Calcutta High Court Jahed Alias Jiad Shah-vs-State on 5 July, 1995
Equivalent citations:1995 CriLJ 3451
Author: R Bhattacharyya
Bench: R Bhattacharyya, A K Chakravarty
R. Bhattacharyya, J.
1. This criminal appeal is directed against an order of conviction and sentence passed by the learned Additional Sessions Judge, Contai, District Midnapur imposing imprisonment for life for having committed an offence under Section 302 of the Indian Penal Code. He is also convicted for having committed another of fence under Section 498A of the IPC and to pay a fine of Rs. 2,000/-, in default, SI for six months. Both the sentences are to run concurrently.
2. To follow the points raised in the appeal, a brief synopsis of the case is essential, the object being to unfold the narrative.
3. The preamble of the prosecution reveals, as towering from the materials on record, that the de facto complainant Sk. Ershad PW 2 lodged a com plaint with the officer- in- charge of Ramnagar PS on 18-9-89 about the incident, following which, an FIR was immediately drawn up by the S .I. Ranjit Banerjeeon 27-9-89, PWI was at the material point of time attached to that PS.
4. The law was immediately set into motion and the police, in view of the FIR proceeded with the investigation of the case against the eight accused persons. But, however, during the currency of the proceedings, one of the accused Reja Shah, since breathed his last, as such, the case against him was filed. But, the case proceeded against the seven other accused persons.
5. Now to the facts: The daughter of Sk. Ershad Anjuman was given in marriage to Jiad Shah, the accused, who was the son of Reaj Shah of Kandi, shortly before four years of the lodgement of the complaint. A son was born of the wedlock who at the material point of time was yet to be out of the napkin, (one and half years of age).
6. His son-in-law Jiad picked up an intimacy with an woman of the neighborhood which projected a shadow on marital life. The married life became gloomy which shoot the trouble in the air between the accused and his wife, one of the victims of this case. Anjuman became a destitute who was subjected to physical and mental cruelty. The members of the family of her husband including the domesticated son-in-law took an active role in perpetrating torture on Anjuman.
7. The first information report disclosed that on the preceding day of the filing of the FIR, a heinous crime was committed by the accused persons where his daughter Anjuman was not only killed, but also her son met the similar fate with that of his mother. The enough stain of blood was found. The father of Anjuman while peeping through the window saw it as the door was locked from outside. None of the inmates of the house was present when the diabolical murder caught the attention of Ershad. The police, in course of investigation, collected the materials against the accused persons and submitted charge-sheet against them under Section 498A/302 of the IPC. The case was put up for trial before the learned SDJM, who, on perusal of the record, came to the conclusion that the case is exclusively triable by the Court of Sessions, for which, he committed the case and the accused to the Court of Sessions to stand trial.
8. The learned Additional Sessions Judge on consideration of materials and upon hearing the parties at length framed the chages against the ac cused persons under Sections 498A/302/34 of the IPC.
9. The charges were read over and explained to the accused, who pleaded not guilty and claimed to be tried. The prosecution to ground the charges examined as many as eleven witnesses and the defence to stall the charges had examined five witnesses.
10. The defence of the case as can be gathered from the tangible materials on record is that they are innocent of the charges framed against them, as the offences were committed during their absence from home.
11. The learned Court upon consideration of the materials held the accused guilty of the offences committed under Sections 302 and 498A of the IPC and passed the above sentences acquitting the six other accused persons. The accused, since aggrieved by the order of conviction and sentence, has approached this Court for reversal of the order of conviction and sentence.
12. In adjudging the guilt of the accused persons or otherwise, there are certain admitted facts which must surface the judgment. I catalogue below, some of them which are merely illustrative, but not exhaustive.
13. It is admitted on all hands that the victim was the married wife of the appellant now before us. It is also admitted that the child of barely one and half years of age was also a victim of the gruesome murder.
