Gauhati High Court
Crl.A./144/2011 on 6 March, 2025
GAHC010007662011
2025:GAU-AS:2446
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRIMINAL APPEAL NO.144 OF 2011
Mustt. Tajima Bibi
W/o- Md. Khamir Ali
R/o village- Futurigaon
P.S- Chaygaon
District- Kamrup (Rural), Assam.
.......Appellant
-Versus-
The State of Assam.
.......Respondent
-BEFORE-
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Appellant(s) : Mr. K. Bhattacharjee, Advocate.
For the Respondent(s) : Mr. P.S. Lahkar, Additional Public
Prosecutor.
Date of Hearing : 06.03.2025.
Date of Judgment : 06.03.2025.
Page 1 of 16
JUDGMENT & ORDER (ORAL)
Heard Mr. K. Bhattacharjee, learned Counsel for
the petitioner. Also heard Mr. P. S. Lahkar, learned
Additional Public Prosecutor for the State respondent.
2. This appeal is preferred against the judgment &
order dated 25.07.2011, passed by the learned Additional
Sessions Judge (FTC) No.2, Kamrup, Guwahati in Sessions
Case No. 137(K)/2008 corresponding to G.R. Case No.
2774/05 of Chief Judicial Magistrates' Court, Kamrup,
Guwahati, whereby the appellant/accused was convicted
under Section 304 (Part-II) of Indian Penal Code
(hereinafter referred to as "IPC") and sentenced to
Rigorous Imprisonment for 3 years and to pay fine of Rs.
1,000/-; in default to Simple Imprisonment for one month.
3. The brief case of the prosecution is that on
25.05.2005 at around 5 p.m. when the informant's wife
deceased Dalima Bibi had gone to the house of Tajima Bibi
i.e. appellant/accused and confronted her about assaulting
her son and daughter, a heated exchange of words had
taken place between them and in the process the
appellant/accused had allegedly administered a kick on the
abdomen of the informant's wife. It is the specific case of
the prosecution that the deceased was 8 months pregnant
at the time of occurrence and though she was taken to
Guwahati Medical College Hospital, however, she died on
28.05.2005. Accordingly, an FIR was lodged and the
Investigating Officer (PW-6) investigated the case and
submitted the Charge-sheet against the appellant/accused
under Section 302 of IPC. The prosecution had examined
as many as 8(eight) PWs and defence had examined
1(one) witness.
4. The trial Court after hearing convicted the
appellant/accused under Section 304 (Part-II) of IPC and
sentenced there under. Situated thus, the present appeal
has been preferred.
5. Mr. K. Bhattacharjee, learned Counsel for the
appellant submits that there are inconsistencies in the
testimonies of the eyewitnesses and therefore the said
testimonies are not trustworthy and credential and hence
the conviction based on such testimonies is liable to be set
aside. He further submits that the informant (PW-1) has
not explained in the FIR as whether the doctor who
examined deceased had been informed about the incident.
He further submits that it has clearly come out from the
prosecution evidence that it was raining at the time of the
incident and therefore the possibility that the deceased
while going to the house of the appellant/accused which is
at an embankment slipped due to the rain and fell on the
ground for which she later on died cannot be ruled out. He
further submits that in fact, the Post-mortem Report and
the opinion of the Medical Officer support the said
possibility. That being so, he submits that there are two
views possible and therefore the view which is favorable to
the accused is to be accepted and hence the conviction
warrants interference.
6. Per contra, Mr. P. S. Lahkar, learned Additional
Public Prosecutor, Assam submits that the testimonies of
the eyewitnesses corroborate each other on all material
particulars and therefore is trustworthy and wholly reliable.
He further submits that minor exaggeration shall not
discredit the version of the eyewitnesses and therefore the
conviction warrants no interference from this Court. He
further submits that it has clearly come out from the
prosecution evidence that the accused had kicked the
deceased on her abdomen when she was 8(eight) months
pregnant and therefore she had the requisite knowledge of
causing death to the deceased. In that view, he submits
that an offence under Section 304 (Part-II) of IPC is clearly
made out. He further submits that the medical evidence
also corroborates the manner of assault as claimed by the
prosecution. He therefore submits that the impugned
judgment & order of conviction warrants no interference
from this appellate Court.
