Criminal Appeal (DB) No 302 of 1989 =========================================================== Against the judgment and order of conviction dated 28.06.1989 passed by Shri H K Prasad, Sessions Judge, Gopalganj in Sessions Trial No 37 of 1986. 1 Islam Jilani, son of Md Sagez, 2 Gulam Hassan, 3 Gulam Safdar, sons of Islam Jilani 4 Jarina Pravin, wife of Gulam Sarvar, and 5 Bibi Rasulan, wife of Islam Jilani, residents of village – Jangalia, P S – Gopalganj, District - Gopalganj .... .... Appellant/s Versus State of Bihar .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : M/s Kanhaiya Pd Singh, Aminuddin Ahmad Khan & Raj Dular Sah, Advocates For the Respondent/s : Miss Shashi Bala Verma, APP =========================================================== CORAM: HONOURABLE MR JUSTICE NAVANITI PRASAD SINGH and HONOURABLE MR JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT (Per: HONOURABLE MR JUSTICE ASHWANI KUMAR SINGH) 1 Today, a petition has been filed in the Court stating therein that appellant No 1 Islam Jilani and appellant No 5 Bibi Rasulan have already died during pendency of this appeal. Let it be kept on record. We need not pass any order in this petition in view of the order we are going to pass in this case. 2 The present appeal is directed against the judgment and order dated 28.06.1989 passed by Shri H K Prasad, the learned Sessions Judge, Gopalganj in Sessions Trial No 37 of 1986 convicting the appellants under Sections 302/34 and 201 of Indian Penal Code (IPC) and sentencing them to undergo rigorous imprisonment for life and rigorous imprisonment for two years and to pay fine of Rs 2,000/- each and Rs 1,000/- each respectively for each of the sentences with a Patna High Court CR. APP (DB) No.302 of 1989 dt.15-11-2011 2 default clause which stipulates that failure to pay fine would make them liable to imprisonment for a further period of 3 years and 6 months respectively for each of the offence. 3 The prosecution case is based on written report of one Jayees Kumar (PW 12) submitted to the Officer-in-charge, Gopalganj Police Station on 13.01.1986 at 8 pm stating therein that a day before in the evening at about 6.30 pm, he heard rumour that in Mohalla – Jangalia, daughter-in-law of appellant No 1 Islam Jilani was probably killed and effort was being made to bury the dead body stealthily. Station Diary Entry being Station Diary Entry No 375 dated 13.01.1986 was made and in order to verify the truth of the rumour, the informant proceeded to the place of occurrence alongwith armed policy party. When they reached to the house of the appellant, appellant No 1 Islam Jilani, appellant No 2 Gulam Hasan and appellant No 3 Gulam Safdar were found present near the door. They accepted the death of daughter-in-law of appellant No 1 due to ailment. When a request was made to show the dead body, appellant No 1 told that since daughters-in-law live in Zanana Qita, he does not go there. When the informant became a bit firm, appellant No 1 asked his two sons, appellants No 2 and 3 to show the dead body. Then they reached near the dead body which was found wrapped in a shroud lying in verandah on the upper storey of the house. On unwrapping the shroud, the dead body of Asma Khatoon, on which there was bleeding injury on neck, was found. The dead body was cleansed. Blood was also found on plung and the floor which was also cleansed. On enquiry, the accused persons gave unsatisfactory reply. They could not explain the reasons for not informing regarding the incident to the Police Station. The informant suspected that it was a case of murder committed by the appellants who all were found present inside the house. 4 On the basis of the written statement of the informant (PW 12), a first Patna High Court CR. APP (DB) No.302 of 1989 dt.15-11-2011 3 information report was registered on the same day that is on 13.01.1986 at 9 pm under Sections 302, 201 read with 34, IPC. Since the informant had already took up the investigation, the Officer-in-charge entrusted the investigation to him. The informant conducted the investigation and, on conclusion of investigation, submitted chargesheet in the case under Sections 302, 201 read with 34, IPC against all the five named accused persons. The learned Magistrate, thereafter, took cognizance of the offence and since the offences were triable by the Court of Session, the case was committed to the Court of Session. The trial Court framed charges against the appellants under Section 302 read with 34 and 201 of IPC to which they did not plead guilty and claimed to be tried. In course of