14. In proceeding further, it is patent that there is no eye-witness in this case. The entire case of the prosecution rests on the circumstantial evidence. None of the witnesses examined so far by the prosecution to establish the charge have given any evidence about the direct involvement of the accused persons in perpetrating the crime. It is also glaring from the record that the State did not prefer any appeal in the background of the other six accused persons being acquitted of or exonerated from the charges. Therefore, it is a straight appeal by the appellant himself for being convicted under Sections 302/498A/34 of the IPC.
15. Apart from determining the legality or other wise of the conviction, the adjudication of the factual premises of the case is a very important factor by which the Court, upon examination of the materials, if could come to the conclusion.
16. In the background of the above, I now proceed to examine the case. It goes without saying that the deaths of Anjuman, the wife of the appellant and the child Khokan have been proved to the hilt. But, to consider the evidence, the post-mortem re port is an invaluable document which stands to have been supported by the Doctor PW5 B. K. Nandu. Apart from the proof of death, there are certain other materials which require to be considered by the Court not in isolation, but, in conjunction with other tangible materials on record to gather assurance of the pre-death torture and the murder.
17. I am quite aware of the situation, that the prosecution has hauled up the accused with an offence committed by them under Section 498A of the IPC blessed by Section 34. In adjudging the case of the prosecution, the discussion of the evidence of the PW’s becomes necessary for appreciation, for which, I must not lay any emphasis on their serial number. Therefore, I take the freedom of discussing the evidence of the witnesses as and when necessary regardless of their serial number. Thus, I take the evidence of PW5 Dr. B. K. Nanda who says, on that date, at 4 p.m. I held post-mortem examination on the dead body of Khokan Shah, a male child, aged two years of Kalindi in connection with Ramnagar P.S. Case No. 44/89 dated 18-9-89 and identified by constable 988 Pradhan Soren. On such examination, I found the following :-
1) Some petichla haemorrhage on the right side of the frontoparaietal region of head.
2) Nazal bleeding present.
3) Haematoma like black area on the right side of the head.
4) Superficial ligature mark, very faint in front of the throat.
5) Spotted petichial haemorrhage on the scalp.
6) Opinion – Death in my opinion was due to shock and haemorrhage as a result of the respiratory failure either due to throttling or by striking on the hard substance. Death was ante-mortem and homicidal in character.
18. This is that report, filled in my hand and signed by me, Ext. 3. Injuries Nos. 1 and 5 may be possible if hit by any hard substance including lathi or if the head of the body was thrown against some hard substance. Injury No. 3 may also be caused by some hard substance. By throttling I did not mean hanging.
19. Near about the same time on the same date I also held post-mortem examination of one Anjuman Bibi, 25 years a Muslim female of Kalindi in connection with the same Ramnagar P.S. case and also identified by the same constable. On such examintion, I found the following :-
1) One bruise on the back-right side, 2 inch x 1 inch x half inch – of black colour.
2) Bleeding, semi sanguinous, was Still coming of the nostrails.
3) Greenish patch like colouration covering the whole of the abdomen.
4) Haematoma on the forehead.
5) Superficial ligature mark in front of the throat.
6) Swelling of face and neck.
7) Opinion – Death, in my opinion, was due to shock and cardiorespiratory failure as a result of severely beating by bamboo, ante-mortem and homicidal in nature. This is the report filled in and signed by me, Ext. 3/1.
20. The above deaths might have occurred 36 to 42 hours before the examination.
21. From the above evidence, it is notorious that the Doctor found on the body of Anjuman as many as six injuries evidencing the assault committed on her. Upon examination of two bodies, namely, Khokan and Anjuman, the opinion of death is different in respect of the different bodies. About the death of Khokan, PW15 has opined that the death was due to shock and haemorrhage as a result of the respiratory failure either due to throttling or by striking on the hard substance. Death was ante-mortem and homicidal.
