Jainal Abedin vs State of Assam

This appeal arises out of judgment dated 8th of March 1996 delivered by Sessions Judge, Darrang at Mangaldoi in Sessions Case No. 39 (DM)/92, thereby holding the Appellant guilty of offence punishable u/s 302 IPC and sentenced him to undergo imprisonment for life with fine of Rs. 500/- or in default of payment of fine to suffer one month''s R.I.

Prosecution case stated in brief was Mustt. Undia Khatun Samartabhan, a widow aged about 24/25 years, whose husband had died a couple of years ago was living with her brother Nur Islam, the complainant P.W. 5 prior to it she lived with Anr. brother Osman Ali, P.W. 2 but because of some quarrel with his wife Mustt. Sayera Khaton, P.W. 8, she started living with the complainant Nur Islam.

On the fateful night intervening 21st and 22nd of February, 1991, when Nur Islam, P.W. 5 and his wife Jamiran Nessa, P.W. 4 had gone to some other place, some miscreants intruded into the house by breaking open the door and attempted to commit rape on Undia, she resisted to her utmost and raised alarm. On such resistance being offered she was strangulated to death. The miscreant is named as the present Appellant, hearing her cries P.W. 2 Osman and P.W. 8 Sayera Khatoon went to the house. Undia was found lying unconscious. P.W. 2 poured a little water on her head, after some time she regained consciousness and told her brother that it was the accused Appellant who attempted to commit rape on her when she resisted she was kicked by the accused in her belly. Undia was taken to the hospital next day morning but she breathed her last on way to the civil hospital.

It is the prosecution case that Nur Islam P.W. 5 on coming to know of the incident through his brother Osman Ali P.W. 2 went to lodge Ejahar, Ext. 3 which resulted in the registration of offence and prosecution of the Appellant on completion of investigation. The FIR, Ext. 3 was lodged on 24th, that is to say, three days after the incident. The FIR, Ext. 3, itself contains a note at the end to the following effect:

The reason behind the delay in lodging the ejahar is my late arrival (at home) from the place where I work.

The investigation was conducted by P.W. 11, who visited the place of occurrence and held inquest, Ext. 2, the dead body was sent for post-mortem examination. Prior to the registration of the Ejahar, Ext. 3, which was admittedly handed over to the I.O. at the place of the occurrence around 9-00 A.M. on 24th, he had already received a wireless message from Panbari Police Outpost on 23rd itself, this wireless message has not seen the light of the day who informed the Panbari Police Outpost and what was that information received by the police is again suppressed and not placed on record, the I.O. has himself admitted. On completion of investigation the accused was charged and tried for the above offence. Prosecution examined, as many as 11 witnesses including the Medical Officer, P.W. 1 performing the autopsy and the Investigation Office. Out of these witnesses P.W. 4 Mustt. Jamiran Nessa, wife of the complainant P.W. 7 Habel Ali, P.W. 9 Md. Ajimuddin and P.W. 10 Hakimuddin Ahmed were declared hostile by the prosecution, They have not supported the prosecution case. The trial Court, however, found the accused Appellant guilty of the offence charged and convicted and sentenced him as already noted above. Hence this appeal.

Mr. B.K. Goswami, learned Sr. Counsel appearing for the Appellant has assailed the trial Court''s findings and appreciation of evidence as perverse. According to him the trial Court has erred both on facts as well as in law. The findings recorded could not have been arrived at by any reasonable prudent man in face of the glaring inherent infirmities in the prosecution case. The trial Judge was palpably wrong in treating the Ejahar, Ext. 3, and FIR, within the meaning of Section 154 Code of Criminal Procedure. The learned Judge further erred in whole hog attempting the case diary statement of witnesses declared hostile in contravention of the proviso to Section 162. The delay in filing the FIR and disclosing the name of the accused has not been judged on the yard-stick of human probabilities and erroneously accepted as gospel truth. The learned trial Judge has completely overlooked the admitted enemity between Osman Ali and the accused, who had a long standing dispute over property. The conviction can not be supported on any count.

Mr. D. Goswami, learned public prosecutor appearing for the Respondent State, on the other hand, maintained that delay in lodging the FIR, stands explained and would not result in throwing the prosecution case over-board which is amply corroborated. The lapses on the part of the I.O. are not such as to rob the prosecution story of its intrinsic truth. The conviction recorded by the trial Court does not call for any interference. We take up first the question whether the Ejahar, Ext. 3, can be said to be an FIR within the meaning of Section 154 Code of Criminal Procedure.

