Sultana Begam vs State Of Tripura

S. Talapatra, J

[1] Heard Mr. A. Acharjee, learned counsel appearing for the appellant as well as Mr. S. Debnath, learned Addl. PP appearing state.

[2] The appellant was charged under Section 302 of the IPC along with one Rabeya Begam for causing murder of her husband, namely Amjad Ali on 06.09.2015 at about 1600 hours at East Batarashi in their dwelling hut. On denial of the charge as framed, the trial commenced and after completion of the trial, the appellant has been convicted and sentenced by the judgment and order dated 25.10.2015 delivered in ST/T-1/29/2016 by the Sessions Judge, North Tripura, Dharmanagar for committing the offence punishable under Section 302 of the IPC. But the co-accused was acquitted from the charge as against her the prosecution failed to establish the charge beyond reasonable doubt. As consequence of the said conviction, the appellant has been sentenced to suffer rigorous imprisonment for life [the remainder of her natural life] and to pay fine of Rs.10000/-, with default stipulation. The appellant has challenged the said judgment and order of conviction and sentence dated 25.10.2015 by filing this appeal under Section 374(2) of the Cr.P.C.

[3] Genesis of the case is rooted in a complaint filed by father of the deceased, Md. Hasmat Ali [PW-1]. By the complaint [Exbt.1], Hasmat Ali stated that he heard that his son Amjad Ali committed suicide by hanging by Gamcha [cotton towel] from the bamboo beam of the hut. On the basis of the said complaint [Exbt.1], initially a case of unnatural under Section 374 of the Cr.P.C was registered and taken up for inquiry. In the course of inquiry, the police officer namely, Partha Kr. Saha [PW-7] filed a sou-moto complaint to the Officer-in-Charge, Dharmanagar Police Station stating inter alia that 'during investigation IO made several correspondence as well as personnel persuasion to the concerned medical officers for early submission of PM report but they did not do it and lastly today on 04.12.2015 at 1209 Hrs. I have received PM report of the deceased. This refers DMN PS GDE No.17 of the date. On perusal of the PM report is found concerned MO submitted their opinion on the death of deceased as follows:

The cause of death was due to Asphyxia resulting from strangulation which is Homicidal in nature.'

Accordingly, a specific case being Dharmanagar P.S Case No.13 of 2015 under Section 302 read with Section 34 of the IPC was registered and taken up for investigation. As it appears from the records that having completed the investigation, the final police report chargesheeting the appellant and other co-accused was filed in the court and since the offence of murder is exclusively triable by the court of Sessions, the police papers were committed to the court of the Sessions Judge, North Tripura, Dharmangar. The Sessions Judge registered the said case as ST/T-1/29/2016 and having taking the cognizance of the offence from the police report, after due process, framed the charge under Section 302 of the IPC against the two accused persons, namely Sultana Begam and Rabeya Begam. Both the accused pleaded their innocence and claimed to be tried in accordance with law.

[4] The prosecution in order to substantiate the said charge has adduced as many as 13 witnesses including the team of the Doctors [PWs-4,5 & 6] and the investigating officers [PWs-7 & 13]. Apart from these witnesses, 11 documentary evidence including the inquest report [Exbt.2] and the postmortem examination report [Exbt.5] have been introduced. After the prosecution evidence was recorded the accused persons were examined separately under Section 313 of the Cr.P.C. where all of them reiterated their plea of innocence and stated that they have been falsely framed and there is no evidence against them. The trial judge after appreciating the evidence acquitted one of the accused persons, namely Rabeya Begam and convicted the appellant under Section 302 of the IPC with the consequential sentence as stated above.