22. The death of Anjuman, according to Doctor, was due to shock and cardiorespiratory failure, as a result of severely beating by bamboo ante-mortem and homicidal in nature. But the injuries found by the Doctor on the body of Anjuman does not prove that she was subjected to severe beating. Had there been severe beating by bamboo, it must have been reflected on the body of Anjuman. The Doctorfound one bruise on the back, right side 2 inch x 1 inch x 1/2 inch of black colour. There was haematoma on the forehead fowling on the face, neck and superficial ligature mark in front of the throat. The above injuries for a moment do not suggest any infliction of assault by bamboo. The death of Khokan as opined by the Doctor was due to throttling or by striking on hard substance. In any event, he explained in his evidence that throttling according to him did not mean “hanging”. It has been disputed by the learned Counsel for the appellant for the evidence disclosed about the mode and manner of death.
23. The learned Public Prosecutor for the State to ground the charges under Sections 498A and 302 has laborious argued that the injuries reflected in the post-mortem report as proved by PW5 Doctor Nanda goes a long way to show that Anjuman was brutally assaulted and the case squarely and fairly verges on Section 302 in addition to an offence committed under Section 498A of the IPC.
24. The evidence of the Doctor repels the case of throttling as it has been elicited during his evidence that he did not find any “nail mark or impression of finger on the neck of Anjuman and Khokan”. The story of death by throttling, therefore, evaporates and becomes weak, although the Doctor clarified in his cross-examination “such impression of nail or finger may or may not be available in case of throttling”. The evidence of the Doctor is at variance when he clarified that throttling did not mean “hanging”.
25. Now, I stop here for a moment and advert to discuss the offence under Section 498A of the IPC.
26. The profile of the prosecution case, as adumberated by the witnesses, is about the pre-death torture inflicted by the accused persons on Anjuman. The marital climate was extremely unhappy about which PW1 is very much vocal and to mitigate or to put an end to the wear and tear of the marital life a salish was held. But, this salish does not find support from any evidence either overt and covert.
27. PW1 has given publicity in his evidence that the salish was attended by Sk. Alim, Sajan Md., Sk. Alauddin, Sk. Mosha, Siraj Shah, besides PW1. None of the persons named above except Salim Shah, and PW6 Abdul have been examined by the prosecution. PW3 is meticulously silent about the salish before the death of Anjuman, though he was declared hostile. PW6 was not named by PW1.
28. Over and above, the FIR and complaint respectively exhibits 1/3 and 1/1 maintained silence about the salish. The complaint only bore the allega tion of torture on Anjuman. Besides, none of the neighbours namely, Ferdot Shah, Maimud Shah, Sanwar Shah, Rafser Shah, Revroj Shah, Manna Shah, Hannan Shah, Kalimuddin Shah, Sk. Bhiku and Besharat were examined by the prosecution living in and around the house of Reaj Shah, who is none else than the father of the appellant to substan tiate the charge of torture and infliction of assault. In the background of the above evidence, a grave doubt hangs on the case of torture and assault on Anjuman during the marital life.
29. The prosecution has made an elaborate argument that the father being a foreigner to the village cannot have any witness as to torture on Anjuman, for which, a salish was held. But, the FIR and the complaint completely throw out the case of salish advanced by the prosecution as already indicated above.
30. The bickerings and quarrels cannot be equated with assault. PW9 Sarjan Md. though spoke of salish yet his evidence worn out thin by the reason of his making two different statements, one before; the police and the other before the Court.
31. In the light of the above, there could be no reason to convict the present appellant, alone, since all other accused persons were acquitted in regard to the offence alleged to have been committed under Section 498A of the IPC. The law is well settled that some of the accused persons, if acquitted from a particular offence, the other accused persons cannot be fixed by that evidence unless the materials show that such others are liable under the law. The charge under Section 498A fails, accordingly.
