Gauhati High Court
Crl.A./184/2017 on 28 July, 2025
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
GAHC010130412017
2025:GAU-AS:9936
DB
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL
PRADESH)
CRL. APPEAL NO.184 OF 2017
The State of Assam,
Represented by Addl. P.P, Assam.
........Appellant
-Versus-
1. Md. Samser Ali,
S/O. Late Selam Ali.
2. Md. Mir Hussain,
S/O. Md. Samser Ali.
3. Samnur Ali,
S/O. Samser Ali.
4. Rafiqul Hussain,
S/O. Md. Kashim Ali.
5. Mustt. Jalekha Bibi,
W/O Md. Samser Ali.
6. Mustt. Jarina Bibi,
D/O. Md. Samser Ali.
Page 1 of 13
All are resident of Village-Mukalmua,
P.S. Belsor, District-Nalbari.
........Respondents
-BEFORE-
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Appellant : Ms. B. Bhuyan, learned Additional Public
Prosecutor, Assam.
For the Respondents : Mr. J.I. Borbhuiya, Advocate.
Date of Hearing : 28.07.2025.
Date of Judgment : 28.07.2025.
JUDGMENT & ORDER (ORAL)
(Michael Zothankhuma, J)
Heard Ms. B. Bhuyan, learned Addl. Public Prosecutor for
the State (appellant). Also heard Mr. J.I. Borbhuiya, learned counsel
for the respondents.
2. The appellant has filed the present appeal challenging the
acquittal of the respondents by the learned Court of Sessions Judge,
Nalbari in Sessions Case No. 18/2007, G.R Case No. 327/2005, from
the charge under Sections 364/302/34 IPC.
3. The case of the appellant is that on 28.04.2025, one Md.
Hamid Ali (PW-1) lodged an FIR at Belsor Police Station, alleging inter
alia, that his daughter Monowara Begum was missing since the
evening of 25.04.2025. Though a search had been conducted, she
was untraceable. However, on 28.04.2005 at around 1:00 P.M, the
dead body of Monowara Begum was found in a pond located in the
back of the house of the cousin of PW-1, i.e., one Md. Saifuddin. PW-
1 suspected that his daughter had been kidnapped by (1) Md. Samser
Ali, (2) Samnur Ali, (3) Mir Hussain Ali, (4) Mrs. Jalekha Bibi, (5)
Jerina Bibi and (6) Rafiqul Hussain (respondents) on 25.04.2005.
Further, they had murdered Monowara Begum and threw her dead
body into the pond. Belsor Police Station Case No. 41/2005 was
thereafter registered under Sections 302/364 IPC.
4. After investigation was completed, the case I.O submitted
the Charge-sheet, having found a prima facie case under Sections
364/302/34 IPC against the six respondents. The learned Trial Court
thereafter framed charges under Sections 364/302/34 IPC against the
respondents, to which they pleaded not guilty and claimed to be tried.
5. Though the case I.O had listed 28 prosecution witnesses to
bring home the charges under Sections 364/302/34 IPC, the learned
Trial Court examined only 15 prosecution witnesses. Thereafter, the
respondents were examined under Section 313 Cr.PC, wherein they
all took a stand that the evidence adduced against them were false.
6. The learned Trial Court thereafter came to a finding that
there was no iota of evidence against the respondents, regarding the
allegation of kidnapping of the deceased and that the case of the
prosecution had been based on concoction and surmises, without any
convincing and cogent evidence to inspire the confidence of the
Court. As such, the learned Trial Court held that the prosecution had
been unable to prove the case beyond all reasonable doubt.
Consequently, the respondents were acquitted of the charges framed
against them, by giving them the benefit of doubt.
