Md. Furkan Ali vs The State Of Tripura Represented ...
2022 Latest Caselaw 376 Tri

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                        HIGH COURT OF TRIPURA
                           A_G_A_R_T_A_L_A
                            Crl.A(J). No. 38 of 2020

1.     Md. Furkan Ali, son of late Abdul Karim, Village: Pyaricherra, P.S.
       & P.O. Kadamtala, Sub-Division: Dharmanagar, District: North
       Tripura, Pin-799261.
                                                           .....Appellant

                                 -V E R S U S-

1.     The State of Tripura represented by the Secretary Home
       Department, Government of Tripura, Agartala, Tripura (West).
                                                        ..... Respondent.

B_E_F_O_R_E HON'BLE MR. JUSTICE T. AMARNATH GOUD HON'BLE MR. JUSTICE ARINDAM LODH

For Appellant(s) : Mr. J. Majumder, Advocate.

For Respondent(s)            :      Mr. R. Datta. P.P.
Date of hearing              :      23.03.2022
Date of delivery of
judgment and order           :      30.03.2022
Whether fit for reporting    :      NO

                            JUDGMENT & ORDER

[T. Amarnath Goud, J]

Heard Mr. J. Majumder, learned counsel appearing for the appellant and Mr. R. Datta, learned Public Prosecutor appearing for the State of Tripura-respondent.

[2] This appeal has been filed under Section-374 of the Code of Criminal Procedure, 1973 against the judgment and order dated 28.11.2019 and sentence dated 30.11.2019 passed by the Learned Sessions Judge, North Tripura, Dharmanagar, in connection with Case No.S.T. (Type-1) 03 of 2018 and sentenced him to suffer rigorous imprisonment for life for the offence punishable under Section-302 of IPC and also to pay a fine of Rs.10,000/- with default stipulations.

[3] The factual backdrop of the case, in a nut shell, is that Sri Kiran Shankar Choudhury (PW-16), Sub-Inspector of Police of Kadamtala Police

Station lodged a suo motu complaint with the Officer-in-Charge, Kadamtala Police Station stating inter alia that on 19.09.2015 at about 0605 hours Md. Furkan Ali (convict appellant) appeared at Kadamtala Police Station and disclosed that he killed his ex-wife Ayarun Necha, daughter of Md. Abdul Jabbar of South Pearacherra with a "dao" at about 0100 to 0130 hours on the night of 19.09.2015 at his matrimonial house while she was sleeping. The fact was entered in the GD and police rushed to. The spot to verify the matter and police found the dead body of the woman was lying in front of the entrance of the dwelling hut and the body was having marks of severe injuries on her throat to neck and on her right arm.

[4] On the basis of the aforesaid complaint Officer-in-Charge, Kadamtala Police Station registered Kadamtala Police Station case No. 2015 KDL 078 for commission of offences punishable under Sections- 457/302/201 of IPC against accused Furkan Ali and endorsed the case to Sri Sankar Das, Sub-Inspector of Police for investigation. On completion of the investigation and having found prima facie case the Investigating Officer furnished charge sheet No. 38/17 dated 30.11.2017 against accused-appellant Furkan Ali for the commission of offences punishable under Sections- 457/302/201 of the Indian Penal Code.

[5] Upon receipt of the aforesaid Charge-Sheet and on perusal of the same Ld. Chief Judicial Magistrate, North Tripura, Dharmanagar took cognizance of the offences punishable under Sections- 457/302/201 of IPC against the appellant and copies of the incriminating documents were supplied to the appellant in compliance to the provision of Section-207 of Cr.P.C and since the offences are triable exclusively by the Court of Session, the case record was committed to this Court.

[6] Subsequently upon hearing both sides on the point of framing of charge being prima facie satisfied, charge under Section-302 of IPC in one head was framed against the appellant Furkan. After closure of the prosecution evidence, the convict-appellant was examined under Section-313 of Cr.P.C. with reference to the incriminating circumstances which were elicited from the evidence on record and the incriminating evidence were read over and

explained to the appellant in Bengali in open court to which he denied the truth of the prosecution evidence claiming himself to be innocent and also denied to adduce any witness on his behalf.

