Tripura High Court
Mintur Rahaman @ Mithu vs The State Of Tripura on 17 January, 2024
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
HIGH COURT OF TRIPURA
AGARTALA
CRL.A.(J)12 of 2023
Mintur Rahaman @ Mithu,
son of Muslem Miah,
resident of Chataria,
Udaipur, P.O. R.K. Pur,
District : Gomati, Tripura
---- Appellant(s)
Versus
The State of Tripura
---- Respondent(s)
For Appellant(s) : Mr. P.K. Biswas, Sr. Adv.
Mr. R.R. Nath, Adv.
Mr. Pujan Biswas, Adv.
For Respondent(s) : Mr. S. Debnath, Addl. P.P.
Date of Hearing : 10.01.2024
Date of Judgment
& Order : 17.01.2024
Whether fit for
reporting : YES
HON'BLE MR. JUSTICE T. AMARNATH GOUD
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
(Biswajit Palit, J)
Heard Mr. P.K. Biswas, Learned Senior counsel assisted by
Mr. R.R. Nath, Learned Counsel and Mr. Pujan Biswas, Learned
Counsel appearing for the appellant as well as Mr. S. Debnath, Learned
Additional P.P. appearing for the State.
2. This is an appeal against the judgment dated 16.01.2023
passed by Additional Sessions Judge, Gomati District, Udaipur in
connection with case No.S.T.35 of 2017 (Type-I). By the said
judgment, the Learned Trial Court sentenced the convict to suffer RI
for life with fine of Rs.10,000/- under Section 302 of IPC, id to suffer
RI for six months.
3. The gist of the appeal filed by the appellant in short is that
the prosecution against him was set into motion on the basis of an
FIR/ejahar laid by one Smt. Smti. Sharika Begam, wife of Shri
Jahangir Hussein of Hirapur under P.S. R.K. Pur, District : Gomati,
Tripura on 28.10.2016 alleging inter alia that about six years back, the
marriage of her daughter namely Sarifa Begam @ Bulti was hold with
the appellant Mitnur Rahaman @ Mithun, son of Shri Muslem Miah of
Village-Chataria, Sub-Division-Udaipur, P.S. R.K. Pur, District :
Gomati, Tripura as per Muslim Rites and Customs. In the marriage, the
informant has paid cash money amounting to Rs.80,000/- and other
household articles to the appellant accused and after two years of
marriage, the present appellant accused and his relatives started
torturing upon the daughter of the informant both physically and
mentally and out of their wedlock, a male issue was begotten to them
and the deceased victim continued to reside at her matrimonial home
digesting torture upon her. On 28.10.2016, at around 7.00 a.m. in the
morning, the informant received one telephonic information about the
illness of her daughter and accordingly, they were asked to attend
District Hospital, Udaipur and on arrival therein, they found her
daughter dead.
4. On receipt of the ejahar, O/C, R.K. Pur Women P.S.
registered R.K. Pur P.S. case No.2016WRP065 under Sections 498/302
of IPC and the case was endorsed to WSI of police namely Mina
Debbarma for investigation.
The I.O. after completion of investigation laid charge sheet
under Section 498A/302 of IPC against the appellant Mitnur Rahaman
@ Mithun to the jurisdictional Court.
Learned CJM, Gomati District, Udaipur on receipt of charge
sheet took cognizance of offence and the case was committed to the
Court of Learned Sessions Judge, Gomati District, Udaipur and
thereafter, the case was transferred to the Court of Learned Additional
Sessions Judge, Gomati District, Udaipur for disposal according to law.
The Learned trial Court framed charge against the appellant under
Section 498A/302 of IPC. To substantiate the charge, prosecution
before the Learned Trial Court has adduced in total nineteen number of
witnesses and the prosecution also relied upon some documentary
evidences which were marked as Exhibits in the case. After completion
of trial, the Learned Court below convicted the appellant under Section
302 of IPC and accordingly, sentenced him under Section 302 of IPC
as stated above. Challenging that conviction and sentence, the present
appellant has preferred this appeal before the Court.
5. In course of hearing, Mr. P.K. Biswas, Learned Senior
Counsel assisted by Mr. P. Majumder, Learned Counsel appearing for
the appellant submitted before this Court that the prosecution both by
oral and documentary evidence on record has failed to prove the
charge against the present appellant. But the Learned Court below
misinterpreting the evidence on record convicted him which needs to
be interfered by this Court.
6. Learned Senior Counsel referring the evidence on record of
the prosecution in course of hearing submitted before the Court that
the Learned Court below framed charge against the appellant under
Section 498A/302 of IPC but the prosecution before the Learned Trial
Court could not adduce any independent witness to substantiate the
charge levelled against the appellant under Section 498A of IPC. Even,
the prosecution to sustain the charge against the appellant under
Section 302 of IPC relied upon the disclosure statement of the
appellant in police custody but submitted that the same was not
properly appreciated by the Learned Trial Court because from the
evidence of the I.O., it is very clear that she, in course of her
examination before the Court below totally remained silent regarding
recording of disclosure statement. Even, the Medical Officer whose
evidence was relied upon by the prosecution in course of his
examination fairly submitted that the disclosure statement was
recorded by I.O. but the I.O. in course of her examination did not
whisper anything regarding recording of disclosure statement by her.
