Mustt Hawa Khatun vs Abdul Aziz And 3 Ors

AM Bujor Barua, J

Heard Mr. N Haque, learned counsel appearing for the appellant and Mr. MA Sheikh, learned counsel for the respondent accused persons. Also heard Mr. TK Mishra, learned Additional Public Prosecutor for the State of Assam.

An ejahar dated 07.06.2008 was lodged by one Harmuz Ali before the In-Charge of Alopati Char Police outpost, inter-alia stating that at around 10.30 pm on 06.06.2008 the accused Nos. 2 and 3, namely, Jasmat Ali, son of Abdul Aziz, Muktar Ali, son of Sahid Ali and Joban Ali, son of Abdul Aziz had called his nephew Almas, son of Abdul Gafur away from his home and took him to the house of accused No.1, Abdul Aziz, son of Late Jal Mahmud Munshi. It was also alleged that at the instance of the accused Abdul Aziz, the other accused persons had severely beaten up his nephew and killed him.

In the Judgment dated 28.09.2015 of the learned Additional Sessions Judge (FTC), Barpeta in Sessions Case No.207 of 2011, the learned Court below in paragraph-52 of its Judgment had quoted as such:

" Apart from above, the evidence on record shows that it was the accused persons who reported to the police regarding entry of the victim into their house at night. The evidence of PW-1 shows that the accused Abdul Aziz reported about the victim. If the accused persons caused injury to the victim, they would have took the initiative to hide the dead body or shift the victim to other place at night and never report it to the police or PW-1. All the above circumstances fails to infer guilt of the accused persons rather it supports innocence of the accused persons. The defense seems to have discharged its burden of the accused persons by tendering the evidence of DW-2 which indicates that the victim was not in the house of the accused persons immediately before the occurrence. Due to discrepancies on the above evidence on record, the last seen theory cannot be applied against the accused persons. Hence, two views appear from the above circumstances. One is that it is possible that the accused persons caused death in their house by beating him up. Other view is that the victim while returning home after having tea with DW-2, he might be beaten up on the road by some miscreants and fled away. The victim thereafter, came to the house of the accused persons where he took his last breath."

The learned court took a view that if the accused persons had caused injuries to the deceased, they would have taken the initiative to hide the dead body or shift the victim to other place at night and not report it to the police. But as the accused persons themselves had reported to the police as regards entry of the deceased into their house at night, accordingly, a view was formed that the said circumstance fails to infer guilt on the part of the accused persons and rather it supported the view that the accused persons are innocent.

The learned Court also took into account the evidence of DW-2 and arrived at its conclusion that the deceased was not in the house of the accused persons immediately prior to the occurrence. According to the learned Court, due to the above discrepancy of the deceased not being in the house of the accused persons, took the view that the last seen theory cannot be applied against the accused persons.

Accordingly, learned Court was of the view that it is a case where two views appeared from the circumstances and therefore by applying the principle laid down by the Supreme Court in the case of State through Inspector of Police, AP -vs- K Narasimhachary, reported in (2005) 8 SCC 364 that when two views are possible, judgment of acquittal is to be justified by acquitting the accused appellant had acquitted the accused persons. To appreciate the aforesaid conclusion arrived at by the learned Additional Sessions Judge, we go through the evidence of PW-11 Musstt. Sukurjan Nessa.

PW-11 in her deposition stated that on the day of the occurrence, as night had fallen, they had retired to bed and it was raining. Around that time, accused Jasmat, Muktar and Ziaur called the deceased Almas and told him to accompany them. When PW-11 had asked the deceased not to go, the accused persons said that they would drop the deceased Almas back to his home later. It was stated that the deceased Almas was the grandson of PW-11. It was reiterated that the three accused persons had thus called the deceased away. It was also stated that it was past 10 o'clock at the relevant time.

Without delving further into the evidence that had been rendered by the prosecution, we take a look into the deposition of DW-2 based on whose evidence the learned Additional Sessions Judge arrived at a conclusion that the victim was not in the house of the accused persons immediately before the occurrence.

DW-2 in his deposition had stated that on the night preceding the day of the occurrence, he came by a boat upto the ghat and had gone to the shop of Khaleque to have some tea. The shop of Khaleque is situated at the Alopati Majer Char Bazar. DW-2 stated that it was about 8/8.30 pm and the deceased Almas was standing in front of the shop. He called him and asked from where DW-2 had come from. DW-2 replied he came in a boat and both of them should have tea together. DW-2 then stated that they had tea upto about 9 pm. Thereafter, as the wind started blowing, he asked Almas to go away and that he too should leave and accordingly both of them came out of the shop together. DW-2 thereafter went towards the boat and left for home. The next day, he came to learn that the deceased Almas had died.