trial, the prosecution has examined altogether 13 witnesses. PW 1 Benchu Mian is a witness to the inquest, PW 2 Md Khalil Ansari is father of the deceased, PW 3 Shaukat Ali is related as uncle of the deceased, PW 4 Md Akula has been declared hostile, PW 5 Md Noor Alam Ansari is also a witness to inquest and some seizures made in course of investigation, PW 6 Manendra Kumar is a tenant of the house of the appellant, PW 7 Sheikh Sahaban has been declared hostile by the prosecution, PW 8 Raghubir Prasad is photographer whose service was taken by the Investigating Officer for taking photograph of the scene of occurrence as well as photograph of the deceased from different angles, PW 9 Amirul Hasan has also been declared hostile by the prosecution, PW 10 Md Ali is a formal witness who has testified his signature on the seizure list made in course of investigation by the Investigating Officer, PW 11 Dr B K Agrawal is one of the doctors who conducted the post mortem examination on the dead body of the deceased, PW 12 Jayees Kumar is the informant as well as the Investigating Officer of the present case. PW 13 Ambika Rai is a Constable and is a formal witness. 5 As noted above, PW 1 Benchu Mian has proved his signatures on carbon Patna High Court CR. APP (DB) No.302 of 1989 dt.15-11-2011 4 copy of the inquest report which is marked as Exhibit-1. He has also proved the signature of Akula, another seizure list witness on inquest report which has been marked Exhibit-1/1. He has been cross-examined by the defence. He has stated in his cross-examination that he is a resident of a place which is 22 to 23 miles away from the place of occurrence. He has further admitted in cross-examination that when he reached at the place of occurrence on the date of occurrence itself, more than 50 persons of the locality were present. He further admits that it was for the first day he had went to that village and even after that he never visited the place of occurrence village. He went there on the request of the Investigating Officer. It is worthy to note it here that he admits in cross-examination that by the time when he reached, his name and address were already written on the seizure list and part of the seizure was prepared in his presence. 6 PW 2 Md Khalil Ansari admittedly was not present at the place of occurrence. He is a resident of different village. He resides in Assam. He has stated that he had married his daughter to Gulam Md, fourth son of appellant No 1 about a year ago. She lived in her sasural for six months. Thereafter, she came back. She told that since PW 2 had promised to pay Rs 18,000/- but had paid Rs 10,000/- only and, thus, she demanded Rs 8,000/- more. PW 2 has stated in his examination-in-chief that payment of Rs 10,000/- was first made by cheque to appellant No 1. Appellant No 1 returned the cheque and, thereafter, the amount was paid in cash. He paid Rs 8,000/- to Asma Khatoon by cheque. He instructed his daughter to encash the amount of the bearer cheque and give it to her husband only if other formalities of sending him to Arab are completed. The cheque of Rs 8,000/- was never encashed. He went to Assam on 29.12.1985. He was informed by a co-villager Banaras Raut (not examined) regarding murder of Asma Khatoon. Upon knowledge of killing of his daughter, he came back to his village home. On Patna High Court CR. APP (DB) No.302 of 1989 dt.15-11-2011 5 enquiry from family members, he came to know that brother-in-law (Devar) of Asma Khatoon took her to sasural on pretext of ailment of her mother-in-law. They went on rickshaw. The so-called Devar had told that she would come back on the same day and, thus, the richshaw puller was paid Rs 20/- to go to the matrimonial home of the deceased and come back to her parental village. The rickshaw puller has not been examined in course of trial. 7 PW 2 states that these facts he could come to know from his father and younger daughter Nazia Khatoon. It is worthy to note here that neither father of PW 2 nor the younger daughter Nazia Khatoon has been examined in Court. It was disclosed to him that the alleged Devar had come on bicycle and had left his bicycle which was still in his house. The bicycle was neither seized in course of investigation nor produced as a material exhibit in Court. He further states in examination-in-chief that even earlier, the Devar had come to call Asma Khatoon on pretext of ailment of her mother-in-law but two boys who went there found that the mother-in-law of the deceased was not ill. It is curious to note that neither the identity of the two boys