There was no explanation from the side of the prosecution in this
regard.
7. Furthermore, from the evidence on record, it transpires that
all the witnesses very categorically stated before the Learned Trial
Court that the accident occurred due to electrocution, even, the
Medical Officer also deposed in the same tune but the Learned Court
below without considering the evidence on record just on the basis of
mere surmise that the present appellant committed homicide of his
wife found him guilty and convicted him without application of proper
mind. He also added that the disclosure statement was also not
properly proved by the prosecution in the case. More so, there is also
no evidence on record that prior to death, the accused has/had any
inimical or strained relation with his wife and since the prosecution
came up with the story of causing murder by the appellant to his wife
for non-fulfillment of demand of dowry but the prosecution has
miserably failed to bring home the charge under Section 498A of IPC
against the appellant, so there is/was no scope to sustain the charge
against the present appellant under Section 302 of IPC. Further,
according to Learned Senior Counsel, for every offence there must be
some motive but here in the case at hand, the prosecution could not
establish any motive, nor established any chain of circumstances
causing murder by the appellant to his wife. So, according to Learned
Senior Counsel, the present appellant is entitled to acquittal for failure
on the part of the prosecution to substantiate the charge against the
present appellant of this case and relied upon few citations which
would be discussed later on.
8. On the other hand, Mr. S. Debnath, Learned Additional P.P.
representing the prosecution has very fairly submitted that the
Learned Court below has rightly after appreciating the evidence on
record found the appellant guilty and sentenced him accordingly. So,
according to Learned Additional P.P., there is no scope to interfere with
the judgment of the Learned Trial Court and urged before this Court to
uphold the judgment of the Learned Trial Court.
9. Learned Additional P.P. also submitted that the accused-
appellant in course of his examination under Section 313 of Cr.P.C.
totally remained silent regarding the incriminating materials/evidence
revealed against him during trial before the Learned Trial Court which
shows his implication/involvement with the alleged offence.
Furthermore, Learned Additional P.P. also drawn the attention of the
Court referring Section 106 of the Evidence Act and submitted that it
was the duty of the accused to establish his innocence of the charge
framed against him in view of the aforesaid provision of law. He has
also submitted that since the prosecution has been able to prove the
disclosure statement of the appellant under Section 27 of the Evidence
Act, so Learned Additional P.P. prayed for upholding the conviction
delivered by the Learned Trial Court against the appellant of this case.
10. We have heard argument at length of both the sides and
also gone through the evidence on record. Now, before appreciate the
submissions made by Learned Counsel of both sides let us examine the
material evidence on record of the prosecution recorded during trial of
the case before the Learned Trial Court.
11. PW-1, Shri Santanu Dutta deposed that on 28.10.2016 to
02.11.2016 he was posted as DCM, office of SDM, Udaipur. That on
requisition of SDM, Udaipur for recording disclosure Statement of one
Mitnur Rahman, he went to R.K. Pur Women P.S. where the O.C. of the
P.S., accused Mitnur Rahman were present. That time, the accused
appellant, Mitnur Rahaman @ Mithun confessed his guilt before him
and stated that on 28.10.2016, he was in his house along with his wife
Sarika. Suddenly the accused heard that his wife talking over mobile
phone and getting enraged, he caused his wife to be burnt by electric
heater (oven). According to the witness, the accused appellant also
confessed that he could show the place where he caused his wife to be
burnt and accordingly, he led them to his house where the appellant
showed the place where his wife caught fire by heater by his act and
the accused appellant also showed them the broken pieces of heater.
He further stated that the disclosure statement was recorded by WSI
Mina Debbarma in his presence and the same was read over to him, as
well as to the accused where he put his signature on the disclosure
statement. He identified the disclosure statement wherein he put his
signature and the signature of witness on his identification was marked
as Exhibit-1. He also deposed that on that day, he conducted inquest
over the dead body of deceased Sarika (Bulti) and the dead body was
identified by the relative of the deceased namely Samsul Alam and one
constable of police namely Priyanka Chakma. He identified the inquest
report and his signature marked Exhibit-2 and Exhibits-2/1 to 2/5.
During cross examination, he deposed that as per column
No.14 of the inquest report and after examination of the dead body
prima facie nothing revealed as to the cause of death. He did not find
any mark of violence over the dead body except the burn injury and on
02.11.2016, appellant Mitnur Rahaman @ Mithun was already in the
P.S. before he reached there and also deposed when the appellant laid
them to his house for discovery, police personnel was also present
with them.
12. PW-2, Shri Bimal Debnath deposed that on 02.11.2016, as a
Constable of Police at Dhajanagar Police Reserve he came to R.K.
Woman P.S. where the appellant Mitnur Rahaman @ Mithun made a
disclosure statement to the I.O. in presence of the I.O. and O.C.,
Executive Magistrate and he made Videography of the entire incident
through his mobile and after that, he transferred the file from his
mobile to the computer installed in the Office of S.P. He again
deposed that on 28.10.2016, he made Videography of the postmortem
of deceased Sarika Begam through his mobile and transferred the file
to the computer installed in the Office of S.P.