7. I have heard both the learned Counsels appearing
for the contending parties, and also perused the material
available on record.
8. This being an appeal against the impugned
judgment & order of conviction, apt to analyze and re-
appreciate the evidences at the outset. Out of the 8(eight)
prosecution witnesses adduced, 3(three) witnesses are
eyewitnesses which are PW-2, PW-3 and PW-4.
9. PW-2 who is an independent witness deposed
that she knows the deceased and the accused, who are
from her village and that the incident took place 3(three)
years ago. She further deposed that while she was going
to her daughter's house at around 5 p.m. on the date of
the occurrence, she saw the accused kicking the deceased,
however, she did not get chance to stop them. She further
deposed that the accused after kicking the deceased went
inside her house and the deceased was lying on the
ground and when she asked the children nearby why they
were fighting, they told her that it was over their children
issues. She further deposed that thereafter she went near
the deceased and found her unconscious. She further
deposed that PW-3 was standing nearby with a baby in her
arm and accordingly, she called her and told her about the
matter and thereafter they both took the deceased to her
house. She further deposed that the deceased was not in a
condition to talk and many people gathered and though
the deceased was taken to the hospital, later after 3(three)
days she died in the hospital.
During cross-examination she clarified that her
house is one mile away from the place of occurrence and
her daughter's house is 6-7 houses apart from the
deceased's house and in order to get to her house she has
to pass through the road in front of the accused person's
house. She further clarified that she was going to her
daughter's house by crossing the accused person's house
while she saw the accused kicking the deceased. She
further clarified that few small children were present there
and that there were no adult present. She further clarified
that it was drizzling on that day and the road was slippery
because the ground was sandy. She further clarified that
PW-3 and she lifted the deceased and took her home. She
further clarified that the deceased was carrying 8(eight)
months pregnancy at the time of occurrence and she was
weak. She further clarified that she did not see any injury
on the body of the deceased. She denied the suggestion
that she did not tell the police that there was no one
present at the time of the fight except the accused and the
deceased and clarified that she called PW-3 by shouting.
She further denied the suggestion that the deceased
slipped and accused came to get her up.
10. PW-3 who is the daughter of the deceased
deposed that on the date of occurrence, at around 4 p.m.
she was about 100 meters away from the place of
occurrence and that her sister Junu Begum (PW-4) was
holding her younger brother on her lap. She further
deposed that the accused assaulted PW-4 and when her
mother i.e. the deceased went to ask why she had
assaulted PW-4, the accused kicked the deceased in the
stomach. She further deposed that at that time, the
deceased was eight months pregnant. She further deposed
that the deceased fell down as a result of the kick after
which PW-2 and she took the deceased home. She further
deposed that the deceased was unconscious and that after
being kept at home for some time she was taken to the
hospital, however, she died during treatment in the
hospital.
During cross-examination, she clarified that there
is no house in between the accused and the deceased and
that there are other people's houses nearby. She further
clarified that she was at the deceased's house on the day
of the incident and that she had gone to visit her friend's
house and when she arrived back there were lot of people
in the place of occurrence apart from PW-2. She further
clarified that it was a rainy weather on the day of the
incident and that she had arrived at the place of
occurrence earlier and witnessed the accused kicking the
deceased. She denied the suggestion that she came to the
place of occurrence on hearing a hue and cry. She further
denied the suggestion that the deceased slipped due to the
rain and became unconscious and that they had lodged a
false case against the accused.
