Alam Miah vs State Of Tripura

Arindam Lodh, J

This appeal is directed against the judgment and order of conviction and sentence dated 29.02.2016, passed by the learned Additional Sessions Judge, Sonamura, West Tripura in connection with the Case No. Sessions Trial (T-1) 11 of 2015 whereby and whereunder the appellant Md. Alam Miah alias Alamgir Hossain has been convicted under Section 302 of IPC and sentenced to suffer rigorous imprisonment for life and also to pay a fine of Rs.10,000/- with default stipulation.

Facts in brief:

On the basis of a written complaint (Ejahar,Exbt.2) submitted by Abdul Rahaman, the Officer-In-Charge of Sonamura Police Station had registered a case under Section 302 of IPC. In the complaint, the complainant has stated that on 02.02.2015, at about 9:45 am he was at his own residence when his grandson Nabir Hossain, s/o Alam Miah informed him that his father Alam Miah alias Alamgir Hossain had hacked his mother Nurjahan Begam alias Mukseda Begam with 'dao' (sharp edged weapon) on her head and fled away. Due to such assault, she fell down and was taken to Hospital where she was declared dead.

On receipt of information, the matter was endorsed to an investigating officer who started investigation and in course of investigation the investigating officer had recorded statements of the relevant witnesses, prepared inquest report and seized wearing apparels of the deceased. Thereafter, postmortem was conducted over the dead body of the deceased, sent the pieces of wearing apparels of the deceased for chemical analysis by the Forensic Examiner and after being satisfied with the prima facie case, the investigating officer submitted charge-sheet under Section 302 of IPC against the accused person for committing offence of murder of his wife.

The case was committed to the Court of learned Sessions Judge and ultimately, the trial was conducted by the learned Addl. Sessions Judge, Sonamura. The learned Addl. Sessions Judge after considering the materials in the charge-sheet has framed Charge against the convict-appellant under Section 302 of IPC.

In course of trial, as many as 22 witnesses were examined by the prosecution and material articles with other documents were also exhibited.

On completion of trial, the accused-appellant was put under examination under Section 313, CrPC where he pleaded his innocence and denied to adduce any evidence in his defence.

After hearing the learned counsels of the prosecution as well as the defence, the learned trial Judge on appreciation of the materials on record had convicted and sentenced the accused-appellant as aforestated.

Being aggrieved by and dissatisfied with the said order of conviction and sentence, the appellant has preferred the instant appeal before this Court challenging the legality and propriety of the said judgment.

Heard Mr. Bijan Saha, learned counsel appearing for the appellant and Mr. Ratan Datta, learned Public Prosecutor appearing for the State-respondent.

Mr. Bijan Saha, learned counsel has submitted that the learned trial Judge has heavily relied on the statements of PW2 and PW13, the two sons of the appellant but the learned trial Judge could not read and appreciate the evidence of the said witnesses properly. Learned counsel has tried to persuade this Court that PW5 Md. Tajul Islam did not witness the incident and he arrived at the place of occurrence after hearing the cries of PW2, so, the learned trial Judge had committed wrong in placing reliance upon the statements of PW5 which he has adduced before the learned trial Judge in course of trial.

Learned counsel had strongly argued that the weapon of offence, i.e., the 'dao' (a sharp edged blunt weapon) was not recovered in course of investigation and only for that reason the prosecution case should be thrown out.

Per contra, Mr. R. Datta, learned Public Prosecutor has submitted that there is clinching evidence against the accused-appellant and the learned trial Judge did not commit any wrong in convicting and sentencing the accused-appellant for committing offence under Section 302 of IPC. Learned P.P. has submitted that the statements made by PW2 and PW13, the two sons of the appellant as well as the statements of PW5, Md. Tajul Islam are found to be consistent altogether starting from investigation and in course of trial and their evidence are trustworthy. In furtherance thereof, the learned P.P. has further contended that the statements of PW2, PW5 and PW13 were substantially corroborated by other witnesses. The injury reports and the medical evidence coupled with the evidence of the Forensic Expert have fully proved the prosecution case and it was the accused-appellant who committed murder by inflicting severe blows by 'dao' upon his wife and committed the offence under Section 302 of IPC. Controverting the argument of learned counsel appearing on behalf of the appellant, Mr. Datta, learned Public Prosecutor has submitted that recovery of weapon in such a case was not at all necessary when ocular testimony leads only inference that it was the appellant who committed murder. The learned P.P. has prayed for affirming the judgment passed by the learned trial Judge.

