on her chest with an axe. She also implicated all the other appellants in the assault of the victim leading to her death, ascribing specific act to each of them. However, in her previous statement recorded under Section 161 Cr.PC, which was duly confronted to her during cross- examination by the defence and confirmed through the Investigating Officer, PW7, she never made those statements as deposed in her evidence. We have also taken note of the statement of this witness recorded under Section 164 Cr.PC, proved as Ext. 3, which shows that her statement recorded under Section 164 Cr.PC was also inconsistent with the statement before the police and deposition in Court, inasmuch as, while deposing in Court, she deposed that the accused Muzamul and Imamul twisted the neck of the deceased, whereas, in her statement under Section 164 Cr.PC, she stated that it was only Imamul, who twisted the neck of the deceased. In her deposition in Court, she made a completely different statement. It is also Page No.# 7/11

evident that the statement of this witness under Section 164 Cr.P.C. was recorded after seven months of the occurrence. When we look at the evidence of PW4 before the Court and her previous statement recorded under Sections 161 and 164 Cr.PC in juxtaposition, we find, that she, not only made serious improvement in her evidence in Court, she also stood contradicted with her previous statement on material particulars rendering her evidence in Court and previous statement mutually destructive. Though, PW4 stated that after killing the victim, her body was thrown on a hay stack, such evidence of PW4 was also belied by other witnesses including the father and brother of the victim.

18. Situated thus, we are convinced that the claim of the PW4 to be an eye witness to the occurrence is hardly worthy of inspiring confidence and, as such, we find force in the submission of the learned defence counsel that the oral testimony of PW4, who claimed to be lone eye witness, is unworthy of placing reliance. Nevertheless, what we have taken note of is that the rejection of the oral testimony of PW4 does not pull down the shutter, reason being that besides the oral testimony of PW4, the learned Trial Court also relied on the circumstantial evidence, which are also equally important for adjudication of this case.

19. The first circumstance relied upon by the learned Trial Court is that the death of the victim was homicidal due to injury inflicted to her. PW5, the doctor, who conducted the autopsy, has categorically stated, that the victim had ante-mortem injuries being fracture of

3rd and 4th cervical vertebra with tearing of inter vertebral ligament as well as injury of the

spinal cord at the level of 3 rd and 4th cervical vertebra and her death was homicidal. The clear opinion of the doctor, that the death was homicidal due to the injuries sustained by the victim, remained unshaken, inasmuch as, the feeble attempt of the appellants to project the death of the victim as suicidal had fallen through. The appellants stated in their statement recorded under Section 313 Cr.PC that the deceased had an illicit relation with Abdul Samad (PW6) and when she was found inside the latrine in compromising position with Abdul Samad, she jumped from the latrine and sustained the injuries. During cross-examination of the prosecution witnesses also similar suggestion was put which was denied by them. The above stand taken by the appellants during the statement recorded under Section 313 Cr.PC. was sought to be substantiated by examining DW1, who deposed that the latrine in the house of Page No.# 8/11

the appellants was sanitary one. She also admitted that she did not see the victim jumping, nor she had seen the deceased with Samad. The evidence of the DW1, thus, takes the defence plea nowhere. What is therefore palpable is that no evidence could be brought on record to show that the latrine was at a considerable height, jumping or falling from where, one may sustain such fatal injuries as found on the neck of the deceased. Therefore, in absence of any evidence to show that the injury sustained by the victim could be caused by jumping from the latrine coupled with the nature of injuries and the clear medical evidence that the death of the victim was homicidal, rendered the plea of suicidal death of the victim taken by the appellants not only false but also absurd one.

20. The evidence of PW1, the father of the victim, that one year before the occurrence, the appellant Imamul, husband of the victim, tried to kill the victim by pouring kerosene and setting fire on her and the statement made in the FIR by this witness that the victim was subjected to physical and mental torture in her matrimonial home clearly established that the deceased was ill-treated by her husband.