During cross examination, he deposed that he had no idea
regarding experience in respect of Information Technology. He could
not say the number of mobile phone as well as the SIM number of his
mobile. There was Memory Card inserted in his mobile but the I.O. did
not seize any mobile phone, SIM Card and Memory Card. He has also
deposed that he has got no certificate of experience regarding
computer operation.
13. PW-3, Shri Suman Kumar Chakraborty, Dy. Director-
cum-ACE in SFSL deposed that on 09.12.2016 their office received one
sealed packet from SDPO, Udaipur containing Exhibits. The exhibits
were received in a sealed parcel and inside that sealed packet there
were five exhibits, four plastic containers and another paper packet
marked as Exhibits-A to E. Packets bearing PM No.exhibits, description
etc. He also stated the Exhibits marked A to D are said to be collected
from the body of deceased Sarika Begam @ Bulti by Medical Officer.
The exhibits were examined from 05.04.2017 to 17.04.2017 by colour
test and chromatographic method. The exhibits marked as A, B and E
on examination were negative for presence of common organochloro,
organophosphorous and carbamates group of pesticides and ethyl
alcohol and arsenic. He identified the report marked as Exhibit-3 and
the signatures marked as Exhibits-3/1 and 3/2 and identified the
forwarding report of Dr. H.K. Pratihari marked as Exhibit-4/1.
14. PW-4, Sahanaz Begam is the informant of this case. She
deposed that she laid the ejahar against her son-in-law, Mitnur
Rahaman, Jhutan Miah, the brother-in-law of her daughter, mother-in-
law and sister-in-law of her daughter. The marriage of her daughter
was solemnized with accused appellant in the month of February, 2010
as per Sariat and thereafter, she started living peacefully at her
matrimonial home at Chataria for about two years and after that, the
father-in-law, mother-in-law and husband, brother-in-law of her
daughter started torturing her daughter on the demand of money and
accordingly, her daughter came to her and told her to give her
Rs.20,000/- as per demand of her husband in-laws and accordingly,
she gave her Rs.20,000/- to meet up the demand and again after a
month her daughter again came for giving further Rs.20,000/- as per
demand of her husband and in-laws and then she gave Rs.20,000/- to
meet up the demand. The witness further stated that despite of
making payment torture upon her daughter remained as usual and
the accused appellant used to stay with her daughter at Manughat
since after 2/3 years of marriage. After that, when her daughter came
from Manughat, she again approached her for Rs.1,00,000/- as per
demand of her husband but she expressed her inability to pay the
same and returned back to her matrimonial home where she had to
bear all the torture of her husband. On 28.10.2016, she received an
information from one of her relative namely Kabir Miah that her
daughter was hospitalized in Tepania Hospital and immediately
thereafter, she along with her husband and other family members
rushed to the hospital and found her daughter dead. In the hospital,
she found injuries in face and chest portion of her daughter and it
appeared to her that the injuries were caused to her daughter because
of pressure created by electric heater. She further deposed that her
husband used to suspect her daughter for having illicit relation with
the brother of the appellant and she identified the signature on the
ejahar marked as Exhibit-5 and her signature marked as Exhibit-5/1.
During her cross examination, she deposed that the ejahar
was written at her house and she disclosed everything from her
knowledge to the scribe Saraswati Das. She was confronted with her
statement that in her ejahar she mentioned that she paid Rs.40,000/-
in two installments to her daughter to meet the demand of her son-in-
law. But that portion of evidence was not found in her statement
recorded by I.O. under Section 161 of Cr.P.C. She was further
confronted with the statement that in the ejahar, she expressed her
inability to pay Rs.1,00,000/- to her daughter to met the demand of
accused Mithnur Rahaman. But that portion of evidence was also not
found in the statement recorded by I.O. This witness further
confronted with the statement that she stated to the I.O. the name of
person before whom she paid Rs.40,000/- in two installments to her
daughter but the same was also not found in the statement of witness
recorded by I.O. She also stated that earlier she did not file any case
before the appellant for demanding money from his daughter or in
respect of assault committed on her daughter. She did not inform
anything to the Pradhan of the village about the demand of money and
the assault committed upon her daughter. Her daughter went to
Manughat with accused Mithnur Rahaman after birth of their son who
was seven months at that time. She heard that her husband and
daughter stayed outside but she could not say the name of the exact
place.
15. PW-5, Salaha Begam deposed that the deceased was her
sister. The marriage of her sister was solemnized in the year 2010 as
per Sariat and after few months of marriage, the accused used to live
elsewhere for his job and that time, her sister (deceased) had to reside
her matrimonial home at Chataria. After 2/3 years of marriage, oneday
her sister came to her mother and told her to pay Rs.20,000/- as per
demand of accused. Accordingly her mother gave the amount and
thereafter, again, her mother paid Rs.20,000/- to meet up the demand
of appellant. She further stated that her deceased sister disclosed to
her that brother of the appellant tried to enter her room at night in
absence of the appellant and on that issue, the appellant used to
suspect her and caused physical torture upon her. One day, in the
morning, she heard that her sister was hospitalized in Tepania Hospital
and immediately thereafter, she rushed to hospital to see his sister but
there he could know that his sister was dead.
