Abdul Hasib vs State Of Assam

M.A. Ali, J

Heard Ms. R.D. Mozumdar, learned Amicus Curiae for the appellant and Ms. Bhuyan, learned Addl. Public Prosecutor, Assam for the State

respondent.

This appeal is directed against the judgment and order passed by the learned Addl. Sessions Judge, Sankardev Nagar, Hojai in Sessions Case No.

1/2016, whereby, the learned Addl.Sessions Judge convicted the appellant under Section 302 IPC and sentenced him to imprisonment for life and fine

of Rs. 5,000/- with default stipulation.

As per prosecution case, on 04.09.2015, at about 3.30 am, the accused appellant killed his wife by hacking her with a ‘dao’ (knife used for

domestic works). Having received the information of the occurrence, the PW-6, Ajijur Rahman, brother of the victim lodged the FIR, on the basis of

which, police registered a case and commenced investigation. In course of investigation, police recorded the statement of the witnesses, sent the

weapon of offence for forensic examination, prepared the inquest report, conducted the post mortem examination and on completion of investigation,

laid charge-sheet against the appellant u/s 302 IPC. The offence being exclusively triable by the court of Sessions, the learned Magistrate committed

the case to the court of Sessions and eventually the appellant stood trial before the Court of Sessions.

In course of trial, charge u/s 302 IPC was framed against the appellant, to which, he pleaded not guilty. In order to bring home the charge,

prosecution examined nine witnesses. After completion of the prosecution evidence, the accused/appellant was examined u/s 313 CrPC and in his

examination u/s 313 CrPC the appellant took the plea of innocence. However, no defence evidence was adduced. On appreciation of evidence,

learned Sessions Judge, convicted the appellant under Section 302 IPC and awarded sentence as indicated above.

Aggrieved by conviction and sentence, the accused/appellant preferred the instant appeal.

We have considered the submissions made by the learned Amicus Curiae for the appellant as well as the Addl. Public Prosecutor, Assam.

Learned Amicus Curiae, Ms. R.D. Mozumdar strenuously arguing for acquittal of the appellant contended, that there was no direct evidence and

the chain of circumstances was also not complete, so as to enable the court for coming to the irresistible conclusion, that it was none, but the

accused/appellant had committed the offence, and as such, at least the accused/appellant ought to have been given the benefit of doubt.

Apparently there was no direct evidence and the learned trial court primarily relying upon the circumstantial evidence, recorded the conviction of

the appellant.

PW-1 Dr. Hiteshwar Gogoi, who conducted the postmortem examination deposed, that during examination, he found an incised wound over the

right side of the neck involving half of neck, where carotid artery and vain trachea muscles were cut through and through. In the opinion of the doctor,

the death was caused due to shock and hemorrhage, as a result of injury sustained. The evidence of the doctor with regard to homicidal death of the

deceased has not been challenged. Therefore, the only question is who caused the death.

PW-2, a Home Guard, who was on duty at the police station deposed, that at about 4.30 am on 04-09-2015, while he was on duty at the police

station, a person clad in a “lungi†appeared at the police station with a “dao†in his hand. On being asked by him, the said person told that he

had fled after cutting his wife. PW-2 asked the person to sit and informed the O/C. This witness also identified the appellant in court as the person,

who appeared at the police station with a dao in his hand. He further stated that on his information the Officer-in-Charge of the Police Station came

and seized the dao vide seizure list (Ext.-2).

PW-6, the informant deposed that the victim was his sister and she was married to the appellant. He further stated, that one month prior to the

occurrence, the victim came to his house after quarrel with her husband. Thereafter, the accused accompanied with one Matlib and the elderly people

of the villages came to his house to take back the victim and gave assurance that the accused would keep the victim happy and upon such assurance,

in spite of his reluctance, he sent the victim with the appellant. This witness further stated, that the accused threatened to kill the victim, and therefore,

he was reluctant to send the victim with the accused. Thereafter, on the day occurrence, he got an information that the accused appeared at the police

station after killing the victim. Immediately he came and lodged the FIR.