The rival submissions of the learned counsels as has been highlighted above led this Court to peruse the evidence adduced by the witnesses and the exhibited documents.

Travelling through the evidence of the witnesses, it appears to us that PW2, PW13 and PW5 are the star witnesses of the case.

PW2, Saddam Hossain is the younger son of the deceased and the accused-appellant. He has stated in his evidence that on 2nd February,2015, at about 8 am his parents started quarrel with each other on the issue of food grains. However, he himself and his elder brother Nabir Hossain had managed to stop their quarrel of their parents. Nabir Hossain went to their adjacent vegetable field and he himself came out from their dwelling hut to do earth filling works in their new dwelling building under construction of their homestead land at Sonapur. At about 9:30/9:45 am when he was engaged with earth filling work, suddenly he noticed his father Alam Miah alias Alamgir Hossain, i.e., the accused-appellant was giving repeated blows on the head of his mother Nurjahan Begam alias Mukseda by a 'dao' in their courtyard. Then and there, he raised alarm and rushed out from their dwelling building to save his mother but by that time, his father Alam Miah alias Alamgir Hossain ran away from the place of occurrence towards Bangladesh territory with the weapon of offence. His mother sustained severe cut injuries on her head and fell on their courtyard. His elder brother Nabir Hossain and their neighbours also rushed to the place of occurrence hearing his shouting and arranged for shifting his injured mother to Sonamura Hospital by an auto rickshaw.

PW13, Md. Nabir Hossain, elder brother of PW2 has stated in his evidence that on 2nd day of February,2015, at about 9:30 am when he was working in their vegetable filed adjacent to their homestead land at Sonapur, at that time he heard shouting from his younger brother i.e. PW2 from their home. At the same time, he saw his father Alam Miah to run away towards Bangladesh with a 'dao' in his hand. Then and there, he rushed to their home and saw his mother Nurjahan lying in their courtyard having serious cut injuries on her head and on being asked by him, his younger brother Saddam Hossain, PW2 told him that their father Alam Miah gave repeated blows on the head of their mother Nurjahan by a 'dao' and fled away towards Indo-Bangla border. He forthwith took one towel and covered the head of his injured mother and asked his brother to arrange for a vehicle. By that time, some of their neighbours also had rushed to their home and helped them to shift their injured mother to Sonamura CHC by an auto rickshaw. On the way to Sonamura CHC, he informed his maternal grandfather Abdul Rahaman (PW1) about the incident and requested him to visit Sonamura CHC at once.

PW13 further stated that when they were in the Hospital some police personnel of Sonamura Police Station had visited Sonamura CHC when one police officer had prepared surathal report over the dead body of his deceased mother in presence of him and others and that police officer also obtained his signature at that surathal report. On identification, the signature of the witness has been marked as Exbt.1/3. The said witness has further stated that the accused-appellant had a habit of quarrel with his mother Nurjahan frequently since his father was interested to marry second time. On the day of occurrence also in the early morning, there was a quarrel between their parents. After expiry of about 5 months and 5/6 days from the date of occurrence, his father i.e. the appellant had returned home from Bangladesh. But since the date of occurrence he along with his brother PW2 have been residing in the house of their maternal grandfather.

Nothing material contradiction came out from the cross-examination by the defence.

PW5, Md. Tajul Islam has stated in his evidence that he heard shouting of Saddam Hossain (PW2) and he had rushed to the house of the appellant where he found the mother of PW 2 and PW13 was lying on their courtyard with serious bleeding injuries. At that time, Saddam Hossain (PW2) told him that his father gave blows on the head of his mother by a 'dao' and ran towards Bangladesh border situated on the western side of homestead land of the appellant. The said witness had seen the appellant to flee away towards Bangladesh territory. By that time other local people also had arrived at the spot.

Nothing material contradiction is revealed from the cross-examination of the said witness by the defence.

