Smt. Hasina Begum vs The State Of Assam
2021 Latest Caselaw 940 Gua

                                                                              Page No.# 1/12

GAHC010010092017




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

                               Case No. : CRL.A(J)/3/2017

                SMT. HASINA BEGUM

                VERSUS

                1.THE STATE OF ASSAM

                2:MD. BABUL HUSSAIN
                 S/O-LT. ALOM HUSSAIN
                 R/O-ROYAL ROAD
                W. NO.2
                 JORHAT
                 P.S.-JORHAT
                 DIST.-JORHAT
                ASSAM

Advocate for the Petitioner   : DR.B N GOGOI

Advocate for the Respondent : PP, ASSAM

BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE MIR ALFAZ ALI

JUDGMENT & ORDER (ORAL) Date : 12-03-2021 (M.A. Ali, J) Heard learned amicus curiae, Dr. B. N. Gogoi, appearing for the appellant and learned Addl. Public Prosecutor, Mr. M. Phukan for the State/respondent.

2. This appeal is directed against the judgment and order dated 21-12-2016 rendered by Page No.# 2/12

the learned Sessions Judge, Jorhat, in Sessions Case No. 43(J-J)/2011, whereby, the appellant was convicted u/s 302 IPC and sentenced to undergo rigorous imprisonment for life and fine of Rs.10,000/-, in default, to suffer rigorous imprisonment for another six months.

3. The prosecution case, in brief, was that on 10-02-2010, at about 4.30 PM, the appellant inflicted injury to her husband Munna Hussain (deceased) with a knife. He was immediately shifted to Jorhat Medical College & Hospital, where the victim breathed his last at about 6 O'clock in the evening. Younger brother of the deceased (PW-1) lodged a written report at the Jorhat Police Station. Treating the said written report as FIR, police registered Jorhat PS Case No. 92/2010 u/s 341/325/302/307/34 IPC and commenced investigation. In course of investigation, police recorded the statement of the witnesses u/s 161 CrPC, seized some incriminating articles, subjected the body of the victim to post mortem examination and after completing the investigation submitted charge-sheet against the present appellant, who eventually stood trial for the offence of murder, before the learned Sessions Judge.

4. During the course of trial, learned trial court framed charge against the appellant u/s 302 of the Indian Penal Code, which was abjured by her. In order to substantiate the charge, prosecution examined 15 witnesses including the doctor and the investigating officer. After completion of the prosecution evidence, the accused/appellant was examined u/s 313 CrPC. During the examination u/s 313 CrPC, the appellant took the plea of innocence and stated that her husband was killed by PW-1 and three others, including the two sisters of the deceased and that she had been falsely implicated in the case. The appellant also examined two witnesses in her defence. Appreciating the evidence and materials brought on record, learned Sessions Judge convicted the appellant u/s 302 IPC and awarded sentence as indicated above.

5. Assailing the conviction and sentence of the appellant, Dr. B.N. Gogoi, learned amicus curiae, submits, that the learned trial court failed to take into account the defence plea as well as the evidence adduced by the accused and also failed to appreciate the prosecution evidence in its proper perspective. The lone eye witness, being the minor son of the deceased, was declared hostile and the testimony of the PW-1 (informant) was also not reliable, inasmuch as, his testimony was in conflict with the medical evidence, and as such, the prosecution evidence fell short of proving the charge against the appellant beyond Page No.# 3/12

reasonable doubt, submits Dr. Gogoi. Learned Addl. Public Prosecutor supporting the conviction and sentence of the appellant contends, that though, the direct evidence was scanty, prosecution case has been adequately proved by the circumstantial evidence, and therefore, the impugned judgment calls for no interference.

6. We have considered the submission made by the learned counsel for both the sides and also carefully perused the record including the evidence as well as the impugned judgment.

7. Since improper appreciation of the prosecution evidence and failure of the learned trial court to consider the defence evidence are the main attack against the impugned judgment, it would be apposite to scrutinize the evidence brought on record once again.

8. The informant, Babul Hussain was examined as PW-1. He deposed, that at about 2.30 PM, he saw the deceased entering his house followed by the accused, who shut the door. After about 20 minutes, when he was in the rear side of his house, one Imran Hussain (PW-

6) raised alarm that "Munna is being cut". Immediately he came and noticed the deceased lying on the path in front of the house. He also noticed trail of blood from the house of the deceased to the footbridge over the drain in front of the house. He also stated to have noticed penetrative injuries on the abdomen inflicted by knife. This witness further stated that the accused reached the police station before lodging of the FIR (Ext.-1) by him. He also stated that police seized a tawa (frying pan) vide seizure list (Ext.-2) on being produced by the accused from her house. According to PW-1, a blood stained shirt of the deceased and a blood stained bed-sheet were also seized by police vide Ext.-3 in his presence. During cross- examination, it was elicited that there was no dispute between himself and the accused. It was further elicited that the deceased occasionally consumed liquor.

