Crl.A. 88/2007 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI HON’BLE MR. JUSTICE A.C.UPADHYAY Ranjan Gogoi, J Both the appeals are directed against the same judgment and orde r dated 20.3.2007 passed by the learned Sessions Judge, Kamrup in Sessions Case No. 16(K)/05 by which the appellants in both the appeals have been convicted und er Section 366(A)/302/201/34 IPC. In Criminal Appeal No. 88/07, the learned coun sel for the appellant, Sri TB Bikash, had submitted that he has no instructions in the matter. Accordingly, we had deemed it appropriate to request Sri SK Medhi , learned counsel who was appointed as the amicus curiae in the connected appeal i.e. Criminal Appeal No. 82(J)/07 to act as the amicus curiae in Criminal Appea l No. 88/07. Sri Medhi having consented to so act, we had proceeded to her the a ppeals which are being disposed of by this common judgment and order. 2. The short case of the prosecution is that on 26.8.2003 at about 2 p.m. P.W.1, Amzad Ali lodged an FIR in the Hajo Police Station alleging that o n 22.8.2003 at about 3.30 p.m. both the accused/ appellants had kidnapped his mi nor daughter Marjina Begum (16 years). According to the first informant, the gir l had taken away a sum of Rs. 60,000/- in cash from the savings of the first inf ormant. According to the first informant, they had searched for the girl but wer e not able to find her. Furthermore, in the FIR filed it was stated that one Akl ima Bibi, mother of the accused/ appellant Bani Alam Majid and the husband of th e elder sister of the said accused, one Farid Ali, had informed the first inform ant that the accused/appellant Bani Alam Majid had kidnapped the girl and had ke pt her at Mukalmua with the intention of marrying her. According to the first in formant, the aforesaid two persons had assured him that the marriage will be arr anged and had requested the first informant and his family members not to lodge any complain with the police in this regard. As there was no trace of the missin g girl for about four days, the FIR in question was lodged. 3. On the basis of the aforesaid FIR, Hajo P.S. Case No. 131/03 u/s 366(A)/34 IPC was registered. The case was investigated by P.W.13, Sri D. Das i n the course of which it was revealed that the accused persons had killed the vi ctim girl and had kept her dead body concealed near the Pandu Railway Track. The same was recovered at the instance of the accused. Thereafter, inquest was held on the dead body by P.W.14, Kamal Kr. Baishya who was working as the Circle Off icer of the Hajo Revenue Circle. Post mortem of the deceased girl was conducted by P.W.9, Dr. Amarjyoti Patowary. In the course of the investigation statements of persons acquainted with the crime alleged were also recorded. Thereafter, at the conclusion of the investigation, chargesheet was submitted against both the accused/ appellant under Section 366(A)/302/201/34 IPC. The offences under Secti on 366(A) and 302 IPC being exclusively triable by the Court of Sessions, the le arned Judicial Magistrate, 1st Class, Hajo committed the case for trial by the C ourt of Sessions at Kamrup, Guwahati. 4. In the Trial Court, charge under Section 366(A)/302/201/34 IPC w as framed against the accused/ appellants to which they pleaded not guilty and c laimed to be tried. In the course of trial the prosecution examined fourteen wit nesses in all. Accused Jahangir Ali examined himself as D.W.1. The statements of the accused/ appellants were also recorded under the provisions of Section 313 CrPC. Thereafter, at the conclusion of the trial, the accused/ appellants have b een found guilty of the offences alleged against them. The learned Trial Judge b y the order dated 20.3.2007 sentenced each of the accused/ appellants to suffer R.I. for five years along with a fine of Rs. 3000/-, in default to suffer R.I. f or one year more for the offence under Section 366 IPC. For the offence under Se ction 201 IPC, each of the accused/ appellants have been sentenced to undergo R. I. for five years along with a fine of Rs. 3000/-, in default, to suffer R.I. fo r one year more. Each of the accused/ appellants have also been sentenced to und ergo R.I. for life and to pay a fine of Rs. 3,000/-, in default, to suffer R.I. for one year more for the offence under Section 302 IPC. Aggrieved, both the app eals have been filed. 