Md Nasiruddin Laskar And 2 Ors vs State Of Assam And Anr

M.A. Ali, J

Learned Sr. counsel Mr. HRA Choudhury, assisted by Mr. Azad Ahmed, Advocate for the appellants and learned Addl. P.P., B. Bhuyan for the

State as well as learned Counsel Ms. M. Bora for the informant were heard.

This appeal is directed against the judgment and order dated 16-12-2018 rendered by the learned Addl. Sessions Judge, Tinsukia at Margherita, in

Sessions Case No. 226(M)/2015, whereby the appellants were convicted u/s 376/302 IPC and sentenced to rigorous imprisonment for life and to pay

fine of Rs. 10,000/- with default stipulation on each count.

The prosecution case as unfolded at the trial, may, in brief, be stated thus:- The victim was the sister of the informant (PW-3). On 29-08-2015 she

was coming home from Margherita. She alighted from the bus at Ledo Burma Camp, at about 2.40 PM, wherefrom she was supposed to come on

foot to cross the river Tirap so as to reach home. The victim however, did not reach home and she went missing. Her body was found lying in a jungle

in the evening, on the southern side of the embankment of river Tirap. Immediately police was informed over phone and the local people also

assembled at the place of occurrence, where the body was found. On the following day i.e., 30-08-2015, a formal FIR was lodged by the brother of

the victim, on the basis of which, police registered Margherita PS Case No. 228/2015 u/s 376/302 IPC. During the course of investigation, police

arrested few suspects, recorded the statement of the witnesses, subjected the body to post mortem examination, seized various articles including the

wearing apparels of the victim as well as of the suspects, collected the blood samples of the accused, sent them for forensic examination, collected the

FSL report and upon completion of investigation submitted charge sheet against the appellants u/s 376(g)/302/34 IPC.

During trial learned Addl. Sessions Judge framed charges against the appellants u/s 376/302 IPC, to which, the appellants pleaded not guilty. In

order to substantiate the charges, prosecution examined 18(eighteen) witnesses. Upon completion of the prosecution evidence, the appellants were

examined u/s 313 CrPC wherein, they pleaded innocence. However, the appellants did adduce any defence evidence.

Dr. Nirud kr. Borah, who conducted the post mortem examination has been examined as PW-1. According to PW-1, following injuries were found

on the body of the deceased :-

“(i) In the middle of the forehead, a punctured mark of pin head size was found.

(ii) Contusion on the back of left ear of size 3 cm x 5 cm caused by blunt object.

(iii) A ligature mark encircling around the neck above cricoid cartilage, size 3cm in breadth. Petechial haemorrhages were present on both upper and

lower margins of the ligature mark.

3 nos. of sickle shaped faint nail marks were present on the right side of neck.

3 nos. of nail scrapping marks present above the upper border of ligature mark, in the mid line.

(iv) One ecchimotic area of size 4 cm x 3 cm on lateral border of left bicep muscle present.

(v) One ecchimotic area of size 6 cm x 4 cm is present over the right bicep muscle present. Clotted blood of about 90 ml present plugging the vaginal

canal. After removal of the cloth, a perforated wound of size 2 cm x 1 cm and muscle depth was present on the left lateral wall of the vagina canal.â€​

In the opinion of the doctor “death was due to asphyxia, as a result of occlusion of the air passage (trachea) by a ligature, which was consistent

with strangulation. All the injuries were ante-mortem; except for the vaginal injury, all other injuries were caused by blunt force impact. Vaginal injury

was caused by forceful penetration by multiple objects. Time since death 24 to 35 hours. The injuries were homicidal in nature. Apart from

strangulation, injury no. (ii) is individually sufficient to cause death of a personâ€. During cross-examination, it was elicited that he did not examine the

nails of the deceased.

Dr. Pulak Paul, who attended the accused Nasir Uddin Laskar has been examined as (PW-2). The PW-2 deposed that upon examination of the

accused, Nasir Uddin, he found multiple curvilinear abrasion marks with eschar formation, black in colour on the left side of face and left side of neck

(front aspect). All abrasion marks were about ½ cm in size and the injury was caused by finger nails. Type of injury was simple and age of injury

was stated to be less than 48 hours. During cross-examination PW-2 stated that the nail injury can be sustained by self infliction. The doctor further

stated to a pointed query made by the court, that the injury sustained by accused Nasir Uddin on his face and neck were unlikely to be caused by self

infliction.