11. PW-4 who is another daughter of the deceased
and aged about 11 years at the time of deposition,
deposed that the instant occurrence occurred 3 years back
at about 4 p.m. On that day she and Babul (younger
brother) were playing and when Babul went to the veranda
of the accused person's house the accused assaulted
Babul. She further deposed that when she questioned the
accused as why she assaulted her younger brother, the
accused hold her hair and made her fall on a rock and
accordingly they both came back home crying. She further
deposed that thereafter the deceased went to ask the
accused why she had assaulted them by taking them
along with and upon asking the same the accused dealt a
kick on the deceased's upper abdomen and as a result
she fell on the ground. She further deposed that after that
PW-2 and PW-3 lifted the deceased and took her home and
the deceased was unconscious and that thereafter the
deceased was taken to hospital where after few days she
died.
During cross-examination she clarified that
neither she nor the deceased assaulted the accused
person's children and that on the day of the incident
Bhuduri, Meriba and Sana were also playing with them.
She further clarified that when the accused hit her she
cried and at that time the neighbors did not come. She
further clarified that it was raining at the time of
occurrence. She further clarified that Babul, the deceased
and she came to their gateway while the other children
had gone home. She further clarified that there was no
adult present during the fight between the deceased and
the accused and PW-2 and PW-3 came after the deceased
fell and brought her home. She further clarified that the
deceased was pregnant and weak at the time of the
incident. She further clarified that the deceased was at
their gate along with them and did not reach the accused
person's house. She denied the suggestion that the
deceased slipped due to rain and that the accused had not
assaulted the deceased.
12. This takes me to the evidence of PW-1, who is the
informant and the husband of the deceased. PW-1
deposed that the incident took place at around 4 p.m. one
day about 3 years ago on the road and he was at home at
the time of the incident while his younger son and
daughter were playing on the road. He further deposed
that the accused scolded and assaulted them for which
they came home and told their mother and therefore an
altercation took place between the accused and the
deceased and the accused kicked the deceased and the
deceased fell down. He further deposed that many people
gathered there and he also went to the place of occurrence
and that at the time of the incident the deceased was
carrying eight months pregnancy. He further deposed that
when he reached the place of occurrence, he saw that the
deceased was not in a condition to talk. He further
deposed that he took her to their house and took care of
her after pouring water on her and then took her to the
medical at Bhangaghar and that after two days of
treatment she died and accordingly he lodged an ejahar
which was exhibited as exhibit-1.
During cross-examination he clarified that the
house of the accused is situated on the embankment and
their house is located below it. He further clarified that the
police wrote the ejahar for him. He further clarified that
police had not questioned him about the incident. He
further clarified that PW-2 told him that the accused had
kicked his wife/deceased.
13. The evidence of PW-5 is limited to his knowledge
and the deceased being pregnant at the time of her death.
14. PW-8 who is the Medical Officer, who had
conducted the post-mortem, deposed that on 17.08.2005,
he concurred a Post-mortem Report prepared by Dr. P.
Mahanta, Demonstrator, Forensic Medicine, GMCH. He
further deposed that the post-mortem was performed at 4
p.m. on 29.05.2005 and that following injuries had been
detected: contusion 3x2 cm over right hypochondriac
region 2 cm right from midline and 2 cm below right
coastal margin. Remaining all parts of her body was found
normal. He further opined that death was due to syncope
resulting from ventricular fibrillation. Injuries were ante-
mortem in nature and caused by blunt force impact.
During cross-examination he stated that such
type of injury may also result from a fall.
15. In the evidence of Investigating Officer (PW-7) it
has come out that the FIR lodged on 28.05.2005 after the
deceased died and it was accordingly filed against the
accused.
16. From perusal of the above testimonies especially
of the eyewitnesses, it appears that the three eyewitnesses
had deposed that when the deceased had gone to ask the
accused as why she had assaulted her children, the
accused kicked the deceased in her abdomen due to which
she fell down and became unconscious. There is no
inconsistency as regards the material facts accounted by
the three eyewitnesses. It is correct that there are minor
exigencies while accounting the overall incident by the
eyewitnesses, however, the same is not sufficient enough
to throw the testimonies of the eyewitnesses especially
when PW-2 is an independent witness.