5. For a proper appreciation of the issues raised by the learned co unsels for the parties and to determine the culpability of the accused/ appellan ts, it will be necessary to briefly notice the evidence tendered by the prosecut ion witnesses in the case. P.W.1, Amzad Ali is the first informant and the father of the de ceased. According to P.W.1, on the day of the occurrence when his daughter was g oing on the road with another girl, accused Bani Alam Majid along with the other accused Jahangir Ali came in a Tata Sumo vehicle and forcibly took away his dau ghter. According to P.W.1, the incident occurred at about 3/3.30 p.m. P.W.1 has deposed that he had fanatically searched for his daughter but without any result . After about 2/3 days, according to P.W.1, he had met accused/ appellant Jahang ir Ali who informed him that his daughter was in Mukalmua and that there was not need for any worry. According to P.W.1, the husband of the elder sister of accu sed Bani Alam Majid, one Farid Ali was also present who had also asked him not t o worry about the girl. P.W.1 has deposed that the aforesaid Farid Ali had speci fically stated that he would bring the girl and arrange her marriage with accuse d Bani Alam Majid. In cross-examination, P.W.1 had admitted that there was a love a ffair between his daughter ad accused Bani Alam Majid which had continued for ab out five years. P.W.1 had also stated in his cross-examination that he came to k now about the occurrence from Junu Begum (P.W.2) who was a friend of his daughte r. 6. P.W.2, Junu Begum, in her deposition had stated that she was a c lassmate of the victim girl. According to P.W.2, at about 3 O’clock in the after noon of the day of occurrence she along with the victim girl was going on the ro ad to the house of the elder sister of P.W.2. At that point of time the two accu sed/ appellants came in a Tata Sumo vehicle and forcibly took the deceased away. According to P.W.2, the victim girl had told her that she was in love with the accused Bani Alam Majid. In cross-examination, P.W.2 had stated that the victim girl had left on her own accord and that she had boarded the vehicle on her own will. 7. P.W.3, Minuwara Begum in her deposition had stated that accused Bani Alam Majid and the deceased were in love. This witness had further stated t hat she was informed by the deceased that the accused had told her that he would take her to Andhra Pradesh and that she should arrange for some money. Accordin g to P.W.3, the father of the deceased (P.W.1) had collected about Rs. 60,000/- by selling some land and on the day of the occurrence the victim girl had taken the money with her. This witness has also deposed that the mother of the accused Bani Alam Majid and his elder sister’s husband Farid Ali had informed the fami ly of the victim girl that they would arrange for the marriage of the accused Ba ni Alam Majid and the victim girl and that they should not search for the girl o r file any case with regard to her disappearance. 8. P.W.4, Bulbuli Begum is the mother of the victim girl who in her deposition had stated that the mother of the accused Bani Alam Majid and one Fa rid Ali had come to their house and had informed them that they should not searc h for the girl and further that they would arrange for the marriage of the girl with accused Bani Alam. This witness has also stated that the accused Bani Alam and the victim girl were in love. 9. P.W.5, Anwar Hussain had deposed that on 27.8.2003 he had gone t o the Hajo Police Station. Some forty persons of the village had accompanied him . According to P.W.5, in the Police Station the accused/ appellant Bani Alam had confessed that he had assaulted the deceased Marjina with a stone and later had killed the deceased by hanging her with a vest. According to P.W.5, accused Ban i Alam had also informed the gathering that he had kept the body of the deceased concealed at a certain place. In cross-examination, P.W.5 had stated that at the time when the accused had made the aforesaid statement they were in police custody. 10. The evidence of P.W.6, Samsul Haque and P.W.7, Jahidur Rahman is similar, namely, that the two accused/ appellants had confessed to the crime an d had kept the dead body concealed. Both the witnesses, however, had stated that the aforesaid statement of the accused were made in the presence of the police. 11. P.W.8, Mainul Haque had corroborated P.W.5,6 and 7 with regard t o the confession made by the accused/appellants in the police station whereas P. W.10, Abdul Hamid had deposed in a similar vein. The evidence of P.W.11, Jamser Ali is substantially similar to the evidence tendered by the other prosecution w itnesses with regard to the confession of the accused/ appellants in the police station including the fact that they had kept the dead body concealed in a parti cular place. 12. P.W.9, Dr. Amarjyoti Patowary had performed the post mortem of t he deceased on 27.8.2003 in the Guwahati Medical Collge & Hospital. The injuries found on the dead body of the deceased including the opinion of the doctor with regard to the cause of death may be usefully extracted hereinbelow: INJURIES (1) Contusion present in whole of front and sides of neck. (2) Crysentic abrasion with contusion of size 1.5 cm x 0.5 cm (nail mark) presen t in front of the neck, 2.5 cm to right of midline & 3 cm below mandible. (3) Contusion of size 10 cm x 7 cm in front of chest, over upper half of sternum . (4) Contusion of whole of lower lip with laceration of size 2 cm x 0.5 cm x 0.7 cm in inner part of midline. (5) Contusion of whole of upper tip with laceration of size 2 cm x 1 cm x 0.8 cm in inner part in midline. (6) Contusion involving whole of left face and cheek. (7) Contusion involving whole of right face and cheek. (8) Laceration of size 1 cm x 1 cm in midline. 