9. PW-5 stated that hearing noise, she, accompanied with her daughter rushed to the deceased and found him lying on the road in injured state. She further stated that on being enquired by her daughter, the victim told that the injury was inflicted by his wife Hasina Begum (accused). PW-5 also stated to have come to know from the people gathered at the place of occurrence that the accused ran away with her son. The testimony of this witness as Page No.# 4/12

to dying declaration remained unchallenged.

10. PW-6 deposed that while he was coming back home from work, he noticed the appellant running from the side of her house carrying a knife in her hand. He also noticed, Munna lying on the road with injuries profusely bleeding. Immediately he called Babul(PW-1), who shifted the victim to hospital.

11. PW-7 deposed that he had noticed the accused running with her son, carrying a knife in her hand followed by her husband(deceased), who had bleeding injury. He further stated that the deceased could not proceed much and after moving a little distance, he fell down on the road. Immediately people assembled there and the victim was shifted to hospital.

12. PW-8 deposed that while he was proceeding to the mosque for offering "namaz", he saw the appellant going towards the town carrying a knife in her hand. He also stated to have noticed the deceased following her. While coming back after offering "namaz", he heard that Munna expired.

13. According to PW-9, he saw Munna lying on the road in front of his house in injured state and he was present at the time of preparing the inquest report. He also proved the inquest report (Ext.-5). During cross-examination of this witness, it was elicited that the deceased often consumed liquor and sometimes used to quarrel with his wife.

14. PW-10 was also a witness to the inquest report. PW-11 was also a post occurrence witness, inasmuch as, according to him, when he came back from work, he noticed the deceased in injured state. He further stated that though, the deceased sustained injury, he was in a conscious state and was in a position to speak. This witness also stated during cross- examination that the deceased sometimes used to take liquor and talked in loud voice.

15. PW-12 was the scientific officer, who conducted the serological test of the seized articles being a knife, a bed-sheet, a blood stained shirt and the blood sample collected from the place of occurrence. According to PW-12, all the blood samples gave positive test for human blood of Group-A.

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16. The Dr. Vikramjeet Baruah (PW-13), who conducted autopsy on the body of the deceased found the following injuries :-

"(i) lacerated injury over the side of scalp with fracture.

(ii) lacerated injury over left inner part of thigh."

17. The doctor (PW-13) opined that the "cause of death was shock and comma, as a result of injuries sustained by the deceased and all the injuries were ante mortem." He also stated, that the injuries sustained by the victim could be caused by the heavy iron frying pan, which was shown to him at the time of deposing before the court.

18. The son of the deceased was examined as PW-2. He testified that quarrel was going on between his mother and father and at about 3.45 PM his father attempted to assault his mother, whereupon, his paternal uncle resisted him from assaulting his mother. PW-2 also stated that in course of scuffle, the knife hit the head and belly of his father resulting into his death. He also stated that his father had attempted to assault his mother with a knife and his father also threw a "tawa" towards his mother. He also admitted to have made a statement before the Magistrate, which was proved as Ext.-6. This witness was however, declared hostile by the prosecution.

19. PW-3 & PW-4 were formal witness to the seizure list and they had no knowledge about the occurrence. PW-14, a Sub-Inspector of Police attached to the Jorhat Police Station stated, that on 10-02-2010 at about 6 PM, while he was at the police station, the accused Hasina Begum came to the police station with a knife of about 8 inch long and disclosed that her husband used to torture her regularly, which became intolerable for her and therefore, she had struck her husband with the knife and handed over the knife to police. He further stated, that he seized the knife and made a GD Entry being GD Entry No. 432 dated 10-02-2010, which has been proved as Ext.-12.