17. Reference is made to the decision of the Apex
Court in the case of Laxman and Others Vs. State of
Maharashtra, reported in AIR 1974 Supreme Court
308, wherein the Apex Court has held as hereunder:
"13. Before we discuss the evidence further, we
may observe that Professor Munsterberg, in a book
called 'On the Witness Stand' (p. 51), cited by
Judge Jerome Frank in his 'Law and the Modern
Mind' (see: 1949 ed. p. 106), gives instances of
experiments conducted by enacting sudden
unexpected preplanned episodes before persons
who were then asked to write down, soon
afterwards, what they had seen and heard. The
astounding result was:
'Words were put into the mouths of men who had
been silent spectators during the whole short
episode; actions were attributed to the chief
participants of which not the slightest trace
existed; and essential parts of the tragi-comedy
were completely eliminated from the memory of a
number of witnesses'.
Hence, the Professor concluded: 'We never know
whether we remember, perceive, or imagine.
Witnesses cannot, therefore, be branded as liars in
toto and their testimony rejected outright even if
parts of their statements are demonstrably
incorrect or doubtful. The astute judge can
separate the grains of acceptable truth from the
chaff of exaggerations and improbabilities which
cannot be safely or prudently accepted and acted
upon. It is sound commonsense to refuse to apply
mechanically, in assessing the worth of necessarily
imperfect human testimony, the maxim: 'falsus in
uno falsus in omnibus'."
18. Reference is also made to the decision of the
Apex Court in the case of Anvaruddin and Others Vs.
Shakoor and Others, reported in (1990) 3 Supreme
Court Cases 266, wherein the Apex Court has held as
hereunder :
"8. It is well settled law that evidence of witnesses to
the occurrence cannot be thrown overboard merely
because they are interested and partisan witnesses.
All that the law demands is that their evidence should
be scrutinised with great care and caution to
safeguard against the normal temptation to falsely
implicate others. The trial court had adopted that
approach in evaluating the evidence of the eye-
witnesses. On a critical examination of their evidence
it concluded that their evidence stood corroborated by
medical evidence, in that, it disclosed that Ali
Mohammad had received as many as 18 injuries (13
incised wounds, 2 gunshot wounds, 2 abrasions and
one contusion) whereas the deceased Siraju had
sustained five injuries (four incised wounds and a
swelling). The evidence of PW 1 also stood
corroborated by the evidence of PW 6 Zafaruddin who
wrote the FIR Ex. Ka 3 at the behest of PW 1. The
contents of the FIR also corroborate the testimony of
PW 1. The find of blood, etc. from the scene of
occurrence noted in the Panchnama proved through
PW 7 Om Prakash also lends corroboration to their
testimony. It was, therefore, contended that the High
Court failed to come to grips with the evidence and
approached the matter in a perfunctory manner."
19. Reference is also made to the decision of the
Apex Court in the case of State of U.P. Vs. Noorie (SMT)
Alias Noor Jahan and Others, reported in (1996) 9
Supreme Court Cases 104, wherein the Apex Court has
held as hereunder:
"7. The High Court having acquitted the accused
persons on appreciation of the evidence, we have
ourselves scrutinised the evidence of PWs 1, 2 and 3.
The conclusion is irresistible that their evidence on
material particulars have been brushed aside by the
High Court by entering in the realm of conjecture and
fanciful speculation without even discussing the
evidence more particularly the evidence relating to the
basic prosecution case. While assessing and
evaluating the evidence of eyewitnesses the court
must adhere to two principles, namely, whether in the
circumstances of the case it was possible for the
eyewitness to be present at the scene and whether
there is anything inherently improbable or unreliable.
The High Court in our opinion has failed to observe the
aforesaid principles and in fact has misappreciated
the evidence which has caused gross miscarriage of
justice. Credibility of a witness has to be decided by
referring to his evidence and finding out how he has
fared in cross-examination and what impression is
created by his evidence taken in other context of the
case and not by entering into the realm of conjecture
and speculation. On scrutinising the evidence of PWs
1, 2 and 3 we find they are consistent with one
another so far as the place of occurrence, the manner
of assault, the weapon of assault used by the accused
persons, the fact of dragging of the dead body of the
deceased from the place to the grove is concerned and
nothing has been brought out in their cross-
examination to impeach their testimony. The aforesaid
oral evidence fully corroborates the medical evidence.