We specifically take note of that DW-2 had tea with the deceased Almas from 8/8.30 pm upto 9 pm and thereafter both of them left each other where DW-2 went back to his boat. It is discernible from the evidence of DW-2 that he and the deceased had parted around 9 pm. Now again when we look into the evidence of PW-11, we find that around past 10 '0'clock in the night, the accused Jasmat, Muktar and Ziaur came and called the deceased Almas by saying that he should accompany them. Accordingly, Almas went with the accused persons but when he did not return home till late night, PW-11 woke up and came outside and heard people speaking in the house of her neighbour Abdul Aziz.

The last seen together theory of the accused Jasmat, Muktar and Ziaur would therefore start at a time past 10 o'clock when they came and called Almas and took him away with them. The last seen together theory cannot be related to the evidence of DW-2 which is specific that DW-2 and the deceased Almas had tea between 8/8.30 pm and 9 pm and thereafter both of them parted the company of each other. In this background, the conclusion of the learned Additional Sessions Judge in paragraph-52 of the Judgment dated 28.09.2015 is erroneous. The conclusion that the defense seemed to have discharged its burden by tendering the evidence of DW-2 to show that the deceased victim was not in the house of the persons immediately before the occurrence is also incorrect and cannot be based on the evidence of DW-2. In the circumstance, if we take into account the evidence of PW-11 that the accused Jasmat, Muktar and Ziaur came and called Almas and he accompanied them after past 10 o'clock in the night, we find it comes within the purview of last seen together theory . In the circumstance, it is for the said three accused persons to explain the situation as to what happened to the deceased Almas after he had accompanied them.

We also take note of that the said piece of evidence of PW-11 that the three accused persons came and called the deceased Almas and he went with them past 10 o'clock in the night remains unconfronted and unimpeached. Further we also take note of that the dead body of the deceased Almas was found in the house of accused Abdul Aziz and Abdul Aziz was sitting in the same room where the dead body was found. From that point of view also, we are of the view that Section 106 of the Evidence Act would be applicable in respect of the accused Abdul Aziz to explain as to how the dead body was found in his house.

A stand has been taken by Mr. MA Sheikh, learned counsel for the respondent accused persons that the evidence of PW-1 Md. Basiruddin in cross provides that the accused Abdul Aziz had told him that the deceased Almas had entered his house upon being injured by someone outside and after entering, he had died. But again the said statement of PW-1 in cross is not the evidence of PW-1 but it is merely as to what was told to him by the accused Abdul Aziz. Accordingly, in the absence of any such explanation by the accused Jasmat, Muktar and Ziaur as regards the last seen together theory and in the absence of any explanation by the accused Abdul Aziz under Section 106 of the Evidence Act, we are of the view that in the instant case, the evidence on record is short of being adequate to arrive at any view as to what had happened let alone forming two views out of which one is in favour of the accused and one in favour of the prosecution. In view of the inadequacy of the evidence, we are of the view that the matter requires to be remanded back for taking further evidence so as to make out the circumstances which resulted in the death of the decease complete.

Accordingly, we remand the matter back to the learned trial Court for taking further evidence and in doing so, the learned Court shall give adequate opportunity to the accused Jasmat, Muktar and Ziaur to render their evidence for discharging their burden under the last seen together theory and also to the accused Abdul Aziz to explain as to how the dead body of the deceased was found in his house. In doing so, learned Court shall also give an appropriate opportunity to both the parties to cross examine any of the witnesses that have already been examined and also to bring further witnesses for their examination-in-chief as well as their cross examination and for the purpose the parties may bring witnesses they would like to bring, provided otherwise admissible.

Upon conclusion of the evidence, further opportunity be given to the accused persons to make their stand under Section 313 Cr.P.C. and upon the evidence on record being complete, the learned trial Court shall pass a fresh order by giving a consideration to the whole of the evidence, including the evidence already on record. The Judgment and Order to be passed by the learned trial Court shall take precedence and prevail over the earlier Judgment and Order dated 28.09.2015 in Sessions Case No. 207 of 2011 passed by the learned Addl.Sessions Judge (FTC), Barpeta.

It is agreed that the parties would appear before the learned Sessions Judge, Barpeta on 31.08.2019.

Send back the LCR.

The criminal appeal stands disposed of in the above terms.