has been disclosed nor they have been examined in Court. He then states that his daughter did not return after she went to her sasural. The mother-in-law was not ill and this fact was disclosed to him by PW 3 Shaukat Ali. PW 2, thus, while concluding his examination-in-chief, casts a suspicion that his daughter Asma Khatoon was killed for the money paid to her. This witness was cross-examined in course of trial. He admits in cross-examination that he did not state to the police that his daughter was killed for the money given to her by bearer cheque. He also admits that he had not stated before police that PW 3 Shaukat Ali had disclosed him that the mother-in-law of deceased was not ill. In cross- examination, he further admits that the deceased had received her basic education at Shilong. She was fluent in Hindi, English, Asamese and Arabic languages. She Patna High Court CR. APP (DB) No.302 of 1989 dt.15-11-2011 6 was well educated. Rs 10,000/- was paid to appellant No 1 because his son-in-law was not present on that day. It was the son-in-law who had demanded money in order to go to Arab for job. The cheque was given to son-in-law and it was returned by him and not appellant No 1 and it was the son-in-law who requested to make payment in cash. He further admits that the son-in-law, after receiving Rs 10,000/- in cash, went to Delhi in order to complete formalities to go to Arab. He further admits in cross-examination that his son-in-law was, perhaps, Middle pass. The relationship was cordial. He had no objection in sending his daughter to her sasural. He admits that he is a contractor. He owns trucks, bus, car and a big house in Assam. His children knew driving. Appellants are agriculturists. They live in village. When a suggestion was given to him in cross-examination that he has deposed because he wants his money given to his son-in-law or spent in marriage back, he did not deny this fact in toto. He says that the money was demanded by some other persons from the appellants and he was assured that he would get back the money. 8 When we look to the evidence of PW 3 Shaukat Ali, he says that the deceased was taken to her sasural on the pretext of the mother-in-law suffering from some ailment. In examination-in-chief, he states that there was no difference or animosity between the family of the deceased and the family of the appellants. He further states that he came to know regarding the occurrence one day after the occurrence took place. He went to the house of the appellants. He found that the deceased was wrapped in a shroud and there was a bleeding injury over her neck. In cross-examination, he has stated that earlier Asma Khatoon, the deceased was studying in Assam. She had discontinued her studies. Her other brothers and sisters were still studying in Assam. The deceased was sent back to her village home 2-3 years back and after she came to her village home, a hectic search was Patna High Court CR. APP (DB) No.302 of 1989 dt.15-11-2011 7 made to find a suitable match for her. A suggestion has been given to PWs 2 and 3 to which they denied that since marriage of the deceased was not performed as per her choice, she had committed suicide. 9 PW 4 Md Akula is also an inquest witness. He admits his signatures on Exhibit-1/1 but says that the same was taken by the Investigating Officer at his residence. At this stage, he has been declared hostile by the prosecution as he did not support the prosecution case. 10 PW 5 Md Noor Alam is an Advocate of Patna High Court. He states that he has contested election twice. He was known to the Investigating Officer from before as he was posted earlier in Barauli Police Station from where he hails. He proved his signature on seizure list of certain cloths which were seized from the place of occurrence by the Investigating Officer and the same has been marked as Exhibit-1/2. He has also proved his signature on seizure list of blood found on a piece of stone which is marked Exhibit-1/3. It is curious to note here that in his examination-in-chief itself, he said that neither the stone was seized nor the seizure list was prepared in his presence. He has also proved his signature on seizure list Exhibit-1/4. In cross-examination, this witness also admits that he is a resident of a village which is 15 kilometers away from the place of occurrence. He further admits that when he went to the house of the appellants, several other persons were found present there. He admits that the deceased had earlier also tried to commit suicide in village-Patwalia (the parental village of the deceased). 