1.5 cm below lower tip margin. (9) Laceration of size 1.5 cm x 0.7 cm x 0.8 cm on outer part of upper lip in mi dline. (10) Contusion of whole of left waist joint with pactine, dislocation of joint. (11) Multiple abrasion with contusion in lower half of left leg. Size from 1 cm x 1 cm to 0.5 cm x 0.5 cm. (12) Multiple abrasion with contusion in dorsum of right forearm and arm, size f rom 1 cm x 1 cm to 1 cm x 0.8 cm. (13) Abrasion of size 1 cm x 1 cm in front of right leg 10 cm above medial maleo lus. ................................................................................ ...................................................................... OPINION : Death was due to asphyxia as a result of manual strangulation. All the injuries described were ante mortem, caused by blunt weapon & homicidal in natur e. Evidence of recent sexual intercourse not detected. She was not pregnant. Tim e since death (approx.) 24 to 36 hours. . 13. While the evidence of P.W.12, Nilima Begum will not be very mate rial; P.W.13, Sri D. Das, the Investigating Officer of the case, had deposed tha t during the investigation both the accused/ appellants had stated before him th at they had killed the victim girl and had kept her dead body concealed near the Pandu Railway Track under Jalukbari Police Station. P.W.13 has specifically dep osed that both the accused/ appellants led the police party to the place where t he dead body was kept concealed and that they were accompanied by P.W.14, the Ci rcle Officer of Hajo Revenue Circle. P.W.14, Kamal Kumar Baishya on the other ha nd had proved the inquest report which was prepared by him. The same had been ex hibited as Exhibit-2 and the signature of P.W.14 therein as Exhibit-2(4). A read ing of the aforesaid inquest report (Exhibit-2), however, would go to show that the dead body was recovered from a jungle at the instance of accused Jahangir Al i. 14. A careful scrutiny of the evidence adduced by the prosecution wi tnesses, the main part of which has been noticed above, would indicate that admi ttedly there is no eye witness to the occurrence and the case of the prosecution against the accused/ appellants rests entirely on circumstantial evidence. It w ill, therefore, be the duty of the Court to ascertain what are the incriminating circumstances that the prosecution has been able to prove and establish and, th ereafter, to piece together all such circumstances to see whether the only concl usion that can be drawn from the chain of proved events is that it is the accuse d/ appellants and nobody else who had committed the crime. Only in that event th e conviction of the accused/ appellants as ordered by the learned Trial Court ca n be sustained. 15. In so far as the offence under Sections 366 or 366 (A) IPC is co ncerned, from the evidence of P.W.1,2,3 and 4 it transpires that there was a lov e affair between accused Bani Alam and the deceased. From the evidence of P.W.3 it transpires that accused Bani Alam had told the victim girl that he would take her to Andhra Pradesh and that she had to arrange for some money. According to P.W.3 and 4, on the day of the occurrence the victim girl had taken away Rs. 60, 000/- which her father (P.W.1) had collected by selling some land. The evidence of P.W.2 who was accompanying the deceased at the time when she was taken away b y the accused/ appellants in a Tata Sumo vehicle squarely indicates that no forc e was used by the accused/ appellants to take away the girl and that she had gon e with the accused/ appellants in the vehicle on her own accord. All the aforesa id circumstances borne out from the evidence of the prosecution witnesses would indicate that the essential ingredients of the offence under Section 366 IPC is not made out against the accused/ appellants so as to warrant their conviction under the aforesaid section of the Penal Code with the aid of Section 34 of the Code. 16. This will bring the Court to a consideration of the next questio n i.e. the liability of the accused/ appellants under Section 302/201 read with Section 34 IPC. Though we have held that the accused/ appellants had not forcibl y taken away the deceased and that she had gone with the accused on her own will , there can be no manner of doubt that from the evidence on record it clearly tr anspires that the deceased was last seen alive in the company of the two accused on 22.8.2003. The evidence on record (P.W.1) also establishes that the dead bod y of the deceased