PW-3 is the informant Myatkam Tikhak, brother of the victim. He deposed that he knew the accused by face as they were residing at Burma camp

area in connection with their works. He further stated that on the day of occurrence the victim went to attend college at Margherita. She informed her

maternal uncle over phone at about 2.40 PM that she was coming home. When the victim did not return, he (PW-3) went to the other side of the river

at about 4.30 PM in search of the victim. When he reached the house of one Mr. Hussain, where the victim used to wait and take rest, he had noticed

the three appellants washing their hands and legs and also cleaning their pants in a big drain in front of the said house. Having not found the victim, he

tried to contact his uncle Pandicha Bikkhu in order to ask, whether the victim had reached home or not. His uncle told that the victim did not reach

home, but stated that she had alighted from the bus at Barma Camp at 2.41 PM. Having found no trace of the victim, he came back home at 6 PM

and informed the matter to village headman (PW-4), who advised him to go to Barma Camp again for search of the deceased. Thereafter, he

accompanied with other villagers went towards Barma Camp in search of the deceased. On reaching the other side of the river, he noticed the sandal

of the victim on the dyke of the river. He also noticed trail of dragging on the grass and following the dragging trail he found the body of the victim

lying dead with injuries and in half naked condition. The “duppatta†of the victim was found wrapped around her neck. After about an hour, the

Gaonbura, Magistrate, police and other people came to the place of occurrence and the dead body was shifted to Ledo Police Outpost. On the

following day, when PW 3 went to the Ledo Outpost, police had shown five persons including the present appellants, whom he had seen on the

previous day, when they were washing their hands and legs. He also stated to have seen the nail marks on the neck of accused Nasiruddin.

PW-4, Angam Tikhak is the village headman. According to him, on 29-08-2015, in the evening, Roipan Tikhak informed him that sister of PW-3,

who was studying in Margherita College did not return home. He further stated that later on, having come to know about the death of the victim, he

informed Lekhapani Police Station and accompanied the police to the place, where the body of the victim was found. He also stated to have seen the

“duppatta†being wrapped around the neck of the deceased and her upper garments were torn. He also deposed that police seized the bag and

panty of the deceased vide seizure list (Ext.-5) in his presence.

PW-5 is the cousin brother of the deceased. He deposed that when the victim did not come back home, he along with the co-villagers went to the

other side of the river in search of the victim and found the victim lying dead on the dyke. He also stated to have seen the “duppatta†of the

deceased wrapped around her neck. This witness also stated to have seen the appellant washing their limbs in the evening near the thermal quarter.

He further stated that the college bag of the victim which was lying at the place of occurrence was seized by police vide Ext. 6 and he put his

signature in the seizure list as a witness. During cross-examination of this witness, it was elicited, that on the day of incident it was raining and there

was mud all around and his legs were also stained with mud.

PW-6, elder sister of the victim deposed that she received a phone call from the victim at about 2.40 PM that she was returning home and by that

time she had already reached Barma Camp. She also stated that one has to cross the river Tirap to reach her village and it takes about 15 to 20

minutes from Barma camp. She further stated that as the victim did not return home in time, she went to the bank of the river, but did not find any

boatman. She requested the PW-5, Lasam Tikhak to accompany him to the other side of the river, however, in the meantime, PW-3 arrived there,

who went for search of the victim and she came back home. After sometime her brother came back and told that the victim could not be found.

Thereafter, again her brother accompanied with the villagers went out for search of the victim and at about 8 PM the victim was found lying dead.

She further stated that she had seen the appellants while going to and coming from college in between the dyke and ASEB colony and they gave

obscene signal. During cross-examination she admitted to have not informed the members of her family about the conduct of the appellants.

PW-7, Chet Bahadur Sarki deposed that he came to know about the death of the victim from the village headman. According to him he went to

the place, where the body of the victim was found and had seen the victim in school uniform and her garments were torn. He also stated that the

Magistrate held inquest of the body in his presence and he put his signature in the inquest report (Ext.-17) as a witness. He also stated that police

seized a school bag and a pair of sandals, which were lying near the body.

PW-8, Bipul Kurmi deposed that he had seen the appellants prior to the incident in the Barma Camp side as they were working as building worker

in thermal project. According to him, having heard about the occurrence, he went to the place of occurrence and had seen the body of the deceased.

He was also a witness to the inquest report. He further stated that it was raining on the day of occurrence.

PW-10 deposed that the victim and the accused persons were known to him. He also stated that he had seen the accused persons at Barma

Camp as they were working as labourer. According to him, the VDP Secretary, Amar Bahadur Chetry informed him over phone that a body was

found in the jungle near the Tirap river. He also stated to have seen the victim lying dead. He also stated that he accompanied the police to the quarter

of the accused persons, where the police seized one half pant and a “lungiâ€​ from the quarter of the accused vide Ext.-11 and Ext. 12 (seizure list).

He also stated that police seized a red colour panty of the deceased. This witness also stated that he had noticed scratch marks on the face of one of

the accused, whom he knew as Laskar.