11 As noted above, PW 6 Manendra Kumar, who is tenant of the appellants, admits his signature on seizure list that is Exhibit-1/6 but he denies that any seizure was made in his presence in his examination-in-chief itself. In cross-examination, he admits that the signature was obtained on seizure list in his native place which was at a distance of 15 kilometers from the place of occurrence. Patna High Court CR. APP (DB) No.302 of 1989 dt.15-11-2011 8 12 PW 7 Sheikh Sahaban admits his signature on the seizure list (Exhibits-1/7 to 1/9) but states that he neither went inside the house of the appellants nor any seizure list was made in his presence. The Investigating Officer took his signature next day that is on 14.01.1986. At this stage, the prosecution declared him hostile. 13 PW 8 Raghubir Prasad, as noted above, had taken photographs and proved negatives marked as Exhibits-4 to 4/13 and positives marked as Exhibits-5 to 5/13. PW 9 has also been declared hostile. PW 10 Md Ali proves his signature on seizure list marked as Exhibit-1/5 but states that the same was taken at the Police Station. At this stage, the prosecution declared him hostile. 14 PW 11 Dr B K Agarwal was one of the doctors who held post mortem examination on the dead body of the deceased on 14.01.1986 at 1.30 pm at Sadar Hospital, Gopalganj and found following ante mortem injuries: (i) incised wound on front neck 1”x1/2"x1/2” (ii) bleeding from nose and mouth. On dissection, he found cut on trachea. According to him, death of the deceased was caused due to injury No (i) which may have been caused by a sharp cutting weapon like knife. He proves the post mortem report which has been marked as Exhibit-6. In cross-examination, the doctor admits that there was only one injury on the person of the deceased. He admitted that suicidal wounds situate generally on the front portion of the body easily accessible especially on throat, chest etc. In homicidal, wound injury may be on any part of the body. Existence of defencive injury is strongly suggestive of murder. Suicidal wound on neck is generally single and generally situate over hyoid. Homicidal or suicidal wound on the neck may be horizontal. Breaking of bangles, abrasion, portion of hair, clothing in the hand of deceased held firmly are indicative of suicide. He further admits that suicide is more common in female than male. Patna High Court CR. APP (DB) No.302 of 1989 dt.15-11-2011 9 15 As noted above, PW 12 Jayees Kumar is the Investigating Officer –cum- informant of this case. He has proved his Fardbayan Exhibit-6, formal first information report in the handwriting of Officer-in-charge Sukhlal Dubey (Exhibit- 8), inquest (Exhibit-9), seizure list regarding seizure of cloths (Exhibit-10), piece of stone (Exhibit-10/1), blood-stained knife, piece of bangles, blood-stained aluminum pipe of mosquito net (Exhibit-10/2), sari, blouse etc Exhibit-10/3, blood-stained toshak, bedsheet, sword (Exhibit-10/4), Satta (contract papers) (Exhibit-10/5). He has also proved prescription of doctor given to him by appellant No 1 after he was taken into custody which has been marked for identification as X/11. He states that inquest on the dead body of the deceased was done at 8.30 pm on 13.01.1986. In examination-in-chief itself, he says that the accused persons were found present in the house but they were arrested on 14.01.1986. He has been cross-examination by the defence. In cross-examination, he admits that he did not arrest anyone on 13.01.1986. He did not inform the Officer-in-charge of the Police Station before going to the place of occurrence. Gulam Hassan, appellant No 2 did not disclose about the knife which is said to have been seized from the place of occurrence. The seized knife was of a small size of one bitta (about less than 6 inches). He says that the knife was seized at 6 am on 14.01.1986 and the accused persons were arrested at about 10-11 am on 14.01.1986. This fact would be relevant. This makes the story of recovery of knife in question pursuant to alleged confessional statement made by accused improbable. He further admits that it cannot be said that the seized chura might be the instrument used for murder of the deceased. Neither the blood samples of accused nor the blood sample of the deceased was sent for forensic test. He admits that immediately after arrest, appellant No 1 had given him prescription of Dr Alam. The said prescription related to examination of the victim by Dr Alam. He admits that appellant No 1 had stated that Dr Alam told him to Patna High Court CR. APP (DB) No.302 of 1989 