32. Now, I turn to examine the offence under Section 302 of the IPC stated to have been committed by the accused persons, although six accused persons were acquitted for having committed the murder of Anjuman and the child. In the process of evaluating and appreciating the evidence on that score, I will discuss the testimonies in order to adjudge the guilt of the appellant on two counts. The first of which is as to whether the accused could be convicted in isolation of the other accused persons already acquitted and whether the evidence is conclusive to hold the appellant guilty of the offence independent of the evidence adduced against the other accused persons.
33. In making survey of the entire evidence on record, the venue of a criminal case is absolutely necessary as it becomes the yardstick for appreciation of the entire evidence. Therefore, I turn to the evidence on record. Before adverting to discuss that aspect of the matter, I leave on record that it is not the case of prosecution that both Reaj, the father-in-law of Anjuman and the appellant used to put up in the same room. PW1 has given a testimony that he found the “Southern Room” of the accused Jiad locked from outside. That Ghar is a mud built one with only one door on the West and two windows one on the East and the other on the South. Though the door was locked from outside the windows were open. Looking through the Eastern window, 1 found the dead body of Anjuman and Khokan on mud floor of that room”.
34. The evidence extracted above suggests that he found the bodies in the room of Jiad, who is the son-in-law of this witness. But, PW3, though hostile does not corroborate him on that count. He has given a different testimony that he found the dead bodies’ hanging from the beam of the room of the accused Reaj Shah. Even PW8 Pradhan Soren, though a police witness was constrained to admit in the face of cross-examination the following, “It is not a fact that I do not see the dead bodies inside the room of accused Riaj”. He was not declared hostile by the prosecution. There is no material on record that he was actuated by any motive and he took an oblique view of the incident.
35. In the background, the witnesses when give two different testimonies about their seeing the dead bodies in different room, it is difficult to fix the appellant alone with the offence of murder as the prosecution did not make out any case that the offence was committed elsewhere and, thereafter, the bodies were kept in the room of either of the accused. The inquest report is at variance with the evidence. The above evidence has cast a serious reflection on the case, in the background of conviction, in particular, when no appeal against the order of acquittal had been preferred by the State.
36. I am not unmindful or unaware of the position of law that the case of prosecution must not fail for the remissness of the Investigating Officer, if the case of the prosecution gathers assurance from other convincing materials on record to the satisfaction of the court.
37. Returning to examine the case of the prosecution about the diabolical murder of Anjuman and her son Khokan, it is apposite to mention, though indicated earlier that there is no direct evidence on record to connect any of the accused persons with the crime.
38. In adjudicating upon the rival contentions of the parties, the evidence of the Doctor PW5, B. K. Nanda may afford some clue as to the time of deaths. He is not reticent, but vocal in his evidence, when says “the above deaths might have occurred 36 to 42 hours before the examination”. The post-mortems on the dead bodies were held on 19-9-89 at 4 p.m. If an arithmetical calculation is made, the incident occurred in between 10 p.m. of 17-8-89 and 4 p.m. of 18-9-89.
39. PW8 Faruk Ali, the Gram Pradhan has given a currency in his evidence that Eshadul and Dilu Shah came to his house and reported to him about the deaths of the wife of Jiad Shah and her little son hanging in the room, who asked him to take appropriate steps in the matter. Jiad Shah, the appellant was not present with them there at 11.30 a.m.
40. PW8 Faruk Shah in the opening lines of his cross-examination admitted that Saleman Ali was also present there. Neither Saleman Ali nor PW8 was examined by the investigating agency and the absence of explanation of their non-examination by the investigating agency is conspicuous affecting the substratum of the prosecution case. I am tempted to refer to the evidence PW9 Sharjan, who met Jiad and Dilu on 18-9-89 at 10.30 a.m., which is an improvement of the prosecution case as he held back that precious weighty fact when he was examined by the police The overwhelming contradiction receives a burial to the claim of the prosecution that accused Jiad and Dilu or Ishad met PW8 and PW9 on 18-9- 89. Falsehoods cannot dovetail the fact.