During cross examination, she deposed that immediately
after marriage of her sister she was taken by the accused appellant
outside the State of Tripura and thereafter again, she was brought
back to her matrimonial home as he was transferred. He was
confronted with the statement that her sister was tortured by accused
appellant Mithnur Rahaman as he suspected that the ill relation of her
sister with brother of appellant. But that portion of statement was not
found in the statement of witness. He was again confronted with the
statement that he stated to I.O. that the brother of the appellant tried
to enter into the room of his sister at night in absence of her husband
but that portion was also not found in the statement of witness
recorded by I.O.
16. PW-6, Shri Kanu Das is a member of Chataria Panchayat.
He deposed that on 28.10.2016, he came to his house about 8 to 8.30
a.m. That time, he got the information that someone in the house of
Mithnur Rahaman got electrocuted and after that, he went to the
house of Mithnur Rahaman where the parents of Mithnur Rahaman, i.e.
the appellant told him that the wife of Mithnur Rahaman got
electrocuted from electric heater while she was boiling milk.
During cross examination, he deposed that prior to
28.10.2016, nobody in his village complained anything about the
present appellant. He also deposed that he never heard any sort of
family dispute in the family of Mithnur Rahaman and he heard from the
parents of Mithnur Rahaman that Mithnur got electric shock while
saving his wife and on the day of incident, he also did not hear any
family dispute before proceeding to the market.
17. PW-7, Smti. Priyanka Chakma is the police constable posted
at R.K. Pur Women P.S. identified her signature on the seizure list in
respect of viscera, stomach, kidney, liver prepared by the I.O. and he
identified her signature marked Exbt.6.
18. PW-8, Smti. Sukla Debbarma also deposed in the same
manner and stated that on 28.10.2016, after postmortem, Dr. Nani
Gopal Das handed over the viscera and other things of the deceased
by preparing one seizure list in his presence and identified his
signature marked Exbt.6/1.
19. PW-9, Smti. Saraswati Das is a paralegal volunteer. She
deposed that on 02.11.2016, she along with one Goutam Dey were
attached to R.K. Pur Women P.S. as PLV. That day, the appellant
Mithnur Rahaman in presence of Executive Magistrate, Woman S.I.
Mina Debbarma and PLV Goutam Dey disclosed the incident how he
committed assault upon his wife Smti. Sarika Begam and thereafter,
he disclosed that he could show the place where he subjected his wife
to assault and accordingly, they went to the house of Mithnur
Rahaman as pointed by him and in the house of the appellant Mithnur
Rahaman he showed broken pieces of local made oven (made of clay)
which were seized by WSI, Mina Debbarma by preparing seizure list.
The witness identified his signature on the seizure list marked as
Exbt.1/1. He wrote the ejahar as per narration of the informant and
identified the same marked as Exbt.5/2 and her signature marked as
Exbt.5/3.
During cross examination, she stated that the informant did
not state to her that she paid Rs.40,000/- in two installments to her
daughter as per narration of accused appellant. She also stated that
the informant did not disclose her that she expressed her inability to
pay Rs.1,00,000/- to her daughter as per demand of the accused. She
further deposed that at the time of disclosure other police personnels
were present.
20. PW-10, Shri Goutam Dey also deposed in the same manner
like PW-9 and identified his signature on the disclosure statement
marked as Exbt.1/2.
During cross examination, he could not say anything about
the contents of disclosure statement.
21. PW-11, Dr. Nanigopal Das deposed that on 28.10.2016, he
along with Dr. Chandan Kumar Tripura and Dr. Moumita Roy
committed postmortem examination over the dead body of deceased
of Sarika Begam @ Bulti and on examination, they found the following
external injuries :
"1) Multiple abraded contusion over the left side of
the chest, over the dorsum of right hand, over the
medical aspect of right ankle.
2) One bruise over the left side of the neck just
below the clavicle and over the front of right
shoulder, 3 cm below the clavicle.
3) Electric burn injuries over the front of the neck
and face involving mouth and nose and over the
dorsum of left hand involving digits with signs of
vital reactions.
Rigor mortis well developed all over the
body."
According to him, the cause of death was "Ventricular
Fabrillation" as a consequence of electrocution and his opinion remains
unchanged after receipt of forensic report. He also identified the
postmortem report marked Exbt.6 and his signature marked Exbt.6/1.
He identified the signature of Dr. Chandan Kumar Tripura and Dr.
Moumita Roy marked Exbt.6/2 and 6/3.
22. PW-12, WC Shilu Chanda is the seizure list witness. In her
presence, on 02.11.2016, the IO seized the some broken pieces of
heater from the house of the appellant accused and she identified her
signature marked Exbt.7.
23. PW-13, Dr. Moumita Roy deposed that on 28.10.2016, she
was posted as Medical Officer in Gomati District Hospital, Tepania and
on that day, postmortem over the dead body of one Sarika Begam was
conducted by Dr. Nanigopal Das, Dr. Chandan Kumar Tripura and the
witness herself. After the preparation of the report, they put their
signatures. The witness again identified the postmortem report marked
Exbt.6 and her signature marked Exbt.6/3.
During cross examination, she stated that the death of
Sarika Begam might have caused due to electrocution.