[5] Mr. A. Acharjee, learned counsel appearing for the appellant has categorically stated that there is no evidence to convict the appellant inasmuch nobody has seen the appellant in the place of occurrence prior or after the occurrence to say the least at the time of occurrence. That apart, Mr. Acharjee, learned counsel has submitted that the assertion of the investigating officer as reproduced above is grossly beyond the record. Mr. Acharjee, learned counsel has referred to us the testimony of PW-4 where PW-4 in the cross-examination has stated categorically that 'in this case our view was that strangulation was made by rope. In the report we did not mention specifically that ligature mark was caused by rope. In this case no strangulation by finger was not established.' Mr. Acharjee, learned counsel has submitted that it is a mere typographical error that the word 'no' before strangulation has been typed. If that way it is not read, the said statement will be out of the context and inconsistent with the other statements and finally, it would turn meaningless. Mr. Acharjee, learned counsel has also questioned the integrity of the postmortem examination report based on the testimony of one of the investigation officers, namely Partha Kr. Saha [PW-7] who has stated in the trial in the manner as extracted below:

"I gave requisition on 08.09.2015 for PM report and thereafter, again I gave requisition on 15.11.2015. PM report was not forwarded to me by any dispatch letter. The PM report was dated 07.09.2015. Since PM report was not given to me even after requisitions, it is clear that the Medical Officers put their signatures in backdates in the PM repot. In the PM report Medical Officer opined that cause of death was due to Asphyxia resulting from strangulation and that was homicidal in nature. Accordingly I did not submit final report in respect of U/D case but lodged one FIR."

In the cross-examination, PW-7 has further stated that he received the postmortem examination report at about 10.15 hours on 04.12.2015, that is, almost after 3[three] months from the date of purported dispatch. Even the investigating officer, according to Mr. Acharjee, learned counsel, has failed to reflect the custody of the postmortem examination report during such long delay. However, PW-7 has denied that he received two postmortem examination reports. One was with the observation that the death was suicidal in nature and the other one was with the opinion that the death was homicidal in nature and he had also denied that he had intentionally concealed the subsequent postmortem examination report which was received on 04.12.2015 at about 12.09 hours. Even he has stated that Gamcha which he had seized was on some parts were cut. Mr. Acharjee, learned counsel has thus submitted that the investigation was carried out mala fide against the appellant. The appellant has stated during her examination under Section 313 of the Cr.P.C., that she was not at home when the said tragic incident took place. Mr. Acharjee, learned counsel has repeated that the statement of PW-7 in respect of the postmortem report has been partly supported by the subsequent investigating officer [PW-13]. PW-13 has admitted that he did not examine one eye witness whose identity was known to him during the investigation. His statement in the trial in this regard is material and accordingly, the same is reproduced hereunder:

"I admit that in the incident there was an eye witness namely Jasmine but I did not examine Jasmine. In this regard I mentioned that in the CD number 16 dated 23.07.2016 several times I tried to examine Jasmine @ Rajiya Begam but she was not willing to give any statements to me. I verified the PM register record on 25.07.2016. It is not a fact that by insisting Medical Officer I procured the PM report from the Medical Officers to filed chargesheet against the accused persons. It is not a fact that Exhibit-8 and Exhibit-9 are not the statements of Rahima Khatun and Sahana Khanam." [Emphasis added]

[6] Mr. S. Debnath, learned Addl. PP appearing for the state has submitted that the definite findings of the forensic report and the postmortem examination report cannot be brushed aside so lightly in the manner as espoused by the counsel for the appellant. But the case of the prosecution is well founded inasmuch as it is the case of the prosecution that the appellant being the wife of the deceased was inside the hut with the deceased at the relevant point of time and the dead body was found hanging in a hut and the postmortem doctors have categorically found that the death was due to 'strangulation'. True it is, that they did not specifically opine that the death took place by strangulation by fingers. Apart that, there was an injury on the persons of the deceased which indicates that the deceased was assaulted prior to hanging. According to Mr. Debnath, learned Addl. PP, no person saw the dead body hanging from the said beam. The complaint filed by PW-1 is on hearsay and PW-1 has admitted that position of fact. Mr. Debnath, learned Addl. PP has thereafter contended that the appellant took the plea of alibi in respect of her absence at the time of occurrence, but she has utterly failed to prove her alibi. Therefore, the said circumstance as has been taken as defence would stand against her in the chain of circumstances. Mr. Debnath, learned Addl. P.P. has further submitted that the apparent inconsistencies in certain insignificant matters cannot just debase the substratum of the prosecution case. The prosecution case is very clear, well-grounded and has been supported by the postmortem examination doctors, as well as and the other witnesses. Even some important witnesses turned hostile in the trial. In this regard, Mr. Debnath, learned Addl. P.P. has referred to the testimony of PW-4, where the postmortem doctor who led the examination has stated that during the postmortem they found lacerated wounds on the sole of the left foot which was measuring 3 cm X 2 cm in skin thickness and that injury was ante-mortem in nature. Besides that they found 'U' shaped ligature mark on the neck and that extended from the back side of the neck. The right end was found at the vertical line along with right mastoid and the left end of the ligature mark was located at the level of vertical line along with left ear-lobe. In the brain, they detected petechial hemorrhage and congestion on its surface. Rigormortis was found passed off. Post mortem straining was found on the neck. Thereafter, the postmortem doctor has categorically observed as under:

"At the back side of the neck there was no ligature mark. The ligature mark existed horizontal plane. There was fracture on thyroid cartilage. In our opinion we concluded that cause of death was due to asphyxia resulting from strangulation which was homicidal in nature and time of death at the time of our PM was within 24 hours. Since there was no ligature mark at the back side of the neck and ligature mark found at horizontal plane coupled with fracture of thyroid cartilage. We were definite that it is a case of homicidal in nature. The PM report was filed up by me in my own handwriting in consultation with other doctors and that bears my signatures and other two doctors. We issued the PM report on that very date on 07.09.2015." [Emphasis added]

[7] Mr. Debnath, learned Addl. PP has submitted that there cannot be any confusion about the nature of death whether it is homicidal or suicidal on the face of such definite finding by the expert who handled the dead body in the course of postmortem examination. Mr. Debnath, learned Addl. PP, in response to non-examination of the eye witness has submitted that sufficient explanation has beengiven by the investigating officer that despite his best efforts the so called eye witness could not be examined by the police.

[8] Having appreciated the submissions made by the learned counsel appearing for the parties we think it would be apposite to make a short survey of the evidence to determine the objections raised in the appeal.

PW-1, Md. Hasmat Ali is a hearsay witness and he did not divulge anything of utility. Even in the trial, he had only added some description relating to family composition. But he had witnessed the seizure of the wearing apparels of the deceased-which seizure was carried out on 07.09.2015. Even he was present when the inquest was carried out and he had signed on the inquest report [Exbt.2] as the witness. But in the cross-examination, he has stated that at the time of death, in the hut constructed by Amjad Ali, except the appellant and their child no other person used to live in that hut with his son. But at the fag end of the cross-examination, it has been stated that the hut of Sultana's parents situate in a nearby tilla, whereas his brother's hut is adjacent to that hut i.e. half mile away from the place of occurrence. After death of his son he was not reported by anyone who had appeared in the aftermath of the occurrence.

[9] PW-2, Md. Intaj Ali, the brother of the deceased has categorically stated that he heard that his brother committed suicide by 'hanging'. He has also stated that 'my brother had dispute with his wife since long and due to that dispute both myself and my father had to suffer detention.' But the police did not examine him immediately. The police examined him after many days. But he refused to believe that his brother had committed suicide.

[10] PW-3, Michir Khan has stated that he has heard that the deceased committed suicide by hanging but he did not see the deceased hanging. He saw the dead body lying on the bed. He was also the witness of inquest and he had signed on the inquest report [Exbt.2].

[11] PW-4, Dr. Chaitanya Reang whose deposition has already been described at the time of recording the submission of the learned counsel appearing for the parties.

PW-5, Dr. Sandipak Roy and PW-6, Dr. Apratim Debbarma were the part of the team of doctors who conducted the postmortem over the dead body of Amjad Ali. They have just dittoed the observation and the opinion of PW-4.