was recovered on the day following the date of lodging of the ejahar. The ejahar having been lodged on 26.8.2003, the Court can proceed on the basis that the dead body was recovered on 27.8.2003. The approximate time/ date of the death can be gathered from the evidence of P.W.9 who had testified that he had conducted the post mortem of the deceased on the day when the dead body w as brought to the hospital i.e. 27.8.2003 and that death could have occurred 24 to 36 hours before the time of the post mortem examination. The time gap betwee n the accused and the deceased being last seen together and the possible time of death being somewhat long the Court had considered as to whether the benefit of such time lag can go in favour of the accused/ appellants on the ratio of the l aw laid down by the Apex Court in the case of State of U.P. -vs- Satish, reporte d in (2005) 3 SCC 114. In this regard, we have also read and considered a subseq uent judgment of the Apex court in State of Goa -vs- Sanjay Thakran & Anr. Repor ted in (2007) 3 SCC 755 wherein the above principle of time lag has been explain ed by the Apex Court to be not necessarily fatal for the prosecution in all case s. In this regard, we have specifically noticed that in the evidence of P.W.1,3 and 4 it has been stated that after the victim girl had left with the accused/ a ppellants, the parents of the victim girl (P.W.1 and 4) were informed by the mo ther of the accused Bani Alam Majid and one Farid Ali that there was no reason t o worry as the victim girl was with accused Bani Alam at Mukalmua and that the m arriage between the accused/ appellant Bani Alam and the victim girl will be arr anged. If this is the evidence on record, the prosecution cannot be asked to exp lain what had happened after the deceased girl had left with accused Bani Alam M ajid. Rather, the evidence on record would permit us to understand that during t he intervening period i.e. till her death the deceased was in the custody of the accused particularly when no contrary situation has been built up by the accuse d. That an accused has the duty and obligation to do so and cannot be allowed to remain silent once the prosecution discharges its initial burden can be spelt o ut from the decision of the Apex Court in State of West Bengal -vs- Mir Mohammad Omar, reported in AIR 2000 SC 2988. 17. We are, therefore, inclined to hold that on the basis of the evi dence on record the first circumstance that stands proved against accused/ appel lant is that the accused/ appellants and the deceased were in the company of eac h other until the time of death of the girl. While the extrajudicial confessi on of the accused as deposed to by P.W.5,6,7, 10, 11 and 13 would be hit by the provisions of Section 25 of the Evidence Act, the same having made in the presen ce of the police, the statement of the accused leading to the discovery of the d ead body from the jungle where it was kept concealed would be admissible under S ection 27 of the Evidence Act. The recovery of the dead body at the instance of the accused/ appellants or at least one of them i.e. accused/ appellant Jahangir Ali, as evident from the inquest report, is a highly incriminating circumstance that would implicate both the accused/ appellants in view of the clear evidence on record that accused/appellant Jahangir at all material times was in the comp any of the other accused/ appellant Bani Alam Majid. 18. We have pieced together the aforesaid two circumstances proved b y the prosecution against the accused/ appellants and on doing so it is our cons idered view that the said circumstances viewed together can lead to only one con clusion, namely, that it is the accused/ appellants who are responsible for the death of the deceased girl. The second circumstance i.e. recovery of the dead bo dy from the place where it was hidden also proves the offence under Section 201 IPC against the accused/ appellants. 19. We are, therefore, inclined to take the view that on the basis o f the proved circumstances of the case the prosecution has succeeded in establis hing the guilt of the accused/ appellants under Section 302/201/34 IPC beyond al l reasonable doubt. We, therefore, do not find any error in the conviction recor ded by the learned Trial Court under the aforesaid Sections of the Indian Penal Code. 20. In the result, while setting aside the conviction of the accused / appellants under Section 366 IPC, we affirm the conviction of the accused/ app ellants under Section 302/201/34 IPC. The sentences imposed for commission of th e aforesaid offences by the learned Trial Court are maintained. 21. Both the appeals are dismissed subject to the interference as ab ove. 22. The Court acknowledges the assistance rendered by Mr SK Medhi, l earned amicus curiae and directs the State to pay to Mr Medhi two days’ hearing fee at the rate of Rs. 2500/- per day.