[7] To substantiate the charge, the prosecution adduced as many as 20 [Twenty] witnesses including the complainant and also exhibited certain relevant documents and materials [Exbts.1 to 13/2]. Thereafter, the accused-appellant was examined separately under Section-313 of Cr.P.C. for having his response in respect to the incriminating materials those surfaced in the evidence as adduced by the prosecution.

[8] The appellant herein, being aggrieved by and dissatisfied with against the impugned judgment and order of conviction dated 28.11.2019, has preferred this present appeal.

[9] In support of the case of the convict-appellant, Mr. J. Majumder, learned counsel appearing for the appellant has submitted that though in the judgment, it is not clear whether any other thing else were exhibited but, from the cross-examination of the PW-15, it would be evident that the report of the State Forensic Science Laboratory were marked as Exhibits-B, D, F, G and H. It is also not clear from the evidence, whether the post mortem report were exhibited. It is further not clear that what are the Exhibits-A, C and E.

[10] He has further contended that the finding of the learned Court below is based on surmise and conjuncture, hence the findings are liable to be quashed and the sentence passed by the Court below is liable to be set aside. The finding of the trial Court regarding uncorroborated and broken chain of circumstantial evidences is not based on the principles of law laid down in regard to the evidences, hence, the finding of the trial court is perverse and bad in law and consequently, the judgment and order of conviction as passed by the Court below needs to be interfered with.

[11] Mr. Majumder, learned counsel has averred that the finding of the Court below regarding recovery of weapon of offence is contrary to the principles of law laid down for discovery of weapon of offence; the findings

are liable to be quashed. He has further submitted that the extra judicial confession alleged to be made by the appellant is contrary to law as laid down in regard to the reliance of the extra judicial confession. The finding of the learned Court below regarding presence of human blood stain is totally perverse. The learned trial Court used the materials which were not asked to the appellant at the time of his examination under Section-313 of Cr. P.C., hence, the findings of the Court below are liable to be quashed and consequently, the sentence as passed by the learned trial Court is liable to be set aside.

[12] Mr. Majumder, learned counsel has further argued that all the witnesses are hearsay in nature and there is no direct evidence and also no eye witness and there was no motive of the accused to commit the murder and the recovery of the weapon of offence is doubtful and no complaint was made b y any of the family members of the deceased and the recovery of the wearing apparels of the accused is doubtful and no blood stain was found on the wearing apparels of the accused.

[13] In view of above observations and submission made by the counsel for the appellant and the materials on record, this Court thinks it necessary to discuss the evidences once again. It reveals from the evidence of PW-7 that before 12/13 months earlier from the date of her death her separation took place with Furkan Ali as per Muslim law, "talaq"was given to Ayarun Necha by her husband and even after "talaq"she was not in peace and whenever she went on REGA works Furkan Ali used to threaten her uttering that she used to talk with other persons and the witness came to know from Rowab Ali (PW 10) and Sonahar Ali (PW 8) that Furkan Ali desired that he would cut Ayarun Necha since Ayarun Necha talked with other persons even after "talaq". But, in cross-examination of PW-7, he has stated that "when police examined me I did not stated to the police that I caem to know from Sunahar Ali and Rowab Ali that Furkan Ali 10/12 days earlier before her death disclosed them that if he get an opportunity he would cut Ayarun

Necha into pieces."As such, his version is not trust worthy for consideration.

[14] The case in hand is solely based on circumstantial evidence and there is no eye witness. In these circumstances, naturally, it would be very difficult for the prosecution to collect strict proof to discharge from burden for drawing only inference towards the guilt of the appellant. The Court cannot accept the same degree and strict prove of circumstances as is required in other cases of circumstantial evidences. There is no such circumstantial evidence to link the accused-appellant with the alleged crime.

[15] It is pertinent to mention herein that none of the witnesses have seen the alleged crime. The time tested rule of circumstantial evidence is that, the circumstances must form a complete chain, consistent of the guilt of the accused and inconsistent with his innocence. The learned Sessions Judge while scripting the judgment had rightly borne in mind the golden rule circumstantial evidence as exposited by the Apex Court in the criminal justice system. In Hanumant Govind Nargundkar and Another v. State of Madhya Pradesh, reported in AIR 1952 SC. 343 the Apex Court propounded the rule as under:

"......It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused......"