20. PW-15, Sub-Inspector Manish Ch. Adikary attached to Bugdoi Police Outpost stated, Page No.# 6/12

that the In-Charge of the outpost received an information that the accused Hasina Begum committed murder of her husband and made a GD Entry being GD Entry No. 270 dated 10- 02-2010, which has been proved as Ext.-13, which shows that the second officer of the Jorhat Police Station informed the In-Charge of the outpost, that the accused Hasina Begum surrendered before the Jorhat Police Station and on the basis of the said informant he was entrusted to undertake the investigation. He further stated, that later on, the FIR (Ext.-1) was lodged before the Jorhat Police Station. This witness further stated that he arrested the accused, who confessed before him that she had hit her husband with a frying pan and also disclosed that the frying pan was concealed in the bathroom. Accordingly, he along with the accused came to the house of the deceased and seized the frying pan vide Ext.-3 on being produced by the appellant. He also proved the disclosure statement of the accused as Ext.- 14, on the basis of which the frying pan was seized.

21. DW-1, Mrs. Binu Bhuyan and DW-2, Paresh Dutta deposed that on the relevant day they came to meet one "Junab", who was a tenant under the deceased. According to DW-1, as the "Junab" was not available in his rented house, she kept waiting in the house of the accused. DW-1 further stated, that while she was sitting with the accused, she heard somebody screaming and the accused told, that it was the scream of her husband and thereafter the accused came out of her house with her son and a knife in her hand, with which, she was cutting vegetables. DW-1 also stated that many people assembled at the place of occurrence. She further stated to have noticed the husband of the accused being assaulted by many people. This witness further stated that in his opinion the accused did not commit the murder of her husband. According to DW-2 when the entered the house of the deceased, he noticed the accused cutting vegetables with a knife and hearing scream outside the house, the accused came out taking her son along, and carrying a knife in her hand. DW- 2 also followed her and saw Munna Hussain being assaulted by some persons. After seeing the incident, he came back home and on the next day, he heard that Munna died. DW-1 stated that he saw 4/5 persons assaulted the deceased. During cross-examination, DW-1 stated that he didn't inform the police about the occurrence and he came to depose on the request of the accused.

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22. A dispassionate scrutiny of the oral testimony of the prosecution witness would show that though, PW-1 & PW-6 did not see the actual occurrence, the oral testimony of PW-1 stood corroborated by the oral testimony of PW-6 to the extent, that PW-6 having seen the deceased in injured state raised alarm, hearing which, PW-1 came running to the place of occurrence and both of them saw the victim lying on the road and they also saw the accused running away with a knife in her hand. The oral testimony of these two witnesses to the extent that the deceased was lying in injured state and PW- 6 raised alarm, hearing which, the PW-1 came to the place of occurrence and shifted the deceased to hospital and that both of them saw the appellant running away from the house with a knife in her hand and the testimony of the PW-1 that he noticed trail of blood from the house of the deceased to the footbridge remain unimpeached during cross-examination.

23. We have noticed that the oral testimony of PW-1, Babul Hussain, that the deceased sustained penetrative injuries on his head and abdomen does not find support from the medical evidence, inasmuch as, as per medical evidence, there was no injury on the abdomen and the two injuries sustained by the victim were on the head and on the inner part of the thigh, respectively. The inquest report also shows that there was no penetrative injury on the abdomen of the victim. Therefore, this part of the evidence of PW-1 that the deceased sustained penetrative injury on his abdomen appears to be an embellishment or improvement. It must be borne in mind that some amount of embellishment or improvement in the evidence, more particularly, in respect of the witnesses, who are closely related to the victim and affected by the crime is quite natural, inasmuch as, such embellishment or improvement in the evidence may be due to anxiety of getting the wrong doer punished or because of hostility to the wrong doer, and as such, does not deserve much importance. Unless it goes to the root of the matter, which is not the case herein. Be that as it may, merely because of some embellishment, in the oral testimony, the entire evidence of the witnesses cannot be brushed aside, if otherwise found to be reliable. Because the maxim "falsus in uno falsus in omnibus" is not the rule of evidence in criminal trial, rather, the court is obliged to "disengage truth from falsehood and rift the grain from chaff" to reach the truth. Evidently the PW-1 was not a witness to the actual occurrence, inasmuch as, he did not see the accused assaulting the deceased.

