DEATH REFERANC No.8 OF 2003 STATE OF BIHAR .... (Appellant) Versus NAUSHAD ALAM------------------(Respondents) WITH CR. APP (DB) No.283 oF 2003 MD. NAUSHAD ALAM @ MD. NAUSHAD-----------(Appellant) Versus STATE OF BIHAR-........................... -(Respondents) ----------- Reference made by Sri Ravindra Prakash Sinha, Additional District and Sessions Judge, Fast Track Court I, Araria vide letter no. 82 dated 21-6-2003 and Appeal against the judgment and order dated 11th June, 2003 passed by Additional District & Sessions Judge, Fast Track Court No.I, in Sessions TrialNo.2/96,Tr.No229/2002 ------------- Advocate for the Appellant:- Mr. Vikram Deo Singh, Mr. Ajay Kumar and Mr. Sanjeev Verma, Advocates Advocate for the Respondent:- Mr. Ashwini Kr.Sinha,A.P.P. ------------ P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON’BLE MR. JUSTICE MADHAVENDRA SARAN ------------ Shiva Kirti Singh,J Md. Naushad Alam has been convicted for the offence under section 302 of the Indian Penal Code by Judgment and Order dated 11th June, 2003 passed by Additional District and Sessions Judge, Fast Track Court No. I, Araria in Sessions Trial No. 2 of 1996, Tr.No. 229/02, and has been awarded death sentence. The reference made by the trial court for confirmation of the death sentence and the appeal preferred by Md. Naushad Alam have been heard together and are being disposed of by this common judgment. 2. The materials on record, particularly the evidence of the Investigating Officer, P.W.11, Shivaji Singh reveal a rather un-usual happening in the - 2 - morning of 19-4-1995 at about 8.05 A.M. P.W.11 who was then posted as Officer-in-Charge of Araria Police station, received telephonic message from the residence of Superintendent of Police, Araria that a person giving the name and description of the appellant Naushad Alam had gone to the residence of the S.P. and had claimed that he had committed murder of his wife. A Sanha entry no. 521 (Ext.4) was made by the Officer-in-Charge and then he went to the residence of the S.P. and saw the appellant, who stated before P.W.11 that he had committed murder of his wife. The accused was brought to police station where the officer-in-Charge recorded his statement on which the appellant signed and the same was entered as Sanha Entry No. 522 dated 19-4-1995 (Ext.4/1) and on the basis of both the Sanhas, in order to verify the claim of the accused, the Officer-in-Charge ( P.W.11) went to the address of the appellant at village Rampur Mohanpur with police force for investigation. He found the door of the room described as Baithka locked. P.W.11 opened the door by breaking the lock in presence of villagers such as Jamaluddin son of Asad Ali (P.W.8 ) and entered into the room. There he found the deceased Bibi Nasrin, wife of the appellant, lying dead on a small Palang ( bed stead ) . She had been killed by slitting of her throat.The Officer-in-Charge sent Dalpati, Gulam Rasul to call Sabir Alam(P.W.6), father of he deceased, a resident of the same village. On the basis of Fardbeyan ( Ext.2)) of Sabir, a formal F.I.R.( Ext.6) was recorded by P.W.11 on 19-4-95 at 9.00 A.M.. 3. The fardbeyan ( Ext. 2 ) discloses that according to P.W.6, the informant, he had married his daughter Bibi Nasrin with Naushad, the appellant, about one and half years ago. Naushad began beating his daughter just after few days of marriage. When persuasion of informant did not bring any change in - 3 - Naushad, the informant stopped visiting Naushad’s house since last two months. He had received information on that day at about 7 A.M. from his younger daughter Najrin ( P.W.5) that Naushad had broken Nasrin’s arm by beating her. The informant asked his niece to find out the reason for the beating and became busy in his work. He received information from Dalpati, Gulam Rasul at his house that police had come and that his daughter had been killed. Then he reached the place of occurrence and found that throat of his daughter Nasrin had been silt with some sharp edged weapon. He has asserted that Nasrin’s husband had killed her with a knife. 4. The records reveal that appellant was produced before a Judicial Magistrate for recording of his confession. The confession recorded by a Judicial Magistrate, Ist. Class, Araria on 24-4-1995 has been brought on record as Ext.7. The order-sheet shows that on 24-4-1995 after the confession of the appellant was recorded by the Magistrate the appellant refused to put his signature but the Magistrate has certified that the statement recorded by him was voluntary and after giving due warning to the appellant that it could be used against him. 5. The Investigating Officer seized a Lungi of the appellant stained with blood from his house and also a knife kept under the bed having blood marks. This was as per disclosure made by the accused in his confession before the Investigating Officer contained in Ext.4/1. He also seized blood stained earth from the place of occurrence, prepared the inquest report and sent the dead body for post-mortem examination. After recording the statement of witnesses charge sheet was submitted against the appellant and also against some of his family members on a subsequent allegation made by the witnesses alleging - 4 - offence under section 4 of the Dowry Prohibition Act. However, the other 7 accused who were also put on trial along with the appellant have been acquitted by the learned trial court. The appellant was charged under section 302 of the Indian Penal Code. He denied the charge and was put on trial. His conviction and sentence has already been noticed earlier. The defence of the appellant is total denial of the occurrence as well as a plea of insanity. 6. The prosecution has examined altogether 13 witnesses to prove the charge. P.W.1 Md. Nashique, P.W.2 Abdul Bari, P.W.4 Bibi Sabra Khatoon, P.W.5 Najarin and P.W.6 Sabir Alam are the brother, uncle, mother, sister and father respectively of the deceased Bibi Nasrin. P.W.8 Md. Jamal has been tendered only for cross-examination in which he has disclosed that the deceased was living with the appellant in the Baithka since 10 months before the occurrence. He has denied the allegation of demand of dowry by the accused persons and has also attempted to support the plea of insanity of the appellant. P.W.9, Md. Farooque Alam is uncle of the deceased. This witness deposed about demand of dowry but his cross-examination was obstructed by irrational behaviour of the appellant. 