[16] In another celebrated judgment in Sharad Birdhichand Sarda Vrs. State of Maharastra, reported in AIR (1984) SC 1622, in paragraph-152 Honn‟ble Apex Court was pleased to expound as follows:

"152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(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 & Anr. v. State of Maharashtra, reported in (1973) 2 SCC 793: (AIR 1973 SC 2622, where the following observations were made:

"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.

The Hon'ble Supreme Court in the case of G. Parshwanath Vs. State of Karnataka; reported in (2010) 8 SCC 593, has observed as follows:

"23. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of

the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The Court thereafter has to consider the effect of proved facts."

[17] PW-16, Sri Kiran Sarkar Choudhury (SI), the complainant herein, he has deposed in his evidence that on 19.09.2015 he was posted at Kadamtala P.S. as SI of police as well in charge of the PS and on that day the accused-appellant appeared with a „dao‟ in hand which was staining with blood and he disclosed that he has killed his ex-wife in her dwelling hut. Accordingly, the said information was entered in the GD vide No.07 dated 19.09.2015 and thereafter for verifying the information he along with other police officials went to the spot and found the dead body. Thereafter, he filed suo moto complaint to the O/C of the PS. In this regard learned counsel appearing for the appellant has submitted that under Section-27 of the Evidence Act how much of information received from the accused may be proved. For the purpose of reference Section-27 of the Evidence Act may be reproduced hereunder:

"Section-27-How much of information received from accused may be proved- provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

[18] Regarding extra judicial confession, we are of the considered opinion that it needs to be a detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a confession are required to be verified. If it is not done, no conviction can be based only on the sole basis thereof. Extra-judicial confession must be established to be true and made voluntarily and in a

fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it. [Ref. Sk. Yusuf v. State of W.B. [(2011) 11 SCC 754] and Pancho v. State of Haryana [(2011) 10 SCC 165].

[19] Another issue raised by Mr. Majumder, learned counsel appearing for the convict-appellant that the son of the accused was not examined. This may have been fatal to the prosecution if there was no other evidence. In the present case there was one eyewitness who was admittedly present and it is well settled law that it is the quality of evidence and not the quantity which is material. In the present case the son of the appellant was not examined, who would have been taken a vital role in the case in hand.

[20] In our ultimate analysis and having regard to the evidences on record, it is crystal clear that there is no doubt that the question of sentence is a matter of discretion and such discretion has to be exercised along with accepted judicial lines. To impose adequate punishment according to law is not only the duty of the Court, but it is social obligation clearly enjoined upon it keeping in mind not only the crime but also the criminal.

[21] There is no eye witness and corroborating evidence to link the accused-appellant with the alleged offence. Even, the discovery and disclosure statement are also not in favour of the prosecution case. The complainant is only a circumstantial witness and he relied upon the confession of the accused- appellant. The learned trial Court has passed this impugned judgment and order of conviction in total violation of principles of natural justice. In criminal trials so long the accused is not proved guilty, he is to be treated as innocent. But on

perusal of the impugned judgment and order of conviction passed by the learned Court below, it would be evident that the court below has failed to appreciate the legal prospect of the present case.

[22] The way the prosecution has projected the case and being found serious contradictions and inconsistencies in the statements in course of trial, it would be very difficult for this Court to believe the projected case of the prosecution. It is settled proposition of law that the charge framed against the accused person has to be established and proved beyond any shadow of doubt. Suspicions, however, grave in nature, should not amount to prove. The discrepancies which are found in this case as analyzed above, appeared to be abnormal in nature which is not expected from a normal person. After cautious scrutiny of the evidence and considering the entire chain of circumstances, we find it difficult to arrive at a finding to draw the hypothesis of guilt against the accused-appellant.

[23] In the backdrop of above analysis, we are of the view that the prosecution has failed to establish their projected case and consequently, the instant appeal is allowed. Accordingly, the order of conviction and sentence passed by the learned Sessions Judge, North Tripura, Dharmanagar, in Case No. S.T. (Type-1) 03 of 2018 vide judgment and order of conviction and sentence dated 28.11.2019 and 30.11.2019 respectively stands set aside. The convict-appellant shall be released forthwith, if not wanted in connection with any other case.

[24] With the above observations and directions, the instant appeal stands allowed and disposed of. As a sequel, miscellaneous applications pending, if any, shall stand closed. Send down the LCRs.

          JUDGE                                                          JUDGE




A.Ghosh