7. The learned Addl. Public Prosecutor submits that impugned
judgment passed by the Trial Court has not taken into consideration
the entire evidence on record. She submits that PW-2, who is the
mother of the deceased, had stated in her evidence that the accused
Jerina Bibi (sister of Mir Hussain Ali), had admitted before the Police
in the presence of the villagers, that the victim was in love with the
accused Mir Hussain Ali at the time of her death and that she was 2
months pregnant. Further, as there was some deformity on the upper
lip of the deceased, the family of the accused Mir Hussain Ali, who is
the boyfriend of the deceased, did not agree to the marriage proposal
between the deceased and Mir Hussain Ali. As such, PW-2 suspected
that the accused persons had murdered her daughter Monowara
Begum.
8. The learned Addl. Public Prosecutor submits that the
evidence of PW-2 is also to the effect that due to the deformity in the
upper lip (cleft lip) of the deceased, the marriage proposal of the
deceased with her boyfriend Mir Hussain Ali had been rejected by the
family of Mir Hussain Ali, which could be a motive for the crime.
9. The learned Addl. Public Prosecutor submits that PW-3, in
her cross-examination, had stated that Jerina Bibi had told the Police
that Mir Hussain Ali had a love affair with Monowara Begum and that
Jerina Bibi had taken away Monowara Begum.
10. The learned Addl. Public Prosecutor also submits that the
entire evidence against the respondents is circumstantial in nature,
inasmuch as, the deceased was last seen with Jerina Bibi, who was
the sister of Mir Hussain Ali, the boyfriend of the deceased.
11. Further, PW-6 had stated that he had seen the deceased
and Jerina Bibi, entering the house of Samser Ali, who was the father
of Mir Hussain Ali (boyfriend). Further, the evidence of PW-1 was to
the effect that he came to know from one Fatema and Bulu that they
had seen the deceased entering the house of Samser Ali and crying
inside the house of Samser Ali.
12. The proposed marriage of the deceased and Mir Hussain Ali
had also been rejected by the family of Mir Hussain Ali, as the
deceased had a cleft lip. She thus submits that due to the above
facts, there was motive present on the part of the respondents to
have killed the deceased. She accordingly submits that the impugned
judgment passed by the learned Trial Court in acquitting the
respondents had been done, by not taking into consideration all the
important evidence that had been adduced by the prosecution
witnesses.
13. The learned Addl. Public Prosecutor accordingly prays that
the impugned judgment should be set aside and the respondents
should be convicted under Sections 302/34 IPC, inasmuch as, their
involvement in the murder of the deceased had been proved by the
mother of the deceased.
14. Mr. J.I. Borbhuiya, learned counsel for the respondents
submits that there is no evidence to prove that the respondents had
killed the deceased. He submits that Fatema and Bulu, who were
listed as PW-13 and PW-14 did not adduce evidence before the
learned Trial Court. Further, this had been clearly spelt out in the
cross-examination of PW-6, where PW-6 had stated that he did not
see the deceased and Jerina Bibi entering the house of the
accused/respondent No. 1 (Samser Ali). He accordingly submits that
there is no infirmity with the decision of the learned Trial Court in
acquitting the respondents, as there was no evidence to show that
the respondents had kidnapped the deceased or murdered her.
15. We have heard the learned counsels for the parties.
16. The evidence of PW-1, who is the father of the deceased, is
to the effect that on 25.04.2005, the accused Jarina Bibi had come to
their house and gone out with the deceased. At around 12 noon, both
the deceased and Jarina had returned back to their house and after
drinking water, they left. Since then they could not find the deceased.
However, at around 12 noon on 28.04.2005, the deceased was found
in a drain in the backside of the house of Saifuddin and Aiyam. PW-1
further stated that since 25.04.2005, all the accused persons were
found absent in their house and the house was under lock and key.
PW-1 further stated that he came to know from one Fatema and Bulu
that they had seen the deceased in the house of the accused
respondent No.1. Further, Fatema and Bulu also mentioned that they
heard the cry of the deceased inside the house of the said accused
person.