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24. The accused during her examination u/s 313 CrPC admitted that she went to the police station with her son holding the knife in her hand and deposited the same with the police. That the accused surrendered before the police station and deposited the knife with the police immediately after the occurrence has also been corroborated by the oral testimony of PW-14, investigating officer, who stated that at about 6 PM on the relevant day, the accused arrived at the police station with a knife in her hand, whereupon he made the GD Entry, which was proved as Ext.-12. Though PW-14 deposed, that the accused made confession before him, the appellant, however, denied to have made any confession. Be that as it may, the so- called confession made before the police is otherwise also inadmissible evidence. However, the fact remains is that the evidence of PW-1, PW-6 and PW-14 as well as the GD Entry No. 432 dated 10-02-2010, which has been proved as Ext.-12, clearly established that immediately after the occurrence the accused

surrendered before the police and deposited a knife, which was seized by police. This conduct of the accused assumes significance as relevant fact having bearing in the commission of offence in view of Section 6 of the Evidence Act and illustration (a) thereto. Illustration (a) reads as under :-

"(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact."

25. The testimony of PW-7 & PW-8 that they saw the accused running with her son carrying a knife in her hand followed by the deceased in injured state and after moving a little distance the deceased fell down on the road in front of the house remained unimpeached. Therefore, the above evidence of PW-7 & PW-8 coupled with the oral testimony of the PW-1 that there was trail of blood from the house of the accused to the bamboo footbridge in front of the house of the accused/victim, where the deceased was lying, as well as, the oral testimony of PW-15 that a blood stained bed sheet was seized from the house of the accused clearly established, that the place of occurrence was not on the road, where the victim was lying in injured condition, rather, the place of occurrence was inside the house.

26. The PW-2 was declared hostile by the prosecution. We however, take note of, that the statement of PW-2 was recorded by the Magistrate u/s 164 CrPC immediately after the Page No.# 9/12

occurrence, which has been proved as Ext.-6. In his statement recorded u/s 164 CrPC, the PW-2 stated that his father often used to quarrel with his mother after taking liquor. He also stated that his father used to assault and drive out his mother from the house and they had to spent night in the house of others. PW-2 also stated in his statement u/s 164 CrPC, that on the day of occurrence, at about 1.10 PM, the deceased came home in inebriated condition and also rebuked and assaulted her mother, whereupon his mother hit his father with a "tawa", which was lying nearby. Evidently a frying pan was seized by police during investigation, on being led and produced by the accused herself, which we find to be valid piece of evidence u/s 27 of the Evidence Act. The doctor in her cross-examination also stated that the fatal injury on the head of the deceased, which caused his death, could be caused by "tawa" (frying pan).

27. Though the statement of witness recorded u/s 164 CrPC is not evidence and falls in the category of previous statement, there is a fundamental difference between the previous statement of the witness recorded u/s 161 CrPC and 164 CrPC. The statement recorded u/s 161 CrPC can be used only for the purpose of contradicting the maker of the statements, whereas, the statement u/s 164 CrPC can be used both for corroboration and contradiction. The oral testimony of PW-2 and his statement recorded u/s 164 CrPC immediately after the occurrence shows, that there was consistency in his version at least to the extent, that there was quarrel and fight between the accused and the deceased on the relevant day. That the deceased used to consume liquor and picked up quarrel with the accused and subjected her to physical assault also finds support from the oral testimony of PW-9 who testified, that often the accused consumed liquor and used to quarrel with his wife as well as the testimony of PW-10, who testified that sometimes the accused used to take liquor and talked in loud voice and also the testimony of PW-1, who deposed that deceased occasionally consumed liquor. Thus, the oral testimony of the PW-1, PW-9 & PW-10 lent support to the testimony of the PW-2 that the deceased rebuked and attempted to assault the accused, under the influence of liquor. Therefore, the testimony of the PW-2, who was declared hostile, at least to the extent, that deceased consumed liquor and there was quarrel and fight between the accused and deceased and accused hit the deceased with a frying pan is consistent with his previous statement recorded u/s 164 CrPC, and the testimony of the PW-9 & PW-10. The Page No.# 10/12

recovery of the frying pan on being lead by the accused and also the evidence of the doctor that the injury sustained by the victim could be caused by the said frying fan reinforced the testimony of the PW-2 that in course of fight accused hit the deceased with the frying pan.

28. The law regarding acceptability of the testimony of a hostile witness is no longer res- integra. It is the settled position that testimony of a hostile witness does not get washed off the record, merely because of the prosecution declaring the witness hostile or disowning the statement of the hostile witness. The testimony of the hostile witness to the extent found to be consistent with other prosecution evidence can very well be acted upon. Therefore, the testimony of the PW-2, that there was fight between the victim and accused being husband and wife and the accused hit the deceased with the frying fan, having been found consistent with and corroborated by other prosecution evidence, in our considered opinion, can very well be acted upon as a reliable piece of evidence.