Undisputedly if was handed over to the I.O. P.W. 11 when he visited the place of occurrence on 24th morning and this visit to the place of occurrence is by itself a step in investigation and any statement made to the police either orally or in writing after commencement of investigation is hit by Section 162 Code of Criminal Procedure. As if it is not enough there was a wireless message, received at Kalaigaon police station from Panbari Police Outpost a fact admitted by the I.O., P.W. 11. This message has not seen the light of the day, it has not been placed on record. Admittedly it was prior in point of time and the prosecution has suppressed the earliest version of the prosecution ease. Learned Counsel appearing for the Appellant was therefore right in his submission that it calls for an adverse inference against the prosecution for non-production of the wireless message. What was the basis on which the message was sent to the police station that report is also not placed on record. Who was the informant and what was the information given by him are all kept back. In these circumstances, in any view of the matter, the learned Judge of the trial Court was palpably wrong in treating Ext. 3 as an FIR within the meaning of Section 154 Code of Criminal Procedure.

The importance of the earliest version of the prosecution story in criminal case were overemphasized. The accused Appellant as well as the Court had been deprived of that earliest version which arms importance in face of the stand taken by the Appellant. That some miscrcants is sought to be substituted by framing him up due to enemity which again is an admitted fact by both P.W. 2 Osman Ali and his wife P.W. 8, they had a long standing dispute over landed property and Osman Ali is the brother of the deceased.

The trial Judge has sought corroborative support from the statements made by witnesses Jamiran Nessa, P.W. 4, Habel Ali P.W. 7, Md. Ajimuddm, P.W. 9, and Md. Hakimuddin Ahmed P.W. 10, who were declared hostile at the trial. Learned Counsel for the Appellant was highly critical about the manner in which the trial Court has dealt with their previous statements recorded u/s 161 Code of Criminal Procedure and not only allowed to go whole hog on record but also made use of to corroborate the prosecution case in clear contravention of the proviso to Sub-section (1) of Section 162 Code of Criminal Procedure. It is a settled proposition of law that this case diary statements cannot be used for corroborating the prosecution case even in confronting the witness declared hostile by the prosecution with his or her previous statement. The manner provided by Section 145 of the Evidence Act and the procedure as indicated in the proviso to Sub-section (1) of Section 162 Code of Criminal Procedure has not been followed by the trial Judge. To elaborate the I.O., P.W. 11 in his evidence has literally reproduced the whole statement made by Habel Ali recorded by the learned Judge:

He (Habel Ali) said Undia herself had reported him all this. I have not inquired about who the younger brother of Osman was or his whereabouts. I have nor examined any witness either regarding this. P.W. Najimuddin told me.

A mere reading of the proviso to Sub-section (1) of Section 162 Code of Criminal Procedure would have made it clear that it is only that part of the statement if duly proved which may be used by the accused and with permission of the Court by the prosecution to contradict such witness, in the manner provided by Section 145 of the Indian Evidence Act. The whole hog reception of such statements in evidence needs to be peprecated. It is only such part which is intended to contradict a witness, which can (sic) allowed to go on record and how to prove this contradictions has been succinctly dealt with by the Supreme Court in the well known Tahsildar''s case AIR 1959 SC 072.

Learned Counsel appearing for the Appellant rightly pointed out that the appreciation of evidence, is equally faulty. The learned trial Judge erroneously used the case diary statement for the purpose of corroboration. He has failed to comply the yardstick of human probabilities, to the evidence adduced by the prosecution. P.W. 2 the brother of the deceased was the first to respond and rushed to the rescue of his sister who was crying for help. Surprisingly enough his conduct, which has nor at all been adverted to by the trial Court, is such which fails to inspire confidence for almost 2 (two) days till arrival of his brother he was keeping quiet. He did not disclose the name of the assailant although he had come to know the same through his dying sister. This conduct in not disclosing the name of the assailant at the earliest opportunity, which he had many, belies his claim of having told the name of the accused as the assailant by deceased Undia, Faced with almost identical Situation, the Supreme Court in Panda Nana Kare Vs. State of Maharashtra, has held as the identity of the accused was disclosed at belated stage conviction could not be based on the testimony of the eye-witness not of those witnesses who asserted that the eye-witness told the name of the accused to them immediately after occurrence.