17. The evidence of PW-2, who is the mother of the deceased,
is to the effect that on 25.04.2005, accused Jerina, daughter of the
accused respondent No.1 came to their house and took her daughter
to Madrasa Chowk. Thereafter, they returned back and again left the
house. Her daughter did not return. It was only on 28.04.2005, that
the dead body of the deceased was found. Though PW-2 has stated
that an FIR was filed, the records show that the FIR had filed only on
28.04.2005. The evidence of PW-2, which is to the effect that the
deceased was two months‟ pregnant and that there was a deformity
on the upper lip, which was the reason for rejection of the marriage
proposal of the daughter of PW-2 with the accused Mir Hussain, there
is nothing to connect the said allegation with the discovery of the
dead body of the deceased.
18. The evidence of the Doctor and the post-mortem report
does not make any mention of the deceased being pregnant. As such,
we are of the view that no importance can be given to the evidence
of PW-2 that the accused Jarina Bibi had admitted that the deceased
was 2 months‟ pregnant. Further, there is nothing to show as to
whether there was any marriage proposal made on behalf of the
deceased with Mir Hussain.
19. The evidence of PW-3, who is the brother of the deceased
is to the effect that Jarina Bibi had taken out his sister (deceased) on
25.04.2005 at around 8/8:30 a.m. His sister did not return and it was
only on 28.04.2005, that they found the dead body of his sister. PW-3
also stated that the accused Mir Hussain had a love affair with his
deceased sister and he suspected that Mir Hussain and Jarina Bibi had
killed his sister.
20. The evidence of PW-4 is to the effect that Jarina had called
the deceased away from her house on 24.04.2005 and that the
deceased used to visit the house of Mir Hussain with whom she was
having a love affair.
21. The evidence of PW-5 is to the effect that the deceased was
found 3/4 days after she had gone missing. Thereafter, PW-5 was
declared a hostile witness.
22. The evidence of PW-6 is to the effect that PW-5 had told
him that the accused respondent No.1 had gone to the house of PW-5
and told the father of PW-5 how he had killed the deceased.
However, the evidence of PW-5 is silent with regard to the allegation
made by PW-6 in his evidence.
23. Though the evidence of PW-1 is to the effect that the
accused persons had been absent from their house since 25.04.2005,
the same is not borne out by the evidence of the other prosecution
witnesses. There is nothing stated by PW-15, who is the I.O. of the
case, to the effect that the accused respondents had ran away from
their house and they could not be found inside their residence. On the
other hand, it is surprising that the family of the deceased had filed
the FIR only on 28.04.2005, when the deceased had gone missing 3
days earlier on 25.04.2005. This delay in filing the FIR has not been
explained by the appellant or the family of the deceased.
24. In the case of Palani Vs. State of Tamilnadu [(2020)
16 SCC 401], the Supreme Court held that delay in setting the law
in motion by lodging a complaint in Court or FIR at a Police Station is
normally viewed by Courts with suspicion, because there is a
possibility of concoction of evidence against an accused. Therefore, it
become necessary for the prosecution to satisfactorily explain the
delay. Whether the delay is so long as to throw a cloud of suspicion
on the case of prosecution, would depend upon a variety of facts. It,
however, held that even a long delay can be condoned, if the
informant had no motive for implicating the accused. In the case of
State of Madhya Pradesh Vs. Ratan Singh [(2020) 12 SCC
630], the Supreme Court has held that delay in filing an FIR needs to
be explained as the same reduces the chances of embellishment,
fabrication or distortion of memory. In the present case, no reasons
for the delay in filing the FIR has been made by the informant. When
the daughter of PW-1 was missing on 25/04/2025, it was expected
that the FIR would have been lodged on the said date itself. However,
the same having been done only on 28/04/2005. The credibility of
the FIR would have to be looked into carefully. Thus, though a
delayed FIR may not be illegal or fatal, the Court would have to be a
little more circumspect with regard to the genuineness of the content
of the FIR.
25. With regard to the evidence of PW-1 that he came to know
from Fatema and Bulu that they had seen the deceased entering the
house of Samser Ali, wherein she was heard crying, is not proved,
due to the fact that Fatema and Bulu have not adduced any evidence
in the learned Trial Court, even though they were listed as
prosecution witnesses by the police.