41. I am not unmindful that the prosecution to assure the presence of the accused in the village is sought to have capitalised the evidence of PW8 and PW9 in vain. The non-production of the written information of which PW8 was the author had not seen the light of the day during the trial. The above tangible circumstances, when forged, spelt out a disastrous consequences for the prosecution case. It is difficult to Rule out the claim of the defence Counsel that PW8 is a stock witness, who came to the Court to serve the cause of the prosecution.
42. To salvage the impassee, the prosecution attempted to have made a bold venture that the falsity of the Alibi defence of the accused assures the case of the prosecution true.
43. But there’s many a slip twixt the cup and the lip. The failure of the defence case cannot provide any oxygen to the case of the prosecution. The prosecution must stand on his own case, which cannot excavate the falsity of the defence case. The materials of the prosecution case when sufficient to prove the case of it, the alibi defence may lend assurance to the case of the prosecution. But, it is not the law that the alibi defence, since not brought to book, the prosecution case holds the ground regard less of the infirmities of the case of the prosecution, in particular, when the evidence of the prosecution fails much below the line of quality requiring a higher standard of proof in a case of this nature.
44. I have rummaged the whole record and in spite of my best endeavour, I did not find any material on the strength of which the conviction could be based, rather, the combing operation of evidence by myself has proved the unreality of the prosecution case.
45. The evidence of PW 10 even if suffers from remissness, it is trite law that a conviction could be grounded if the case gathers assurance from the convincing evidence.
46. Further, the examination of the appellant by the learned Court below, does not refer to the incriminating circumstances. The circumstances which are heresay and not protected by law became the foundation of the examination of the accused, which has resulted in miscarriage of justice. The learned Court below while appreciating the evidence should have taken into consideration, the incriminating circumstances, I point out one circumstance though pointed out earlier that the accused was not questioned that he was present in the village on the day of occurrence. There are other circumstances about which discussion in detail is unwarranted in the background of the materials disclosed not unerringly pointing to the guilt of the accused.
47. The evidence of the witnesses is wholly unreliable, if we taste the bottom of it. Only we know the nature of the pudding when it is eaten. Therefore, judged by the materials on record, I cannot but hold that there is no bridge in the evidence of one witness and the other making innumerable holes which are difficult to plug.
48. The witnesses examined in this case are not reliable. The witnesses examined and the evidence adduced for the offences committed under Sections 498A and 302 of the IPC are unworthy of credit. They all melted in thin air without any scope of chance of its re-appearance in the firmament of reality to fix the accused with the crime.
49. The case of the prosecution when bristled with illegalities, the failure of the alibi defence adds no weight to the prosecution case. However, the prosecution may say, it has given a false colouring to the occurrence. The evidence of the witnesses does not beacon any light of proof. It lost its origin during locpmation and its recharging by forceful submission could not animate the claim of the prosecution. The enchanting song of the prosecution provided no melody excepting the sad tone which left a deep scar beyond repair.
50. I cannot agree with any of the findings and reasons of the learned Court below. The appreciation of the evidence made by the learned Court below is detracted from the surrounding circum stances and the conviction is based upon phlegmatic testimonies on record. It is well settled that the conviction on circumstantial evidence should only be based, if the chain of circumstances adduced by the prosecution is complete; the chain only points to the inference of the guilt of the accused, and that chain is wholly incompatible with the inference of the innocence of the accused. I cannot but regret that the evidence and circumstances indicated above at the most would greatly create a suspicion against the accused. But suspicion, however, strong may be cannot take the place of proof. The ratio decidendi in: Sarwan Singh, Rattan Singh v. State of Punjab, , may be taken aid of.
51. In the result, the appeal succeeds and the order of conviction and sentence is set aside. The accused be released forthwith, unless wanted in connection with any other case.
Asok Kumar Chakravarty, J.