24. PW-14, Shri Utpal Majumder deposed that one day Kanu
Das of his locality came and informed him that Sarika Begam got
electrocuted and on reaching the house of Sarika Begam, he found
that the dead body of Sarika was already taken to hospital.
During cross examination, he deposed that Sarika got
electrocuted in the kitchen room. He also deposed that he did not say
to IO that "Mitnur also got electric shock when he tried to save his
wife." Attention of the witness is drawn to his previous statement
recorded under Section 161 of Cr.P.C. but the same was found
recorded and marked as Exbt.A subject to prove by IO, as the witness
denied to have made such statement.
25. PW-15, Md. Aktar Hossain only deposed that he could know
that Sarika Begam got electrocuted in the kitchen room and so she
was taken to Hospital.
26. PW-16, Md. Mustak Hossain Chowdhury deposed that on
28.02.2010, the appellant, Mithnur Rahaman married his cousin Sarika
Begam as per Mahammaden Law. In the marriage, Rs.80,000/- in
cash, furniture and golden ornaments worth Rs.2,00,000/- were given
to Mithnur Rahaman, i.e. the appellant by his uncle. 2/3 years after
the marriage, the appellant demanded Rs.1,00,000/- more. Sarika's
father gave Rs.40,000/- to the appellant accused in two installments of
Rs.20,000/- each. As the rest amount could not be meet up, so, Sarika
was subjected to physical and mental torture by her husband and
finally she was sent to her father's house. When Sarika came to her
father's house, she disclosed that her husband had started mental and
physical torture on account of dowry demands. She also disclosed that
her husband suspected her for having her illicit relation with his
younger brother and the same led to frequent fights between them.
After that, his cousin again went back to her husband's house. In the
morning of 28.10.2016 at around 8.00 to 8.30 a.m. he got one
information that his cousin had been admitted in Gomati District
Hospital. Accordingly, he along with others went to hospital and after
reaching there, they saw Sarika was lying dead in Emergency Ward of
the hospital and they noticed burnt injuries all over Sarika's face. He
further told that the neighbours of the accused who were present in
the hospital told them that Sarika died to electric shock. He identified
his signature in the Surathall report dated 28.10.2016 marked
Exbt.8/1.
During cross examination, he stated that he did not say to
I.O. to whom Rs.40,000/- in two installments was paid and he also
have not specifically stated in his 161 statement that the accused
appellant assaulted his cousin after his demand of Rs.1,00,000/- was
not met completely. Further, he stated that in course of his
examination, he did not say to IO that the accused assaulted his
cousin after his demand of Rs.1,00,000/- They did not make any
complain before the police regarding the dowry harassment.
27. PW-17, Smti. Sunanda Chakraborty is a woman Constable
of Police at R.K. Pur Women P.S. She deposed that on 02.11.2016, she
along with WSI Smt. Mina Debbarma went to the residence of the
appellant where Smt. Mina Debbarma seized eight pieces of electric
heater plate by preparing seizure list in her presence and she put her
signature on the seizure list and identified his signature marked
Exbt.7/1 and the seized pieces of electric heater plate marked M.O.1.
28. PW-18, Khalek Miah Sarkar deposed that deceased was the
daughter of his maternal uncle. On 28.10.2016, he was in a shop at
Maharani Bazar. When he heard from some shop keepers that his
cousin Sarika was admitted in hospital, he went to hospital and saw
that Sarika died and people present in the hospital told that Sarika's
husband Mithnur Rahaman had killed her.
During cross examination, he stated that he did not say to
IO that he heard from the people present in the hospital that Mithnur
Rahaman killed his wife.
29. PW-19, Smt. Mina Debbarma is the IO. She deposed that on
28.10.2016, she was posted at R.K. Pur Women P.S. and on that day,
O/c of that P.S. asked her to enquire about the death of one Bulti
Begam at Tepania District Hospital. Accordingly, she proceeded
towards District Hospital and after reaching there, she found the dead
body at emergency Ward which was identified by one relative namely
Md. Mustak Hossain Choudhury. Then she prepared surathal report in
presence of the witness and identified her signature marked Exbt.P-8.
Then she submitted prayer for inquest before the SDM, Udaipur,
prepared challan for postmortem examination of the dead body of the
victim, identified the challan marked Exbt.P-9. After that, one ejahar
was laid by the informant, Sahanaj Begam to O/c R.K.Pur Women P.S.
and accordingly, R.K.Pur P.S. Case No.2016/WRP/065 was registered
under Section 498A/302 of IPC and she took up the investigation of
this case being endorsed to her. After completion of investigation, she
laid charge sheet against the present accused of this case. During
examination-in-chief she also stated that she had given a certificate as
per 65(b) of the Evidence Act after conversion into the CD of the
disclosure statement of accused and identified the certificate marked
Exbt.P-13 and identified the CD marked Exbt.MO-2.
During cross examination, she deposed that on 28.10.2016,
the case docket was handed over to her around 2045 hours. No UD
case was registered in connection with the death of deceased Sarika
Begam alias Bulti. After the revelation in surathaal report it was
suspected by Md. Mustak Hussein Choudhury that deceased, Sarika
Begam alias Bulti was killed by her husband and accordingly, she
conducted her investigation. She visited place of occurrence on
29.10.2016 and arrested the accused on that day. She further deposed
that before arresting the accused, he was admitting in the hospital.