21. PW1, PW2 and PW3 clearly stated in their deposition, that on their arrival at the house of the appellants, they have found the victim dead inside her matrimonial house. The Ext.6, sketch map, also shows that the place of occurrence was inside the house. Though pw4 deposed that the body was lying on the hay stack, such evidence of PW4 was belied by the oral testimony of the PW1, pw2 and PW3 as well as Ext. 6. Therefore, evidently the death of the deceased Arjuma was caused inside the matrimonial home in secrecy, where she used to live with her husband/appellant Imamul. No evidence could be brought on record to show, that the appellant Imamul was not present at the relevant time when the victim was killed inside his house. The appellant husband also did not plead his absence from the scene of crime in his statement recorded under Section 313 Cr.PC, rather, took a plea, which ultimately turned out to be absurd and false one, as indicated above. Therefore, the prosecution in the instant case successfully proved the vital circumstances, that the victim was ill-treated by her husband and previously also there was an attempt to finish her by the appellant Imamul and that the victim was killed in secrecy inside the matrimonial home. A further circumstance relied by the learned Trial Court was that the appellant did not put forward any plausible explanation as to how the death of the victim was caused, though the victim was killed in the matrimonial home Page No.# 9/11

in the secrecy, inasmuch as, the defence plea that the victim committed suicide, is found to be absurd and false.

22. It is no doubt true, that the burden is on the prosecution to prove its case beyond reasonable doubt. However, when certain facts are within the special knowledge of the accused, having material bearing in the commission of offence, the accused is obliged to explain such circumstances within his special knowledge, in view of Section 106 of the Evidence Act, which cast a corresponding reversed burden on the accused to explain the incriminating circumstance, which is within his special knowledge. The accused cannot escape the obligation to explain the circumstance within his special knowledge with the specious argument, that the burden to prove the case beyond reasonable doubt lies on the prosecution and the accused has the right to keep silence, because the prosecution cannot be called upon to prove something, which is within the special knowledge of the accused. In the facts and circumstances of the case, when the victim was killed inside the matrimonial home in secrecy and the husband neither took a plea nor was there any material to show that he was not present at the scene of occurrence, he certainly owed an explanation as to how the victim was killed and he cannot get away by simply exercising his right of silence.

23. Reference in this regard may be profitably made to a decision of the Hon'ble Supreme Court in the case of Trimukh Maroti Kirkan -VS- State of Maharashtra, reported in (2006) 10 SCC 681, where in a similar situation, the Apex Court held in paragraph 14 and paragraph 15 as follows:-

"14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab vs. Karnail Singh (2003) 11 SCC 271).

Page No.# 10/11

The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:

(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him."

15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."

24. Upon analysis of the evidence brought on record, we are convinced that the prosecution successfully established the circumstance, namely, (i) the deceased died a homicidal death, (ii) she was subjected to ill-treatment in the matrimonial home by her husband (iii) the victim was killed in the matrimonial home inside the house in secrecy and (iv) the appellant husband of the deceased failed to offer any explanation as to how the victim was killed, which, in our considered view, completed the chain, unerringly leading to the conclusion consistent only with the hypothesis of guilt of the appellant Imamul, husband of the deceased. We further noticed that the false explanation given by the appellant provided an additional link to the chain of circumstance. The Supreme Court in State of Madhya Pradesh -Vs- Ratan Lal reported in 1994 Crl. L. J 131 observed that the false explanation of the accused can be taken into consideration as an additional link to the chain of event presented by the prosecution.

Page No.# 11/11

25. We take note of, that it was only PW4, sister of the deceased, who in her evidence before the Court, tried to implicate all the members of the family of the victim's husband. We have already pointed out that the oral testimony of PW4 was not believable for the reasons stated above. The evidence of the PW4 having been discarded, we find no legal evidence to implicate the other appellants, who are the parents and other members of the family of the husband of the deceased, inasmuch as, all the circumstances brought on record only raises an inference pointing to the guilt of the accused Imamul Haque, the husband of the deceased. This apart, tendency to rope in all the members of the family in matrimonial offence is a common phenomena. Be that as it may, once the oral testimony of the PW4 is discarded, prosecution is left with no legal evidence to connect the appellant Abdul Khaleqe, Rahima Khatun and Tozomol Hussain, parents and brother, respectively of the appellant Imamul with the commission of the offence and, as such, the conviction and sentence of the appellants Abdul Khaleque, Tozomol Hussain and Rahima Khatun cannot be sustained. Therefore, we set aside the conviction and sentence of the appellants, namely, Abdul Khaleque, Tozomol Hussain and Rahima Khatun and confirm and uphold the conviction and sentence against the appellant Imamul.

26. Accordingly, we allow the appeal qua the appellants Abdul Khaleque, Tozomol Husaain and Rahima Khatun and dismiss the appeal qua the appellants Imamul Haque. The appeal accordingly stands disposed of. We are told that the appellants, namely, Abdul Khaleque, Tozomol Hussain and Rahima Khatun are on bail. Bail bonds of these appellants stand discharged.

27. Send down the record.

                                                  JUDGE                        JUDGE




Comparing Assistant