PW-4 deposed, that at about 5/6 am, hearing hue and cry, he came to the courtyard and in the meantime, police also arrived there. He came to

know from the people assembled at the courtyard of the accused, that after killing the victim, the accused surrendered at the police station. He also

stated to have seen the body of the victim lying in the house of the accused. PW-7 also stated that having come to know about the occurrence, he

came to the house of the accused and noticed blood stain on the bed as well as on the pillow of the victim.

PW-8 stated, that on 04-09-2015, at about 4.45 pm, the accused appeared at the police station with a dao and surrendered himself, whereupon the

officer-in-charge of the police station made the GD Entry No. 64 dated 04-09-15 and entrusted him to investigate the case. According to him, the

accused confessed before him that he had hacked his wife. Immediately he arrested the accused and proceeded to the place of occurrence. On

reaching the house of the accused, he found the victim lying dead on the bed. He prepared the inquest report and at about 10 am a formal FIR was

lodged, on the basis of which, the case was registered. He also stated, that he sent the body for post mortem examination and also sent the “daoâ€

for forensic examination. He also proved the GD Entry(Ext.-4), seizure list (Ext. 2), the sketch map (Ext.5) besides other documents.

PW-9 was the Scientific Officer, who deposed that he received a parcel from the S.P. in connection with Doboka P.S. No. 381/15 vide Memo

No.IV/FSL/2015/2863 dated 11/09/2015 through the Director of the Forensic Science Laboratory for examination and gave his opinion. He also

stated, that on opening the parcel he found one iron handle dao containing stain of suspected blood and on his examination, he found that the said dao,

which has been marked as Ext No. Sero- 0357/A, gave positive test of presence of human blood and negative test for human tissue. The accused was

examined u/s 313 CrPC and the incriminating circumstances were put to him. In reply, to the question Nos. 2, 6 and 8 put to the accused in his

examination u/s 313 CrPC, he gave the following replies :-

“Q. 2. PW 2 Home Guard Tamezuddin has stated in evidence that on 4-9-15, while was on duty in Doboka P.S., you entered the P.S. along with a

dao; that then, asking you to have a seat, he informed the O/C about it whereupon the O/C arrived there and seized the dao from you; that you

confessed had gone there after cutting your wife and that he put his signature in the seizure list (Ext. 2). What is your reply ?

Ans. False. I went to the P.S. to deliver the dao to police. The dao belonged to Tazuddin.

Q. 6. P.W. 8, the investigating officer has stated in evidence that around 4.45 am on 4-9-15, you surrendered at Doboka P.S. along with a dao

whereupon the O/C made G.D. Entry No. 64 and entrusted him with the charge of its investigation ; that he seized the dao from you, that you

confessed before him that you had come to the P.S. after killing your wife and that on completion of the investigation, he submitted the charge sheet

against you. What is yout reply ?

Ans : False. The matter was not investigated properly. Takign the dao from Tazuddin, I went to the P.S. to deliver the same to the police. I did not

make any confession that I was involved in a murder. I have been implicated on false grounds.

Q. 8. Do you have anything more to say ?

Ans : I did not kill her. My wife had illicit affair with a man. When that man killed my wife, I snatched the dao from him and went to the P.S. to hand

it over to police.â€​

On our assessment of the evidence and materials brought on record, we find that the accused appeared before the police station at about 4.30 am

with the dao in his hand. It was stated in the FIR that the death of the victim occurred at 3.30 am on 04-09-15 and during his examination u/s 313

CrPC, the appellant also admitted, that he appeared at the police station with the “dao†in his hand. The appellant further stated that during

examination u/s 313 CrPC, that Tazuddin, who had illicit relation with his wife, killed his wife by the “daoâ€​. He snatched away the “daoâ€​ from

Tazuddin and appeared at the police station only to deposit the dao with the police. Though, the statement made by the accused during his examination

u/s 313 CrPC is not evidence stricto-sensu, such statement in view of sub-section (4) of section 313 CrPC can be taken into consideration in the

enquiry or trial and put into evidence and/or against the accused. For any authority one case see State of Maharashtra â€"Vs- B.B. Choudhury, AIR

1968 (SC) 110. Thus, the evidence of PW-1, that the appellant appeared at the police station at about 4.30 am, the averments made in the FIR that the

occurrence took place at 3.30 am and also the statements made by the accused in his examination u/s 313 Cr.P.C. established, that death of the victim

was caused in the wee hours of 04-09-15 and at the time of causing death of the deceased, the accused/appellant being husband of the victim was

present at the place of occurrence. The evidence of PW-8 that on arrival at the place of occurrence, he found the body of the deceased lying on the

bed together with the oral testimony of PW-4 & PW-7 further established that the occurrence took place while the victim was sleeping on the bed.