PW-11 was declared hostile. He was basically a witness to the seizure list and stated that police had seized one “lungi†and one half pant vide

Ext. 11 & Ext. 12 and he put his signature in the seizure list as a witness. PW-12 was also declared hostile. According to him, after the incident when

people gathered at the place of occurrence he also went there and had seen the body of the victim near the dyke of Tirap river. He further stated that

on the following day, police seized one half pant and one “lungi†from the quarter of the thermal workers and at that time, one of the accused was

present there, who opened the door and had shown the clothes, which were seized by police.

According to PW-13, he had seen the victim talking to someone over phone at about 2.40 PM, while he was coming home and after 3 / 4 days he

came to know through the news channel that some labourers, who were residing in the thermal quarter had committed rape on the victim. PW-14 also

stated that the accused persons were residing at the thermal quarters.

PW-15, Amrit Longkak deposed that he accompanied the co-villagers, who went across the river and had seen a pair of sandals of the victim near

the embankment, which was identified by the brother of the victim. According to him, a “duppatta†was wrapped around the neck of the

deceased.

PW-16, Nabin Gogoi is the investigating officer, who was attached to Ledo Outpost as Sub-Inspector of Police. According to him, on 29-08-2015,

at about 8.25 PM, ASI Sashi Thakuli of Lekhapani Police Station informed him over phone that a girl was lying abandoned near the bank of the river

at Barma Camp. Upon receiving the said information, the In-charge of the Outpost, S.I., Dipjyoti Dadhara made a GD Entry and entrusted him to

investigate the matter. Accordingly, he reached the place of occurrence at about 8.40 PM and found the body of the victim in partially naked condition

lying on the bank of the river at Barma Camp. In the meantime, a large number of people had gathered and the brother of the victim identified the

body. He seized a black colour bag from the place of occurrence, which contained one purse, one ATM Card, college identity card of the victim, one

academic book and one mobile charger and proved the seizure list vide Ext. 6. He also seized the wearing apparels of the victim vide Ext. 5 and on the

following day he sent the body for post-mortem examination.

PW-17, Sub-Inspector, Dipjyoti Dadhara deposed that having received the information that body of a girl was found lying in abandoned condition in

the bank of the river near Barma Camp, he made a GD Entry and instructed PW-16 to proceed to the place occurrence. He also proved the extract

copy of the said GD Entry as Ext. 14. According to him, the written FIR was lodged on 30-08-2015, on the basis of which, he registered Margherita

PS Case No. 228/15 u/s 376/302 IPC. He also stated that he had seized one check “lungi†from Md. Nuruddin Laskar vide Ext. 11 and one ash

colour pant on being shown by the accused Naziruddin Laskar vide Ext.12. He also stated that he had collected blood samples of the three accused

persons with the permission of the court for the purpose of serological test and DNA profiling. According to him, the blood samples of the accused

and the undergarments of the victim were sent for forensic examination. He further stated that the mobile charger of the victim with mud stain and the

“lungiâ€​ of the accused having suspected mud stain were also sent for forensic examination.

PW-18, Jagadish Brahma is the Executive Magistrate, who held the inquest on the body of the victim and proved the inquest report as Ext.-7.

Appreciating the above evidence, learned trial court convicted the appellants u/s 376/302 IPC and awarded sentence as indicated above.

Assailing the impugned judgment learned Sr. Counsel Mr. HRA Choudhury submitted with vehemence that there was no legal evidence to record

conviction of the appellant, and as such, the impugned judgment is not sustainable. However, supporting the impugned judgment, learned Addl. Public

Prosecutor, Ms. B. Bhuyan submitted that though there was no direct evidence, the charges against the appellants have been adequately proved by

the circumstantial evidence, and as such, the impugned judgment and order calls for no interference. Mrs. M. Bora representing the respondent

adopted the submission of the learned Addl. P.P. and also submitted that the appellants shall not get benefit of the lapses on the part of the

investigation officer.

We have considered the submission made by the learned counsel for both the sides and also meticulously scrutinized the evidence and materials

brought on record.

Admittedly there was no direct evidence and as such, this is a case resting solely on the circumstantial evidence. On perusal of the impugned

judgment and the evidence on record, we find that for recording conviction of the appellants, the learned trial court basically relied upon the following

circumstances.

(i) victim died homicidal death by strangulation.

(ii) The appellants were seen washing their hands and legs in a big drain in front of the house of one (Hussain Ali), where the victim usually took rest.

(iii) On the following day of the occurrence when the appellants were arrested, curvilinear abrasion mark with eschar formation was found on the left

side of the face and neck of accused Nasiruddin.

