Md. Yunus vs State of Bihar

Anjana Prakash, J. - The sole Appellant has been convicted under Section 302 Indian Penal Code and sentenced to undergo imprisonment for life with fine of Rs. 5,000/- under the said count by judgment of conviction and order of sentence dated 10th and 17th December, 2012, respectively, passed by the Ad hoc Additional Sessions Judge, IV, Kishanganj, in Sessions Trial No. 1046 of 2008 /Tr. No. 11 of 2009 arising out of Dighalbank (Garbandanga) P.S. Case No. 45 of 2008/G.R. No. 606 of 2008.

The case of the prosecution according to PW 2 (Amesha Khatoon), daughter of the deceased and the Appellant is that at the night of 18.06.2008 while she was sleeping along with her mother, her father entered the house and sat on the chest and throttled her. When she started crying, she was also threatened. She then raised halla at which several villagers caught hold of the Appellant and kept him confined. The reason for the occurrence was constant fights between the two. This information was given to the police on 18.06.2008 at 3.40 PM in presence of Tanweer Alam (PW 7), who was the Mukhiya of the village.

During trial, the prosecution examined eight witnesses, whereas, the defence examined one witness.

PW 3 (Hasbur Rahman) and PW 4 (Md. Farman) have been declared hostile.

PW 1 (Thuman) is the maternal grand father of the Informant, who stated that his daughter-deceased was married to the Appellant and there were constant fights between the couple because the Appellant had an evil eye upon their daughter i.e. the Informant. Previously also, he had assaulted her very brutally.

In cross-examination, there is nothing which is of note.

PW 2 (Amesha Khatoon), the Informant, stated that the Appellant was the father, whereas, the deceased was the mother and at about mid night while she was sleeping along with her brother, sister and mother, suddenly the deceased entered the house and throttled the mother. When she protested, she was also threatened. The reason for the occurrence was that his father had an evil eye upon her to which the mother used to protest. She disclosed that she told the villagers about the occurrence at which the police came and recorded statement in presence of PW 7 (Tanweer Alam) and Motiur Rahman (not examined). She stated that her father was caught hold by the villagers and kept confined.

In cross-examination, she stated that after the occurrence she was married to the paternal cousin to which the father was opposed but her mother had supported the marriage. There is nothing which is of importance in further cross-examination.

PW 5 (Md. Sultan) is a hearsay witness, who stated that he heard the crying of the Informant at which he went there and asked her, so, she disclosed that the Appellant had committed the murder of her mother. The police then came and recorded statement of everyone.

In cross-examination, he stated that Md. Yunus (Appellant) was also sitting nearby looking very scared.

PW 6 (Md. Mashud Alam) is a formal witness who has proved the Inquest Report which is Ext.1. He also stated that he heard that the Appellant had killed his wife.

PW 7 (Tanweer Alam) is also a hearsay witness and corroborates the Informant''s version and also that the police was called and the fard-e-bayan was recorded on which he also signed which he proves as Ext.1.

In cross-examination, he stated that he was the Mukhiya of the village and had reached the place of occurrence where he found number of persons gathered. There is nothing else which is note in the cross-examination.

PW 8 (Dr. R. Hassan) is the doctor, who conducted Post Mortem Examination on the very same day and found following injury on the person of the deceased.

"Front of neck is swollen below the prominence of thyroid cartilage. It appears blackish. On dissection of neck, subcutaneous tissues look congested. On further dissection, large muscles of neck are contused at many places. On dissection of larynx and trachea, mucus membrane is congested, two upper trachea rigs are fractured."

We find that the cause of death was asphyxia and shock as a result of throttling manually.

In his cross-examination, there is nothing which is of note.

DW 1 (Sajauddin) has been examined on behalf of the defence, who stated that when he reached the house of the Appellant, he was told by him that the deceased had died because the Almirah had fallen on her.

This witness was evidently not examined by the police and it appears that the Appellant has tried to create a false defence in regard to death of the deceased because no external injury was found on the person of the deceased except the mark of throttling.

On going through the short evidence of the witnesses, we find that there is complete corroboration of the version of the Informant, who had no reason to implicate her own father in the present occurrence, by the medical evidence when the doctor found the mark of throttling which was the cause of death.

In such circumstances, when independent witnesses Md. Sultan (PW 5) and Tanweer Alam (PW 7), who was Mukhiya of the village, also supported the version of the Informant as also the evidence of Thuman (PW 1), who was maternal grandfather, we see no reason to interfere with the impugned judgment of conviction and order of sentence.

In the result, the appeal is dismissed.