PW1, Md. Abdul Rahaman has stated in his evidence that when he was in his house on 2nd February,2015 at about 9:30/9-45 am, he received one telephone call from his eldest grandson Nabir Hossain in his mobile phone and informed him that his father i.e. the appellant had killed his mother and fled away to Bangladesh carrying with the weapon of offence with him. The said witness has further stated that his grandson Nabir Hossain (PW13) also informed him that his father had killed Nurjahan Begam at their home. The said witness also had rushed to the Sonamura Hospital where he saw the dead body of Nurjahan Begam with some cut injuries on her head. Subsequently she was declared dead. PW1 has further stated that he saw his grandsons namely Saddam Hossain and Nabir Hossain weeping lying on the floor of the Hospital. After few minutes some police personnel had arrived at the Hospital and prepared surathal report where he put his signature (Exbt.1/1 ). He identified the signature at the time of his deposition. The said witness has further stated that the Ejahar was written according to his own version where he put his signature at the foot of that Ejahar having been satisfied about the correctness of the contents of the Ejahar. He also identified his signature in the Ejahar which has been marked as Exbt.2/1.

Nothing material contradiction is revealed from the cross-examination of the said witness by the defence which is relevant to decide this case.

PW3, Md.Ismail Miah has stated in his evidence that on receipt of a telephone call from his uncle Abdul Rahaman (PW1) that his cousin Nurjahan Begam was killed by the appellant, he had rushed to the Sonamura Hospital where he found that the attending medical officer had already declared his cousin dead. PW3 has written the Ejahar as per the dictation of PW1. He had identified the contents of the said Ejahar (Exbt.2) as Scribe and his signature on the Ejahar has been identified as Exbt.2/2.

PW4, Md. Khurshed Alam also has stated in his evidence that the informant Md. Abdul Rahaman (PW1) informed him over mobile phone on the date of incident at about 10:30/11:00 am that Nurjahan was killed by the appellant. The said witness also put his signature in the surathal report which has been marked as Exbt.1/2, on identification.

PW6, Mst. Alaya Khatun has stated in her deposition that the appellant is her next door neighour. She has stated that one day at about 9:00 am when she was attending her natural call in the backside of their dwelling hut, at that time, she heard shouting of Saddam Hossain, the son of victim Nurjan Begam from their home. At the same time, she saw accused Alam Miah to flee away towards Bangladesh border with a 'dao' in his hand. Then and there, she rushed to the house of the appellant to verify the cause of such shouting of Saddam Hossain (PW2) when she saw victim Nurjahan was lying on their courtyard with serious bleeding injuries on her head. She also saw their neighbours Tajul Islam, PW5 and Joyful Khatun (PW 7) in the courtyard of accused Alam Miah. On being asked by her, Saddam Hossain told them that his father Alam Miah had assaulted his mother by a 'dao' and fled away towards Bangladesh territory. She has further stated that they arranged for shifting the injured to Sonamura Hospital by an auto rickshaw. She identified the appellant in the dock.

In her cross-examination she has stated that she did not see the accused Alam Miah to hack Nurjahan. She has volunteered in course of her cross-examination that the appellant had conjugal dispute with his wife Nurjahan and the accused Alam Miah had a habit to torture his wife Nurjahan frequently.

PW7, Mst. Joyful Khatun has stated in her evidence that on the date of incident at about 9:30 am when she was sweeping their courtyard suddenly she heard shouting from the house of accused-appellant and at the same time, she saw the appellant to flee away towards Bangladesh territory with a 'dao' in his hand and she forthwith had visited the house of the appellant when she saw Nurjahan Begam, the wife of accused Alam Miah lying on the courtyard with serious cut injuries on her head. Their neighbours Tajul Islam and Alaya Khatun had also rushed to the place of occurrence. At that time, Saddam Hossain, the younger son of the victim Nurjahan told them that his father Alam Miah had assaulted Nurjahan Begam by a 'dao' and fled away towards Bangladesh territory.

In her cross-examination she has stated that there is no house in between their residence and the house of the appellant and both the houses had boundary fencing with tin sheet. The said witness has further stated in her cross-examination that there is a boundary wall in between the house of Tajul Islam (PW5) and the house of accused Alam Miah.