She did not collect the discharge certificate of accused Mithnur
Rahaman and she also did not ascertain why accused was admitted
therein. She also stated that she recorded the statement of Utpal
Majumder as per his version on good faith who stated to her that
Mitnur also got electric shock when he tried to save his wife and
confirmed Exbt.A.
30. These are the synopsis of the evidence on record of the
prosecution. Here in the case at hand, initially charge was framed
against the appellant under Section 498A/302 of IPC but at the end of
the trial, the Learned Trial Court below acquitted the appellant from
the charge under Section 498A of IPC but convicted him under Section
302 of IPC. From the evidence on record, it is clear that some of the
witnesses specifically the near relatives of the deceased in course of
their examination tried to satisfy the Court that the victim was
subjected to cruelty for unlawful demand of money. But from the
evidence on record, it appears that none of the witnesses could
specifically say anything as to when and how the present appellant
caused cruelty upon the deceased victim for unlawful demand of
money. The informant and other relatives stated that Rs.40,000/- in
two installments were paid to the accused appellant but when the
amount was paid, nobody could whisper anything. There was no
explanation from the side of the prosecution in this regard. Even, from
the evidence it appears that some of the witnesses after coming before
the Court deposed that the appellant demanded money from the
deceased victim which were the improved version and there is also no
evidence on record that the present appellant demanded money
directly to the informant or her husband or any other near relatives.
The witnesses who appeared on behalf of the prosecution stated that
the deceased victim demanded money from the informant as
demanded by the accused appellant, but in this regard, the
prosecution could not adduce any conclusive evidence on record before
the Learned Trial Court. More so, most of the witnesses are/were
hearsay. So, in our considered view, the Lower Court below has
rightly acquitted the present convict from the charge framed under
Section 498A of IPC.
31. As already stated, the present appellant was convicted
under Section 302 of IPC by the Learned Trial Court, but here in the
case at hand, after going through the evidence on record, it appears
that all the witnesses of the prosecution stated that the deceased
expired due to electrocution/electric shock. There is/was no any direct
eye witness of the prosecution that the present appellant caused the
death of his wife by electrical heater. Now, to find out the truth, let us
see the evidence on record of the Medical Officer who conducted the
postmortem over the dead body of the deceased victim. As already
stated, PW-11, Dr. Nanigopal Das conducted the postmortem
examination along with Dr. Chandan Kumar Tripura and Dr. Moumita
Roy on 28.10.2016 over the dead body of the deceased. After
conducting postmortem examination, he has very specifically stated
that the cause of death was "Ventricular Fabrillation" as a consequence
of electrocution. Similarly, PW-3, Shri Suman Kumar Chakraborty who
is the Dy. Director-cum-ACE in SFSL in course of his examination
deposed that the Exhibits marked as Exbts. A, B and E on examination
were found negative for presence of common organophosphorous and
carbamates group of pesticides and ethyl alcohol and arsenic. Based
on that, the Medical Officer, Dr. Nanigopal Das in course of his
examination specifically stated that the opinion in respect of cause of
death remain unchanged, even after receipt of forensic report. There is
also no other evidence on record that the appellant had strained
relation with the deceased prior to her death. The Learned Court below
on conclusion of the trial relied upon the disclosure statement of the
present appellant and convicted him in this case. PW-1, PW-9 and PW-
10 identified the disclosure statement in presence of whom the present
appellant made disclosure statement and they identified their
signatures on the said disclosure statement. PW-1 stated that the
disclosure statement of the accused appellant was recorded by WSI,
Mina Debbarma. But surprisingly, the IO i.e. PW-19 when came to the
Court to depose as witness, she did not say anything that the
disclosure statement of the accused appellant was recorded by her.
32. In course of hearing, Mr. P.K. Biswas, Learned Senior
counsel appearing for the appellant has relied upon few citations. In
Ramnand alias Nandlal Bharti versus State of Uttar Pradesh
reported in AIR 2022 SC 5273 the Hon'ble Supreme Court observed
as under :
53. If, it is say of the investigating officer that the
accused appellant while in custody on his own free
will and volition made a statement that he would
lead to the place where he had hidden the weapon
of offence along with his blood stained clothes
then the first thing that the investigating officer
should have done was to call for two independent
witnesses at the police station itself. Once the two
independent witnesses arrive at the police station
thereafter in their presence the accused should be
asked to make an appropriate statement as he may
desire in regard to pointing out the place where he
is said to have hidden the weapon of offence.
When the accused while in custody makes such
statement before the two independent witnesses
(panch witnesses) the exact statement or rather
the exact words uttered by the accused should be
incorporated in the first part of the panchnama
that the investigating officer may draw in
accordance with law. This first part of the
panchnama for the purpose of Section 27 of the
Evidence Act is always drawn at the police station
in the presence of the independent witnesses so as
to lend credence that a particular statement was
made by the accused expressing his willingness on
his own free will and volition to point out the place
where the weapon of offence or any other article
used in the commission of the offence had been
hidden. Once the first part of the panchnama is
completed thereafter the police party along with
the accused and the two independent witnesses
(panch witnesses) would proceed to the particular
place as may be led by the accused. If from that
particular place anything like the weapon of
offence or blood stained clothes or any other
article is discovered then that part of the entire
process would form the second part of the
panchnama. This is how the law expects the
investigating officer to draw the discovery
panchnama as contemplated under Section 27 of
the Evidence Act. If we read the entire oral
evidence of the investigating officer then it is clear
that the same is deficient in all the aforesaid
relevant aspects of the matter."