The third circumstance, which is also found established is that the accused immediately after the occurrence arrived at the police station with a

dao in his hand and the same was seized. Fourthly, the oral testimony of PW-1, PW-8 & PW-9 established, that the dao (weapon of offence) seized

by the police, on being produced by the appellant contained human blood.

The appellant in his examination u/s 313 CrPC sought to provide an explanation, that the death of the victim was caused by one Tazuddin, who had

illicit relation with the victim and therefore, he only went to the police station to produce the dao, which was used by Tazuddin to kill his wife.

Apparently no FIR was lodged by the appellant nor any material could be brought on record to substantiate that the injuries causing death of the victim

was caused by Tazuddin, the alleged paramour of the deceased. When the wife of the appellant was killed allegedly by a third person in presence of

the appellant, his normal reaction would have been to raise hue and cry or report the matter to the close relations or inform the police. There is no

evidence or material on record to show, that the accused/appellant told anyone that one Tazuddin, who had illicit relation with his wife, inflicted the

injury causing death of the victim. There is also no material on record to show that police was bias to the appellant and disposed to so-called assailant

or manipulated the GD Entry(Ext.-4). The GD Entry, Ext.-4 also shows, that the accused surrendered before the police station with a dao in his hand

and stated that he had hacked his wife. Though the confession made by the accused while depositing the dao is not admissible in evidence, the

conduct of the accused in appearing before the police station and producing the dao is admissible u/s 8 of the Evidence Act. Therefore, all the

circumstances, including his conduct of appearing before the police station with the blood stained dao in his hand clearly suggest, that the explanation

sought to be put forward by the appellant was a down right lie. The fact of illicit relationship of the victim with one Tazuddin, as sought to be projected

by the appellant in his examination u/s 313 CrPC, coupled with the evidence of PW-6, that the relationship of victim and accused was strain and in

fact, accused also threatened to kill the victim, suggests the motive behind the offence, which is also an added circumstance to bridge the gap, if any in

the chain of events.

Thus, from established circumstances, in the instant case, that the offence was committed inside the house of the accused, where the accused

alone was present with the victim at the time of commission of the offences. Immediately thereafter, the accused went to the police station with the

dao in his hand stained with human blood, false explanation given by the accused and the motive behind the killing of the victim as indicated above, in

our considered view, completed the chain of events, which led to the irresistible conclusion, that it was none else, but the accused/appellant, who had

committed the offence.

In the facts and circumstances of the case we are unable to accept the submission made by the learned Amicus Curiae that the accused should be

given the benefit of doubt. Because doubt in a criminal case must be a reasonable doubt arising from the evidence or from the lack of it and not an

imaginary shadow of doubt.

The Apex Court, in Devender Pal Singh vs. State of NCT of Delhi reported in (2002) 5 SCC 23,4 observed that justice cannot be made sterile on

the plea that it is better to let hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. Prosecution

is not required to meet any and every hypothesis put forward by the accused. When all the circumstances unerringly lead to the irresistible conclusion,

that it was the accused/appellant, who caused the death of the victim, we find no reason to differ with the conclusion arrived by the learned trial court.

Therefore, we upheld and confirmed the judgment of conviction and sentence awarded by the learned Addl. Sessions Judge and dismiss the appeal.

Before parting, we appreciate the assistance rendered by Ms. R.D. Mozumdar, learned Amicus Curiae and hereby provide that she will be paid

Rs. 7,500/- as her professional fee. Upon production of a copy of this judgment, the Gauhati High Court Legal Services Committee, Guwahati shall

pay the said fee to the learned Amicus Curiae, Ms. R.D. Mozumdar.

Send back the LCR.