In that view of the matter we unhesitatingly come to
the conclusion that the prosecution has been able to
establish the charge against the accused persons and
the High Court committed error in acquitting the three
respondents, namely, Inder Dutt, Raghu Raj and
Bikram. In the aforesaid premises the order of
acquittal passed by the High Court so far as
respondent Noorie is concerned is confirmed but the
order of acquittal so far as accused Inder Dutt, Raghu
Raj and Bikram is concerned is set aside and their
conviction and sentences passed by the learned
Additional Sessions Judge are confirmed. The appeal
is allowed in part. Respondents Inder Dutt, Raghu Raj
and Bikram are directed to surrender to serve the
balance period of sentence. Their bail bonds stand
cancelled."
20. In the present case what clearly transpires from
the evidence is that the accused had kicked the deceased
in her abdomen while she was eight months pregnant. The
said fact is supported by the medical evidence. It is further
observed that defence could not shake the said evidence of
the eyewitnesses. The argument of the learned Counsel
appearing for the appellant as regards two views cannot be
accepted inasmuch as the testimonies of the eyewitnesses
are not shaken by any glaring infirmities. Therefore it
would not be proper to doubt the correctness of their
statements. In fact, the Medical Report corroborates the
nature of assault implicated at the abdomen as claimed by
the eyewitnesses and therefore, the prosecution has
established the guilt of the accused beyond all reasonable
doubts.
21. It appears that the trial Court in the light of the
aforesaid evidence has observed as hereunder:
"In the light of the evidence, discussed above it is
evident that on 25/5/2005 the deceased Dalima
was kicked on her abdomen by the accused Tajima
despite the accused Tajima being aware that
Dalima was carrving and was weak due to
advanced stage of pregnancy though the kick, the
accused was proved to have administered on
Dalima was as a result of the passion built up
during the altercation with the victim. Thus Tajima
was not proved to have been nurturing any
intention to cause the death of the victim at the
time of occurrence and as such the offence does not
come under the purview of S302 of IPC, since in
general course of nature a kick is not sufficient to
cause the death of a person and the accused was
proved to have administered one kick only and had
not followed up with series of kicks. However the
knowledge at the relevant time that Dalima bibi
was weak from advanced stage of pregnancy and
administering the kick on the abdomen of Dalima is
indicative of the fact that the accused knew that
her act may result in the death to Dalima.
Subsequent death of Dalima three days after the
occurrence at GMCH points an accusing finger at
the accused for causing the death of Dalima.
Further the evidence of the M.O. PW8 in relation to
the ext3 post mortem report of deceased Dalima
reveals that during dissection a female dead foetus
in the uterus was found. Which not only
corroborates the evidence of the prosecution with
regard to deceased being in the advance stage of
pregnancy on the day of the occurrence but she
along with her foetus had died as a result of the
impact of blunt force. Thus it is evident that in such
circumstances the kick that was administered by
the accused was sufficient to kill the foetus. But
the evidence clearly indicates that the death of
both the victim and the foetus inside her had
resulted following the kick by the accused. Thus
the accused was proved to have done the act that
falls under exception 4 of S300 of IPC and was
proved to have committed culpable homicide not
amounting to murder and is guilty under section
304 part-II and convicted accordingly."
22. From perusal of the aforesaid judgment of the
trial Court, I do not find any legal infirmities in the
judgment & order dated 25.07.2011, passed by the learned
Additional Sessions Judge (FTC) No.2, Kamrup, Guwahati
in Sessions Case No. 137(K)/2008.
23. As such, the criminal appeal fails and is
accordingly dismissed.
24. Return the Lower Court Record.
JUDGE
Comparing Assistant