PW7 has further stated that she did not see the accused to assault Nurjahan by 'dao' with his own hand. But she has denied the suggestion that she did not see the appellant to flee away towards Bangladesh territory with a 'dao' in his hand.

PW8, Smt. Sharmila Debbarma is a constable of Sonamura Police Station who has stated that the concerned medical officer had handed over one piece of cloth having blood sample of the deceased and the wearing apparels of the deceased to SI Drabajay Reang when all those articles were seized by the said SI preparing a seizure list in her presence where she put her signature on the same as a witness. Her signature in the seizure list was identified and marked as Exbt. 5/1.

PW9, Sri Rajesh Sarkar has stated that on 02.02.2015 at Sonamura CHC, one medical officer Dr. Sarmistha Das after completion of postmortem examination over the dead body of the victim had handed over one piece of cloth having blood sample of the deceased and the wearing apparels of the deceased to SI Dhrabajoy Reang when all those articles were seized by the said SI after preparing a seizure list in his presence and obtained his signature on the said seizure list which has been marked as Exbt. 5/2.

PW10, Md. Harun Miah has stated that on 11th day of July,2015, he visited Sonamura Police Station for the purpose of his passport verification when he saw accused-appellant inside the lockup. The appellant was previously known to him and at that time the appellant had called him by name from the lockup. Accordingly, the police officer asked him whether accused Alam Miah was known to him or not when he replied in affirmative. Then that police officer brought accused Alam Miah out from that lockup to the adjacent verandah in presence of some other witnesses and one Magistrate. There was also one Videographer with a camera. The said witness has further stated that thereafter on being asked by that police officer, the appellant in presence of them disclosed that about 5/7 months back he had assaulted his wife by a 'dao' on her head and fled away towards Bangladesh with the weapon of offence.

PW10 has further stated that the appellant had told before them that subsequently, he threw out said 'dao' to a place which was impossible for him for identification after a lapse of a considerable period of time.

In his evidence, PW10 has stated that the appellant had told them that he took shelter in the house of his sister in Bangladesh and during those days he used to work in a hotel. The said witness has further stated that the entire statement made by the appellant was recorded by the police officer in presence of them and the entire episode was video graphed in presence of them and later on, the said police officer had obtained his signature on the statement sheet as a witness. He identified his signature on the said statement sheet which has been marked as Exbt. 6/1.

PW11, Sri Suman Choudhury is a witness who saw the recording of the statement made by the appellant in the police station which was also video graphed. The said witness also put his signature in the statement sheet which has been marked as Exbt.6/2.

PW12, Sri Biswanath Debnath is also one of the witnesses who saw the statement which the appellant made inside the police station.

PW14, Dr. Sharmistha Das who has stated in her examination-in-chief that on 02.02.2015 she was posted at Sonamura CHC as a medical officer. On that day, one injured woman namely Nurjahan Begam, aged about 37 years was brought to the Hospital with cut injury on her head. She attended the patient in the Emergency Block and found her dead. The said witness has conducted postmortem examination over the dead body of Nurjahan and found the following injuries:-

"External injury- four lacerated wound over scalp. Between 2 parietal eminence no other injuries. Scalp and skull is wounded, 4 lacerated wound present, vertebrae normal. Membranes- meninges in the occipital and parietal region on both hemisphere are cut. Brain matters are damaged. Spinal cord healthy.

Multiple deep sharp cut injuries involving scalp, skull in between to parietal bones. 4 in nos. which are as follows: (1) Sharp cutting injury about 9 cm X 3 cm diameters at the mid-line in between two parietal eminences involving skull. (2). Sharp cutting injury about 4 cm X 2 cm in diameter at left parietal region involving skull, (3) Two sharp cutting injury about 2 cm X 2 cm in diameter involving scalp and skull at left parietal bone, (4) Meninges in the occipital and parietal region on both sides are cut at 4 sites, (5) Profuse fresh bleeding present from all the injuries, (6) Brain is involved at occipital region with fresh blood oozing from the wound at 4 sites one about 5 cm X 3 cm X 2 cm, others are about 2 cm X 3 cm X 1 cm in diameter approximately.

Cause of death: Traumatic CVA with subdural hemorrhage."