52. I have gone through the judgment of my learned brother. I have very few words to write as the flow of my reasoning is common with my learned brother. We may sprout from two different streams dwelling on our views, but when we flow, the stream is only one. If I say more, it will be an academic exercise. As a Judge, I will not be a slave of prolix.
53. The judgment on perusal reveals savage outburst of brutality in the annals of criminal justice or criminal jurisprudence, for which, words are insufficient to describe them. I was deeply moved for the murder of Anjuman and Khokan when the entire village caught up in deep slumber. There was none but the nature which turned to be the lone witness that only know of the authorship of the crime. Possibly, nature cried in silence, in particular, deeply mourned when it became the witness of the gruesome murder.
54. Our sympathy may greatly weigh with the deceased and her parents, but as a Judge, neither the sympathy nor the moral conviction can be allowed to be blown off at the feet of legal conviction.
55. The law courts have handed down justice more frequent than one about the observance of procedural law, the infraction of which often leads to colossal catastrophe.
56. The learned trial Court while adverting to the case of the rival parties blissfully remained silent about the implication, meaning and import of Section 162, Cr. P.C. It is true that all omissions are not contradictions that may cast not only a serious, but also a gloomy reflection on the prosecution. Indeed, omissions which are important and invaluable, that eat into the vital of the prosecution case, the court cannot merely gaze at them. The duty of the court is to appraise them. Credibility of the witness is the main strand or the main stay of the prosecution case on the edifice of which, the case may crown success.
57. I am not unmindful that no explanation has been furnished by the prosecution about the non examination of Faruk Ali, PW8, by the police. His examination without any statement recorded by the investigating agency under Section 161 has un doubtedly spelt a monstrous consequence about which, the learned trial Court never dealt with that aspect of the matter. The learned trial Court took a cavalier approach of the case and straightway passed an order of the conviction and sentence, by resorting to a clean jacket formula.
58. I am not unmindful that things sweet to taste prove indigestion sour. Apparent is not the real. The court should be the votary of truth and proof.
59. Besides, the importance of Section 162 has cast a serious consequence that was not thought of by the learned trial Judge while he not only made the evaluation but also appraisement of the evidence which included amongst others the surrounding circumstances. The judgment is meticulously silent about the time and circumstances when the investigation was set into motion. The question as to what stage, the investigation commences has to be considered and examined on the facts of each case, specially, when the information of cognizable of fence has been lodged with the P.S. as in the instant case.
60. It is glaring from the evidence that PW8 Faruk sent a written message to the Police Station intimating the unnatural death of Anjuman and Khokan. This aspect of the matter, the learned trial Court lost sight of, particularly, in the background of evidence by PW8 and 9 that some of the accused on the morning following the incident met them about which my learned brother is not miser to spend ink on them. This itself is the earlier blush to the case of the prosecution.
61. In view of Section 3 of the Evidence Act, absolute standard of proof is never insisted on by the court. But, in a criminal trial, the degree of proof is stricter than what is required in a civil proceedings. In a criminal trial, however, intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. State of West Bengal v. Orilal Jaiswal, 1994 SCC (Cri) 107 : (1994 Cri LJ 2104).
62. The wisdom may be borrowed from the law laid down by the Apex Court. The learned trial Court completely ignored the provisions of law. Possibly the learned Counsels did not invite his attention to Section 3 of the Evidence Act, the result being that the justice has now become the first casualty. It is really surprising that the learned trial Court shrugged off the omission and toned the evidence with conjectures and surmises, for which, this over whelming confusion. I cannot but hold that charge has been foisted against the accused by the prosecution witnesses with due deliberation for the death occurred in the residence of the accused. But, a court of law cannot disregard the proof and to be swayed away by imaginations. I say no more as it will burden the judgment with unnecessary details.
63. For the foregoing reasonings, I hold that the accused is entitled to benefit of doubt and the order of conviction and sentence is accordingly set aside setting forth the release of the accused at once unless wanted in connection with any other case.