29. Though DW-1 & DW-2 deposed that they came to meet one "Jonab", who happened to be a tenant of the accused and they kept waiting in the house of the accused as the "Jonab" was not available in his rented house and had seen the deceased being assaulted by 4/5 persons, none of this DW-1 or DW2 stated, as to who were the 4/5 persons assaulted the deceased. They even did not mention the name of PW-1, who was evidently known to them. Rather, DW-2 stated that the accused was not among the 4/5 persons, who assaulted the deceased. They also did not state specifically as to where the victim was assaulted, except saying, that victim was assaulted outside the house. We have already noticed that the prosecution evidence clearly established that the occurrence took place inside the house, and not outside the house as sought to be projected by DW-1 and DW-2. That being so, the testimony of DW-1 and 2 that the victim was assaulted outside the house was belied by the unimpeached testimony of the prosecution, more particularly, the oral testimony of PW-1, PW-6 and PW-7 & PW-8 and thereby rendered the testimony of the DW-1 and DW-2, unworthy of inspiring confidence.

30. The GD Entry made by the police upon arrival of the appellant at the police station and depositing the knife does not contain any whisper or even a remotest indication that injury of Page No.# 11/12

the deceased was inflicted by someone else. She also did not lodge any FIR, nor she informed the police anything about the victim being assaulted by some other persons, along with PW-1. When she admittedly arrived at the police station at 6 O'clock and the FIR was lodged by PW-1 after one hour, i.e., at 7.10 pm as evident from Ext.-1, what prevented the accused to lodge he FIR or inform the police, what she stated in her statement recorded u/s 313 CrPC. Therefore, all these facts and circumstances crystallizes that the defence plea raised during examination u/s 313 CrPC had fallen flat.

31. Situated thus, the oral testimony of PW-2, to the extent that the accused assaulted the victim with the frying pan which successfully stood the test of truth, the evidence of the doctor that fatal the injury suffered by the victim could be caused by the frying pan, recovery of the frying pan on being led by the accused, the dying declaration as deposed by PW-5 coupled with the post occurrence conduct of the accused as well as the falsity of the defence plea leaves no room for doubt that it was none, but the appellant, who had inflicted the injury on the head of the deceased, which caused his death. What is however, discernible from the evidence as alluded hereinabove is that the accused assaulted the victim with a frying pan which is not a weapon, rather a cooking appliances readily available in every house. It is also in the evidence that the accused was subjected to physical torture and there was quarrel and fight between the accused and the deceased and in course of such fight, the appellant hit the victim with the "tawa". Evidently only a single blow was given on the head, being vital part of the body, inasmuch as, the other injury found on the thigh of the victim was simple in nature. Therefore, all these material facts established by the prosecution evidence, viz., that the accused often used to assault the victim being in inebriated condition, and on the day of occurrence also, in course of such quarrel, the accused gave a single blow to the victim with a frying pan at the heat of passion, speaks loud and clear that there was no pre-meditation on the part of the accused nor she had any intention to cause death or such bodily injury as is likely to cause death and the injury was caused at the heat of passion in course of quarrel and fight between the husband and wife. Therefore, having regard to the facts and circumstances of the case, though, knowledge can be attributed to the accused that the injury might cause death, no intention, either to cause death or bodily injury as is likely to cause death can be attributed to the accused, and as such, in our considered opinion, the Page No.# 12/12

conviction and sentence of the appellant u/s 302 IPC are not sustainable. Accordingly, we set aside the conviction and sentence of the appellant u/s 302 IPC, instead convict her u/s 304 Pt.-II IPC.

32. It appears from the record that the accused has been in jail for more than 4 (four) years. Thus, having taken note of the facts and circumstances of the case in its entirety leading to the commission of offence by the accused, we are of the view that sentence for the period, which the accused had already undergone in custody during investigation and trial would meet the ends of justice. Accordingly, we sentence the appellant to undergo rigorous imprisonment for the period, which she had already undergone in custody.

33. The appeal is partly allowed with the modification as indicated above. The appellant be released forthwith, if not required in any other case.

34. Send back the LCR.

35. Before parting, we appreciate the assistance rendered by Dr. B.N. Gogoi, learned Amicus Curiae and hereby provide that he will be paid Rs. 7,500/- as her professional fee. Upon production of a copy of this judgment, the Gauhati High Court Legal Services Committee, Guwahati shall pay the said fee to the learned Amicus Curiae, Dr. B.N. Gogoi.

                                    JUDGE                               JUDGE




Comparing Assistant