Referring the aforesaid citation, Learned Senior Counsel has
submitted although according to the prosecution the disclosure
statement was recorded in view of the provision provided under
Section 27 of the Evidence Act but in view of the principles laid down
by the Hon'ble Supreme Court in the afore noted case, the Learned
Court below could not consider that the IO of this case failed to record
the disclosure statement of the accused in accordance with law for
which no reliance can be placed upon that. There is also no evidence
on record that the IO at the time of recording disclosure statement has
followed the exact provisions of law and thereafter proceeded to record
the disclosure statement of the accused appellant in this case. So,
legally there is no scope to place any reliance upon the disclosure
statement of the accused appellant as alleged to be recorded by the IO
of this case. It appears that there is deficiency in compliance of the
requirement as required by law under Section 27 of the Evidence Act.
33. Learned Senior Counsel further submitted that the witness
of the prosecution in course of their examination deposed before the
Court that the deceased expired due to electrocution. The prosecution
did not take any step for declaring those witnesses as hostile. In this
regard, Learned Senior Counsel has also relied on a citation of the
Hon'ble Supreme Court in Javed Masood and Another versus State
of Rajasthan reported in 2010 AIR SCW 1656 which reads as
under:
"13. In the present case the prosecution never
declared PWs 6, 18, 29 and 30 "hostile". Their
evidence did not support the prosecution. Instead,
it supported the defence. There is nothing in law
that precludes the defence to rely on their
evidence. This court in Mukhtiar Ahmed Ansari vs.
State (NCT of Delhi) : (2005) 5 SCC 258 observed:
"30. A similar question came up for
consideration before this Court in Raja
Ram v. State of Rajasthan, (2005) 5 SCC
272. In that case, the evidence of the
Doctor who was examined as a
prosecution witness showed that the
deceased was being told by one K that
she should implicate the accused or else
she might have to face prosecution. The
Doctor was not declared "hostile". The
High Court, however, convicted the
accused. This Court held that it was open
to the defence to rely on the evidence of
the Doctor and it was binding on the
prosecution.
14. The proposition of law stated in the said
judgment is equally applicable to the facts in
hand."
Referring the aforesaid citation, Learned Senior Counsel
further submitted that since the material witnesses of the prosecution
were not declared hostile by the prosecution who very specifically
stated that the deceased expired due to electrocution. So, there is no
scope to place any reliance on the prosecution story that the present
appellant caused the murder of his wife by electric heater on the
alleged date and time just relying on the alleged disclosure statement
of the appellant.
34. Learned Senior Counsel also in course of hearing referred
the provision of Sections 25 and 26 of the Evidence Act and submitted
that if for argument sake the alleged statement of the accused
appellant is treated as confessional statement under Section 25 and 26
of the Evidence Act, in that case the same also cannot be taken into
consideration as per law. In this regard, Learned Senior Counsel has
relied upon another citation of Hon'ble Gauhati High Court in Kartik
Chakraborty and Others versus State of Assam reported in
(2018) 2 GLR 1 which reads as under :
"33. This has also been the view of the Madras
High Court and it finds its expression in several
decisions. In Palanisamy alias Kunjupaiyan Vs.
State, Criminal Appeal No.541/2005, decided on
22.03.2013, Madras High Court has held that
the Evidence Act was enacted before the
commencement of the Code of Criminal Procedure,
1973. In view of Section 3(3) of the Code of
Criminal Procedure, 1973, the term "Magistrate"
referred to in Section 26 of the Evidence Act does
not refer to Executive Magistrate. Consequently,
the expression "Magistrate" as appearing
in Section 26 of the Evidence Act would mean only
a Judicial Magistrate. Therefore, confession
recorded or videographed by police in the presence
of Executive Magistrate would be hit by Sections
25 and 26 of the Evidence Act. Again, in the case of
Kalam @ Abdul Kalam Vs. Inspector of Police,
reported in MANU/TN/07588/2011, the Madras
High Court examined the provisions of Section
26 of the Evidence Act vis-à-vis Section 3(3) of the
Code of Criminal Procedure, 1973 and after
observing that the Evidence Act was enacted
before the commencement of the Code of Criminal
Procedure, 1973, held that the term "Magistrate"
as referred to in Section 26 of the Evidence Act will
mean only a Judicial Magistrate."
Referring the above, Learned Senior Counsel submitted that
the statement was recorded in presence of Executive Magistrate, not
before any Judicial Magistrate as interpreted by the Hon'ble Gauhati
High Court. So, there was also no scope to place any reliance upon the
evidence of PW-1, Shri Santanu Dutta DCM in whose presence the
disclosure statement was recorded by IO on the alleged date and time.