So far the first circumstance is concerned, there is no dispute at the bar that the victim met with a homicidal death. So far the second

circumstance is concerned, PW-3 deposed that when he reached the house, where the victim used to wait or take rest, he had noticed the appellants

washing their hands and legs in a big drain in front of the said house and they were also cleaning their pants. PW-5 also deposed to have seen the

appellants washing their limbs in the evening at about 4 PM, near the thermal quarters. It is in the evidence of PW-8 that the appellants were

labourers engaged in construction work of the thermal project and he had seen them in the Barma Camp since prior to the occurrence. PW-10 stated

that he had seen the appellants since prior to the occurrence at the Barma Camp as they were engaged as labourers and they were also staying in the

thermal quarter. PW-5 deposed that there were about five numbers of thermal quarters, some of which, were occupied by the employees. PW-5

further stated that the day, on which the incident took place, was rainy and there was mud all around and his legs were also stained with mud. The

PW-14 stated that he had seen the appellants, residing at thermal quarter at Barma Camp. PW-16, the investigating officer also deposed that there

was heavy rain on the day of occurrence. Thus, from the oral testimony of PW-5, PW-8, PW-10, PW-14 and PW-16, it is evident that the appellants

were construction workers engaged in thermal project and they were also residing in the thermal quarter at the Barma Camp area. Therefore, the

place where PW-3 & PW-5 had seen the appellants washing their limbs and clothes was in close proximity to their place of stay. It is also in the

evidence of PW-5 that because of rain there was mud all around. The PW-5 also admitted that his legs were also stained with mud. The testimony of

the PW-5 to the effect that the day of occurrence was rainy also finds support from the PW-16, the I.O. Therefore, the presence of the appellants

near the drain which is in close proximity to their place of stay and washing their limbs and clothes in the evening, by itself, can by no stretch of

imagination be considered as an incriminating circumstance nor can the same be enough to attribute any culpability to the accused, inasmuch as, their

presence and washing hands and legs in the evening, as deposed by the witnesses, viz., PW-3 & PW-5 do not reflect anything unusual.

So far the abrasion marks on the left side of the face and neck of the appellant Nasiruddin, which according to the doctor, could be caused by nail

is concerned, the same also cannot be construed to be an incriminating circumstance, unless the said injuries on the body of the appellant Nasir Uddin

can be linked to the offence. PW-16, the investigating officer had stated that he did not examine the nails of the deceased. During cross-examination

u/s 313 CrPC, when the accused Nasir Uddin was confronted with the medical evidence and the oral testimony of PW-3 as regards the abrasion on

the left side of his face and neck having similarity with nail marks, he stated that those injuries were not caused by nails but by the “shuttering of

wooden articles†during the work. He also stated that he was working as helper of the mason in the thermal power project and he was residing in the

thermal quarter near the Barma Camp and the injury on his face was sustained by the wooden articles. Be that as it may, no evidence could be

brought on record to establish that the curvilinear abrasion marks on the left side of the face of the accused Nasir Uddin was caused by the nails of

the victim or the same had any nexus with the offences in the instant case.

It is discernible from the oral testimony of the prosecution evidence, more particularly the testimony of the investigating officer(PW-16) that the

undergarment of the victim was seized and blood sample of the accused was also collected and the same were sent for forensic examination. The

report of the forensic examination shows that no spermatozoa or blood was found in the undergarments of the victim and therefore, matching of DNA

profile could not be possible. We also find in the evidence of the investigating officer that besides the blood sample and the garments of the victim,

some other articles including a mobile charger of the deceased having stain of mud and some wearing apparel of the accused being “lungi†and

pant having blood/mud stain were also seized and sent for forensic examination. However, we do not find any FSL report in respect of those articles.

In fact, the investigating officers also did not mention anything in their evidence regarding outcome of the scientific examination of those articles seized

vide Ext.-11, Ext.12 and Ext.-6. From the evidence, it is also not discernible whether any such report from the Forensic Science Laboratory was

received or collected. What therefore, crystallizes from the evidence on record is that both the circumstances relied by the learned trial court to record

conviction of the appellants have not been proved to be incriminating circumstances capable of attributing any culpability to the accused/appellants.

Once these two so-called incriminating circumstances are taken out from consideration, prosecution, in fact, is left with no evidence to rope in the

appellants with commission of offence in the instant case.

Though an innocent college going girl has been the victim of a heinous offence like gang rape and murder, no actionable evidence could be

collected by the investigating agency to establish the charges against the appellants. We are, therefore, left with no option, but to hold that the

prosecution evidence is hopelessly inadequate to bring home the charge against the appellants. As such, we set aside the conviction recorded and

sentence awarded by the learned Addl. Sessions Judge against the appellants in Sessions Case No. 226(M)/2015. In the result, the appeal stands

allowed.

The appellants be set at liberty forthwith if not required in connection with any other case.

Send back the LCR.