PW15, Sri Dipraj Roy has stated in his evidence that on 11.07.2015 he was discharging his duty as Deputy Collector and Magistrate at Melaghar. He is also one of the witnesses who was present at the time of recording of the confessional statement made by the appellant inside the police station which was videographed.

PW16, Sri Arjun Datta is a Videographer who has video graphed the entire episode of video graph by his digital camera. He has stated that the statement made by the appellant inside the police station has been video graphed by him.

PW17, Sri Sujit Das is seizure witness of one CD of video graph. PW18, Sri Jayanta Paul is also one of the witness of the seizure of one Sony Compact Disc (CD) containing the video recording of the statements which the appellant had made inside the police station.

PW19, Inspector Naryan Saha, the Officer-In-Charge of Sonamura Police Station who was discharging his duty on 2nd day of February,2015. He has stated that on 2nd day of February,2015 he received a telephone call from Dr. Sharmistha Das of Sonamura CHC at 1:25 hours when he was informed that one female dead body was brought to Sonamura CHC by the relatives of the deceased and the situation of the Hospital was not good enough due to presence of so many people with the dead body and Dr. Sharmistha Das also sought for urgent police help. He forthwith recorded the fact in the GD Entry Book vide Sonamura PS GDE No.58, dated 02.02.2015 and directed SI Drabajay Reang to proceed towards Sonamura CHC with other police personnel. Accordingly, SI Dhrabajoy Reang accompanied by some other police personnel left Sonamura Police Station at the strength of Sonamura GDE No.59 dated 02.02.2015. On the same day, at about 4:35 pm, SI Drabajoy Reang returned to Sonamura PS and handed over him one written Ejahar submitted by one Abdul Rahaman (PW1) and accordingly, on receipt of that written Ejahar, he registered Sonamura PS Case No.2015 SNM012 under Section 302 of IPC against the appellant Alam Miah.

PW19 being the In-Charge of the Police Station had endorsed the case to SI Dhrabajoy Reang for further investigation.

PW20, SI Drabajay Reang being the investigating officer has stated in his exanination-in-chief that in course of his investigation he recorded the statements of relevant witnesses and seized material articles and documents like inquest report, postmortem report, blood stained pieces of wearing apparels of the deceased etc. After completion of investigation, he found a prima facie case against the accused-appellant and submitted charge-sheet against accused-appellant under Section 302 of IPC.

PW21, Dr. Subhankar Nath is the Scientific Expert who performed chemical analysis of the samples that were sent by the I.O. He has stated that on 27.08.2015 he was posted as Deputy Director-cum-Assistant Chemical Examiner of Govt. of Tripura. After receipt of the samples, he has analyzed and on biological examination he found the blood stain on the samples which were sent by the I.O. to be of human origin.

Nothing material contradiction is revealed in course of his cross-examination.

PW22, Mrs. Hena Begam has stated in her deposition that at the relevant point of time she was working as Judicial Magistrate 1st Class, Court No.4, Agartala. She has stated that on 3rd February,2015 she was In-Charge of SDJM, Sonamura and on that day I.O. has produced one witness namely Saddam Hossain

with a prayer to record the statements of the witness under Section 164(5) of CrPC. Accordingly, after administering oath she has recorded the statement and after recording the same she has read over the contents to the witness and finding it to be correct, the said witness put his signature on the statement. She has further stated that she has also given her certificate below the statement along with her signature and official seal. The said Judicial Officer has identified the statements of Saddam Hossain which has been marked as Exbt.4. She has also identified her signature at the foot of the recorded statement and on identification it has been marked as Exbt.4/2.

We have given a thoughtful consideration to the evidence led by the witnesses. As we said earlier PW2, PW13 and PW5 are the most vital witnesses of the case and according to us their statements were substantially corroborated by the other witnesses of the case. As we find, PW2 being the youngest son of the deceased of the appellant had seen the incident when he was in the dwelling house and by the time he came out of the said dwelling hut, his father had ran away towards Bangladesh territory carrying with the weapon in his hand. The said witness has categorically stated that he has noticed that the appellant was giving repeated blows by 'dao' upon his deceased mother. The evidence that he has shouted just after witnessing the incident has been corroborated by the statements of PW3, PW4, PW5, PW6, PW7 who are the adjacent neighbours of the said witness. PW13, the elder brother of PW2 and the eldest son of the deceased and the appellant has also heard the shouting of PW2. The quarrel between the deceased and the appellant has also been proved by the statements of PW2, PW13, PW6. The evidence of quarrel has also not been shaken by the defence. As such, the first episode of quarrel followed by the assault by the appellant upon his wife Nurjahan, which has been witnessed by PW2, has been proved beyond any shadow of doubt.