P.W. 4 is none else than the wife of the complainant. She does not support the prosecution so far it relates to the complicity of the accused. On the other hand she has come out with a categorical statement that when asked by Osman Ali Undia stated: "I could not recognise the man". Although she has been subjected to a fairly long cross-examination of being declared hostile. Nothing material has been elicited from her. Even according to Nur Islam, P.W. 5 he was informed by his brother Osman Ali. Going through the evidence of Osman Ali, P.W. 2, there is no indication whatsoever that he had informed or narrated the incident to his brother Nur Islam. In this view of the matter, where the source of information does not support the person informed, his statement also becomes hearsay. The learned trial Judge has placed heavy reliance on P.W. 2 Osman Ali and his wife Sahera Khatun, P.W. 8 without making any attempt whatsoever to assess and evaluate the evidential value of their statements. Even for seeking corroboration, the corroborative evidence must come from independent reliable source. A discrepant witness can not lend support or corroborate to Anr. discrepant witness as already noted. The trial Court has failed to appreciate the prosecution evidence in its right perspective. P.W. 8 Sayera Khatoon who offered water to the unconscious Undia also does not corroborate Nur Islam about being told of the incident by her husband Osman Ali. The investigation in this ease has also been criticised as most unfair and partisan. No attempt whatsoever was made by the investigating agency to find out the truth. The I.O. in his evidence has admitted that he did not bother to enquire about the younger brother of Osman Ali, P.W. 2 although this younger brother has figured in the statements recorded by him. A muffler is said to have been left behind by the accused as testified by P.W. 8, no attempt to connect the muffler with the accused, no investigation in this direction. It was allowed to be given to the accused by the complainant''s wife. Such perfunctory investigation in a serious case like murder is not only to be regretted but also to be deprecated in no uncertain terms. It has come in the evidence of P.W. 2 that neighbours Kasem Ali and Khusammat had come on the spot when he was pouring water on his unconscious sister. These neighbours though specifically named have not been examined during investigation, let alone their production before the Court as witnesses. The Supreme Court in State of Bihar and Another Vs. P.P. Sharma, IAS and Another, has pointed out the duty of an investigating officer in the following words:

As regards the investigating officer, he has wide powers under the Code of Criminal Procedure. He has to perform his duties with the sole object of investigating the allegations and in the course of the investigation he has to take into consideration the relevant material whether against or in favour of the accused. Simply because the investigating officer, while acting bona fide, rules out certain documents as irrelevant, it is no ground to assume that he acted mala fide. The police-report submitted by the investigating officer has to pass through the judicial scrutiny of a Magistrate at the stage but in case the accused person has any grouse against the investigating officer or with the method of investigation he can bring to the notice of the Magistrate his grievances which can be looked into by the Magistrate. When the Police report u/s 173 Code of Criminal Procedure has to go through the judicial scrutiny it is not open to the High Court to find fault with the same on the ground that certain documents were not taken into consideration by the investigating officer. We do not, therefore, agree with the High Court that the FIR and the investigation is vitiated because of the mala fide on the part of the informant and the investigating officer.

Even the prosecution is also conscious of the fact that there was inordinate delay in lodging the FIR and it was precisely for this reason that an explanation has been appended to the Ejahar, Ext. 3, stating that because of absence of Nur Islam, P.W. 4 from the house on the night of the incident the FIR could not be lodged after his arrival. But the falsity of this theory has been exploded by the statement of P.W. 2 who categorically stated before the Court that Nur Islam and his wife came to the spot after he had poured water on his unconscious sister who regained consciousness. The prosecution has not choosen to declare him hostile on the point thus leading the defence to believe that prosecution accepted the version that Nur Islam came on the spot as given out by P.W. 2. Apart from the delay in lodging the FIR, there is a calculated attempt on the part of the prosecution to suppress the earliest version as was reported at the Panbari Police Outpost. The wireless message sent to the police station is deliberately withheld. No explanation is assigned or offered by the I.O. in his evidence.

In view of the foregoing discussion, it cannot be said that the prosecution has successfully brought home the charge to the accused, the conviction and sentence as recorded by the trial Court stands on quick sand, it is liable to be quashed and accordingly quashed. The appeal stands allowed. The conviction and sentence recorded by the trial Court are set aside. Fine, if paid or deposited, be refunded to the Appellant.