35. During the course of argument, Learned Senior Counsel has
referred another judgment of the Hon'ble Supreme Court in Zwinglee
Ariel versus State of Madhya Pradesh reported in (1952) 2 SCC
560 which reads as under :
13. Finally, the High Court relied on the statements
alleged to have been made by the appellant when
he was halted after leaving the Bedia Bungalow.
Extracts from the evidence given by Pande, Joshi
and Deo have been set out in para 18 of the High
"Court's judgment. The whole evidence of course
was not quoted. It will be observed that the
witness Pande tried to add a little embellishment
to his statement by referring to the conduct of the
accused, namely, that he started trembling and
showed signs of being frightened, presumably to
make it admissible in evidence as conduct of the
appellant under Section 8, Evidence Act.
The two Magistrates, however, did not refer
to any such conduct. The conduct being thus out of
the way, it is clear that the appellant's statements
in reply are not admissible at all under Section 8,
Evidence Act. If these alleged statements are to be
regarded as confessions then they will be hit by
Section 25, Evidence Act. for they were made to
Pande, the Police Officer, who was there. If they
are sought to be brought in under Section 26 as
confessions made in the immediate presence of the
Magistrates, then also they will not be admissible
in evidence in that they were not recorded by the
Magistrates in the manner prescribed by Section
164, Criminal P. C.
Referring the above, it was further argued that even if the
alleged statement of the appellant is treated as confession, so, the
same is also not admissible in evidence since the same was also not
recorded by the Magistrate in the manner prescribed by Section 164 of
Cr.P.C. Thus, according to Learned Senior Counsel, the prosecution
has miserably failed to prove that Sections 25, 26 and 27 of the
Evidence Act have been complied with in this case and urged for
acquittal.
36. Mr. S. Debnath, Learned Additional P.P. appearing for the
State in course of hearing submitted that this case is based on
circumstantial evidence and here in the case at hand, there is no scope
to disbelieve the evidence on record of the prosecution and the
disclosure statement relied upon by the prosecution and from the
chain of circumstances, it appears that on the alleged date and time,
the present appellant committed murder of his wife by electric heater
and he also drawn the attention of the Court referring Section 106 of
the Evidence Act. In this regard, Learned Additional P.P. has referred
one citation of the Hon'ble Supreme Court in Trimukh Maroti Kirkan
versus State of Maharashtra reported in (2006) 10 SCC 681
which reads as under :
"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). 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 traveling 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."
Referring the same, he submitted that the Learned Court
below rightly and reasonably after elaborate discussion of the evidence
on record came to the right conclusion of guilt of the appellant and
urged before this Court to uphold the judgment and sentence.
37. Here in the case at hand, the evidence on record of the
prosecution is discussed in detail and we have already come to the
conclusion that there is no evidence on record to sustain the charge
against the appellant under Section 498A of IPC as because the
prosecution by adducing evidence on record has failed to satisfy the
Leared Court below that the deceased prior to her death was subjected
to cruelty for unlawful demand of money by the present appellant. So,
Learned Court below has rightly acquitted the present appellant from
the charge under Section 498A of IPC. Now regarding the charge as
leveled under Section 302 of IPC, it appears that all the witnesses very
categorically stated that on the alleged day, the accident occurred due
to electrocution resulting which the accident took place and the victim
succumbed to death. The medical evidence also reveals that the victim
died due to electrocution. Now, the witnesses who deposed that the
deceased died due to electrocution were not tendered for cross
examination by the prosecution. There is also no evidence on record
that the victim has/had strain relation with her deceased husband. No
motive has been proved by the prosecution as to why the appellant
committed the murder of his wife on the alleged day. Further, from the
disclosure statement it also appears that the same also has not been
proved in accordance with Section 27 of the Evidence Act as observed
by the Hon'ble Apex Court in the judgment Ramanand alias Nandlal
Bharti(supra). Prosecution also failed to prove that the alleged
statement of the appellant as a confession as the same was not made
before a Judicial Magistrate as required under law and the citations as
relied upon by the appellant in Zwinglee Ariel (supra) also supports
the case of the appellant in the case at hand.
38. Thus, after analyzing the evidence on record and also after
hearing both the sides and the principles of the aforesaid citations laid
down by the Hon'ble Supreme Court in our considered view the
prosecution has failed to prove the charge beyond reasonable doubt
against the present appellant and accordingly, the present appellant
deserves acquittal in this case which we hereby do. Learned Court
below has failed to consider the above aspects in delivering the
judgment against the present appellant.
39. In the result, the appeal filed by the appellant is hereby
allowed. The judgment dated judgment dated 16.01.2023 passed by
Learned Additional Sessions Judge, Gomati District, Udaipur in
connection with case No.S.T.35 of 2017 (Type-I) is hereby set aside.
The appellant is hereby acquitted from the charge of the case leveled
against him under Section 302 of IPC on benefit of doubt and be set at
liberty. He be released from the custody henceforth, if not wanted in
connection with any other case.
Send down the LCRs.
JUDGE JUDGE
SABYASACHI Digitally signed by SABYASACHI
BHATTACHARJEE
BHATTACHARJEE Date: 2024.01.20 02:50:36 -08'00'
Sabyasachi B