Now, if we come to the 2nd sequence of the entire episode that the appellant just after the occurrence had fled away towards territory of Bangladesh with the weapon of offence in his hand, then, it is evinced that PW13 had seen the appellant to run away with the 'dao' in his hand towards Indo-Bangla border. The said incident of running away of the appellant with the 'dao' in his hand has also been corroborated by PW6, PW6, PW7 who are the neighbours and rushed to the spot after hearing the cries of PW2.

The 3rd sequence that the deceased had fallen down on the ground due to the said assault and the severe cut injuries on her head has been evinced by the statements of PW2, PW3, PW5, PW6, PW7 and PW13 who have arrived at the spot just immediately after the occurrence of the incident.

PW2 had disclosed that it was the appellant who had dealt serious blows on the head of his mother and the said disclosure has been made just immediately after the occurrence of the incident.

Then the next episode is the information that PW13 has given to the informant, PW1 that his mother was killed by his father, the accused-appellant herein. The shifting of the body of the mother of the PW2 and PW13 to the Sonamura CHC has also been proved by the witnesses. PW1 had arrived at the Sonamura CHC just after the receipt of the information by PW13. PW1 then informed the said fact of killing of Nurjahan Begam to PW3 and PW4 who were asked to come to the Hospital. So, this episode also has been proved beyond any reasonable doubt.

Now if we come to the evidence PW14, Dr. Sarmistha Das, it is found that the nature of injuries is enough to prove that the assault was made by the sharp cutting injuries i.e. 'dao' and the said witness has categorically stated that cause of death is traumatic CVA with subdural hemorrhage. The chemical analysis also reveals that the blood stain on the cloth is the blood stain of the deceased.

Thus, we find that entire chain of the circumstances of killing of Nurjahan Begam by the appellant has been proved beyond shadow of doubt and the ocular evidence only points out to the guilt of the appellant that he inflicted severe blows by 'dao' on the head of the deceased and the evidence of all the witnesses appears to be very strong and overwhelming which remain un-contradicted.

We have given our thoughtful consideration to the submission of learned P.P. that the accused has made confessional statement inside the police station which will be evinced from the statements of PW10, PW11 and PW15, PW16, PW17, PW18. It is settled law that a confessional statement which has made by an accused when he was in custody under the police is not admissible in evidence. As such, we repel the submission of the learned P.P. We also have given our anxious consideration to the submission of learned counsel appearing for the appellant that the weapon of offence has not been recovered in course of investigation. The Apex Court in a catena of decisions has held that recovery of weapon of offence is not sine qua non when ocular testimony is consistent, trustworthy and overwhelming in regard to the guilt of the accused. As such we repel the submission of learned counsel appearing for the appellant that due to non recovery of the weapon of offence i.e. the 'dao' is fatal to the prosecution.

In the overall assessment and evaluation of the evidence on record starting from the episode of quarrel between the parents of PW 2 and PW13, shouting of PW 2, inflicting of blows by 'dao' on the head of Nurjahan Begam, arrival of PW 13, PW5, PW6 and PW7 at the place of occurrence and then fleeing away of the appellant towards Bangladesh territory just after the occurrence of the incident have been proved beyond reasonable doubt. We also do not find any inconsistency between the statements which PW 2 made before the Judicial Magistrate under Section 164(5) of CrPC and the statements made in course of trial. The chain of links connecting the accused-appellant with the crime is conclusive. Accordingly, we do not find any merit to interfere with the evidence recorded by the learned trial Judge and accordingly, the instant appeal stands dismissed.

Consequently, the judgment and order of conviction and sentence dated 29.02.2016, passed by the learned Additional Sessions Judge, Sonamura, in ST (T-1) 11/2015 is hereby maintained and affirmed.

Send down the LC Record along with a copy of this judgment.