dt.15-11-2011 10 bring medicines for first aid but the case was difficult one and was out of control. This fact, coupled with the story given in the first information report that no reasonable explanation was given by the accused persons regarding death of the deceased, goes to suggest that a definite defence was taken by the accused persons at the very first point of time by saying that the deceased had committed suicide and when this fact came to the notice of the accused persons, immediately a doctor was called and the doctor examined her. Curiously enough, the Investigating Officer did not take note of these facts and did not investigate the case from this angle. He did not even bother to examine Dr Alam in order to know the truth. The Investigating Officer, in his further cross-examination, admits that no blood-stain was found on the cloth of any of the accused persons. He could not notice any sign of scuffle on their persons. When a question was put as to how he recorded that the seized slipper was of appellant No 5, he says that he did not know himself but it was told by appellant No 5 which fact was not noted by him in the case diary. He further admits that he did not go to the native place of the deceased or even to Assam in order to investigate the case. He lastly admits that the accused persons had told him that the victim had earlier also attempted to commit suicide in her native village. He also admits the fact that even without entrustment of investigation upon him by the Officer-in-charge, he took up the investigation himself. 16 As noted above, PW 13 Ambika Rai, who is a Constable, is a formal witness. He had proved the sealed packet received from the Forensic Science Laboratory which has been marked as Exhibit-18. 17 When we scrutinize the evidence in entirety, we see that certainly a death had taken place inside the house of the appellants. While recording the statement under Section 313, Criminal Procedure Code (Cr P C) of the accused persons, the Patna High Court CR. APP (DB) No.302 of 1989 dt.15-11-2011 11 appellants categorically stated that of course, the police came to their house but not on rumour rather information was given by appellant No 1 to the police. It is worthy to note here that when the police reached the house of the appellants, each and every member of the house was found present and no one even tried to escape. The dead body was found inside the house. It was neither buried nor any attempt was made to dispose it of. A definite defence of suicide having been committed by the deceased was taken. Unfortunately, the Investigating Officer did not think it proper to objectively investigate the case from this angle. When we look to the conduct of the accused persons, we further find that even before the Investigating Officer could have left the house of the appellants, the appellants had given him a prescription of the doctor. This shows bona fide on the part of the appellants that they made an attempt to save the life of the deceased who, according to the appellants, had committed suicide by calling a doctor. 18 Here, we would like to take assistance from a tabular chart which is given in Cox Medical Jurisprudence giving difference of symptoms between suicidal and homicidal death. The chart is given hereinbelow: Trait Suicide Homicide (i) Area Accessible parts like neck, wrist, chest etc No fixed area. Vital part like head, chest and abdomen (ii) Nature of wounds Usually incised stab Usually chop wounds. Stabs and lacerations also (iii) Number Usually single Multiple (iv) Arrangement Arranged Irregular (v) Direction In right handed persons from left to right and from above downwards Any direction (vi) Hesitation cuts Usually present Absent (vii) Defence wounds Absent May be present Patna High Court CR. APP (DB) No.302 of 1989 dt.15-11-2011 12 (viii) Severity Mostly superficial. One or two deep wounds Mostly severe wounds (ix) The weapons Usually grasped due to cadaveric spasm or found near the body Absent (x) Crime Scene Usually closed room. No disturbances of the surroundings Disturbed, signs of struggle present (xi) Clothes Not damaged Usually damaged (xii) Motive Present. Usually domestic problems, failure in examination, chronic diseases and disappointment in law Revenge, jealousy, robbery and sexual offences etc 19 When we look to the post mortem report, evidence of the doctor and take assistance from the tabular chart of Cox Medical Jurisprudence, we find that the theory of suicide in the present case is more compatible than the theory of homicide. If it was a case of suicide