[12] PW-7, Sri Partha Kumar Saha is the investigating officer who carried out the inquiry under Section 174 of the Cr.P.C. and having received the postmortem examination report filed the complaint [Exbt.7] to the Officer-in-Charge of Dharmanagar Police Station which was registered as a specific case under Sections 302/34 of the IPC. Thus, the inquiry for the unnatural death came to an end.

[13] PW-8, Rahima Khanam denied to have stated to the police officer that Sultana and Rabeya jointly murdered 'Amjad uncle' and as such, she was declared hostile.

PW-9, Sahena Khanam followed the same suit and she was declared hostile.

Both PWs-8 & 9 were cross-examined by the prosecution but nothing could be brought out.

[14] PW-10, Sri Dilip Nath is a formal witness as the constable. He replicated the version of PW-7.

PW-11, Helal Uddin has stated that on the day of occurrence when he had completed his prayer [namaj] and came to his house, he heard that Amjad Ali committed suicide by hanging. He found the dead body of Amjad Ali on the bed and he asserted that he did not see Amjad Ali in hanging position.

[15] PW-12, Abdul Malik is a witness from the neighbourhood and has stated in the trial that after hearing the commotion in the house of Amjad and movement of people, he went there and found Amjad dead and his body was lying on the bed. After a long period of time, one day police called Sultana and Rabeya in the police station and they were arrested.

[16] PW-13, Sri Debojit Chatterjee, the subsequent investing officer has given a brief account how he had conducted the investigation, seized the material objects, such as wearing apparels etc., examined the witnesses, seized the documents relating to the case as was registered under Section 174 of the Cr.P.C. and collected the postmortem examination report and some documents relating to the marital status of the deceased and the appellant. During the course of investigation, the appellant and other co-accused were arrested and he has categorically admitted in the trial that none of the accused did abscond during that time. But he has stated that he had recorded the statements of Rahima Khanam [PW-8] and Sahena Khanam [PW-9] who turned hostile. But later on, he has admitted that the so called eye witness, Jasmine, the daughter of brother of the appellant could not be examined by him. According to the prosecution, Jasmine at the time of alleged occurrence had been disowned by PWs-8 & 9. Therefore, even to consider Jasmine as the reliable witness was far-off.

[17] We have also verified the inquest report [Exbt.2] but in the inquest report there is no mention of any injury on the toe as identified during the postmortem examination. There is no dispute regarding seizure but the entire dispute has been built up on the opinion of PWs-4,5 & 6 in respect of the cause of death. In the postmortem examination report [Exbt.5] in respect of the cause of death the opinion of the medical officers are as follows:

"The cause of death due to asphyxia resulting from strangulation which is homicidal in nature. There is „U‟ shape ligature mark found on the neck interiorly and laterally , the backside of the neck without ligature mark. The ligature mark lies at the horizontal plane, ante-mortem lacerated wound found on the left sole. Fracture of thyroid cartilage found."

[18] This is the entire evidence against the appellant as led by the prosecution. There is no witness in respect of the presence of the appellant at the time of occurrence. What has surfaced is that the appellant and the deceased with their child used to reside at that home and in the day light, the occurrence took place. The time of occurrence as estimated by the postmortem team is around 1.30 pm of the preceding day i.e. 06.09.2015. Thus, it is very difficult to accept that the appellant strangulated her well-built husband and he did not raise any alarm or resistance against her. The opinion of the postmortem doctors in the context cannot unfortunately be relied by this court inasmuch as in their cross-examination, they have categorically observed that the strangulation was made by rope. It cannot be accepted that a well built person can be strangulated by rope by another person unless that person is comparatively more powerful than that person. There is no evidence in this regard. The prosecution case has been built up on surmise and solely on the basis of postmortem examination report which was in whose custody for long 3[three] months was unknown to the court, even to the investigation officer. In such circumstances, according to our considered view that the benefit must go to the accused and accordingly, we hold that the charge of committing murder against the appellant has not been established beyond reasonable doubt and accordingly, the appellant is acquitted form the charge.

[19] Having observed thus, the impugned judgment and order stand set aside. The appellant be released forthwith, if not wanted in any other case.

In the result, this appeal stands allowed. Send down the LCRs forthwith.