26. With regard to whether the last seen together theory could
be applied to the facts of this case, which could point to the
complicity of Jarina in the murder of the deceased, it would be
profitable to refer to the decision of the Hon‟ble Supreme Court in the
case of Dharam Deo Yadav Vs. State of Uttar Pradesh [(2014)
5 SCC 509], where it has been held that the last seen theory is
relevant only when the death is proved to have taken place within a
short time of the accused and the deceased being seen together. This
time gap between the point of time when the accused and the
deceased were last seen alive and when the deceased is found dead
is so small that possibility of any person other than the accused being
the author of the crime becomes impossible.
27. In the present case, Jarina Bibi and the deceased had been
last seen together on 25.04.2005 and the dead body of the deceased
was recovered only on 28.04.2005, i.e., after 3 days. Thus, keeping in
view the decision of the Hon‟ble Supreme Court, the time gap
between the accused and the deceased being last seen together and
the recovery of the dead body of the deceased, shows that the last
seen theory cannot be applied to the facts of this case. There is
nothing to show as to how the accused respondents can be said to be
complicit in the death of the deceased. In the absence of any
clinching evidence regarding motive been established and as the basis
for the death of the deceased has not been established, there is
nothing to connect the accused/respondents with the death of the
deceased.
28. In the present case, there is no eye witness to the manner
in which the deceased had died. In fact, there is nothing to show as
to what investigation has been carried out by the Police between
25/04/2000 and 28/04/2000. There is a blank space from the date
the deceased went missing and till the date of her body being found
three days later. As held in the case of Sanatan Naskar Vs. State
of West Bengal [(2010) 8 SCC 249] by the Supreme Court, the
Doctrine of circumstantial evidence is brought into aid where there is
no eye witnesses to the occurrence and it is for the prosecution to
establish a complete chain of circumstances leading to a definite
conclusion pointing towards the guilt of the accused. In the case of
Tulshiram Sahadu Suryawanshi and another Vs. State of
Maharashtra [(2012) 10 SCC 373], the Supreme Court has
referred to the case of Sharad Birdhichand Sarda Vs. State of
Maharashtra [(1984) 4 SCC 116], wherein it has been held that
certain conditions are to be fulfilled before a case against an accused
can be said to be fully established, based on circumstantial evidence.
Para 8 in the case of Tulshiram Sahadu Suryawanshi (supra), is
reproduced herein below for ready reference :-
"5. In Sharad Birdhichand Sarda vs. State of Maharashtra,
(1984) 4 scc 116, this Court after referring to various earlier
decisions, formulated the following conditions to be fulfilled
before a case against an accused can be said to be fully
established based on circumstantial evidence:-
(1) the circumstances from which the conclusion of guilt is to
be drawn should be fully established. It may be noted here that
this Court indicated that the circumstances concerned "must or
should" and not "may be" established. There is not only a
grammatical but a legal distinction between "may be proved"
and "must be or should be proved" as was held by this Court in
Shivaji Sahabrao Bobade v. State of Maharashtra where the
observations were made: [SCC para 19, p. 807: scc (Cri) p.
1047]
Certainly, it is a primary principle that the accused must be
and not merely may be guilty before a court can convict
and the mental distance between „may be‟ and „must be‟ is
long and divides vague conjectures from sure conclusions."
(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."
29. As can be seen from the above decision of the Supreme
Court, the circumstantial evidence should exclude every possible
hypothesis except the one to be proved and 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. However, in
the present case, the chain of circumstantial evidence is not
complete. In fact, there are glaring gaps between the events/dots
and in the absence of any evidence to show that the appellants were
involved in the death of the deceased, we are unable to come to any
other finding, which is inconsistent with the findings of the learned
trial Court.
30. On considering all the above facts, we do not find any
infirmity with the impugned judgment of the learned Trial Court in
acquitting the accused respondents from the charges framed against
them. The appeal is accordingly dismissed.
31. Send back the TCR.
JUDGE JUDGE
Comparing Assistant