7. P.W.3, Dr. Sudhanshu Shekhar Jha held autopsy on the dead body of Bibi Nasrin on 19-4-1995 at 1.30 P.M. He found sharp cut of throat transversely across the neck cutting skin, subcutaneous tissues, muscles, arteries, external and internal carotid arteries, veins, nerves, pharynx and larynx at the level of thyroid cartilage, vertical column and muscles of back of neck were intact . In the opinion of the doctor the injuries were caused by sharp cutting weapon such as knife and the injury was sufficient to cause death in the ordinary course of nature. The time elapsed since death was within 24 hours. He has - 5 - proved the postmortem report as Ext.1. 8. P.W.7, Nirmal Kumar Singh and P.W.10 Basuki Nath Srivastava are other police officials besides P.W.11, Shivaji Singh, the I.O. P.W.7 has proved the two Sanha entries bearing nos. 521 and 522 as Exts. 4 and 4/1. P.W.10, Basuki Nath Srivastava took charge as Investigating Officer when the entire investigation was complete and as per direction of the senior police officers and finding sufficient evidence in the case diary, he submitted charge sheet in the court against the appellant under section 302 of the Indian Penal Code . He has proved the formal F.I.R. as Ext.5. He has also proved 4 recovery and seizure lists prepared by the Investigating Officer as exts. 6 to 6/3. 9. P.W.11 is the Officer-in- Charge of the concerned police station and also the main Investigating Officer of the case. The major part of the investigation beginning from the visit to the house of Superintendent of Police where P.W.11 took the appellant in custody and recorded his confession to other acts of investigation at the place of occurrence have already been noticed earlier. He has deposed about those facts. He has deposed that he seized blood stained mud from the eastern Tati of Baithka, the broken lock and blood stained Lungi from near the hand-pipe situated in the back of the house in presence of Salauddin and Mojib Ahmad. The clothes of the deceased such as Dupatta, Salwar and Sameej were found wet with blood and were proved as material Exts. I,II and III.,blood stained knife was proved as material Ext.IV, blood- stained mud was proved as material exhibit V and blood stained Lungi was proved as material exhibit VI. These were sent to State Forensic Science Laboratory for chemical examination. According to the I.O. he found no material regarding demand of dowry. - 6 - 10. P.Ws.1,2 and 4 have deposed mainly regarding demand of dowry by Naushad and his family members after deceased married with Naushad. P.W. 5, sister of the deceased has deposed that one day before the occurrence she was informed by sister of appellant’s mother that the appellant had beaten her sister and had broken her hand. On the next day she passed on this information to her father. The informant, P.W.6 has fully supported the version of the occurrence given by him in the fardbeyan. He has reiterated that appellant used to beat his daughter, the deceased, frequently. He has described the presence of blood on the Palang , clothes and the earth and also recovery of blood stained sharp edged knife having a wooden handle from under the bed on the Palang. He has also alleged demand of dowry by the family members of the appellant. He has proved his fardbeyan as Ext.2 and his signature over the same as Ext.3. In his cross-examination the informant has disclosed that appellant was a student of Araria College before the marriage, he had no problem in maintaining his family and it is not fact that he behaved like a mad man prior to the occurrence. He has also disclosed that appellant was practicing as a private doctor. 11. There is nothing significant in the cross-examination of the aforesaid witnesses except that admittedly none of the witnesses saw the actual murder of the deceased. The circumstances which have been brought on record have been considered by the trial court and also the disclosure made by the appellant in exhibit4/1, the station diary entry no. 522 on the basis whereof P.W.11 came to the Baithka for verification and after breaking the lock he recovered the dead body having the neck cut with a sharp edged weapon, the blood stained knife kept under the bed and the Lungi of the appellant stained with blood kept near the hand-pump. These were recovery of incriminating - 7 - materials pursuant to disclosure made by appellant after he was taken into custody and brought from the residence of Superintendent of Police, Araria to the police station. The material exhibits have been produced before the trial court to support the claim of the prosecution. 12. The other circumstances available against the appellant are- (i) He was living alone with his wife in the Baithka where the dead body was found on the palang, (ii) the weapon used in the murder was also found kept in the room under the bedding, (iii) nobody noticed or reported any stranger entering into the bed room of the appellant and his wife, and (iv ) the evidence on record to the effect that appellant used to assault his wife.(v) report of Forensic Science Laboratory ( Ext. 9) shows presence of blood over all the Material Exhibits. Further, the blood group could be found out of blood over the knife and over the Salwar and Sameej of the deceased. These were all of Group B. 13. The appellant was examined under section 313of the Code of Criminal Procedure . He was intelligent enough to understand the questions put to him and even denied that he had confessed about the occurrence to the police officers but gave no explanation as to in what manner and by whom his wife could have been killed in their bed room where she was living with the appellant. 14. On a consideration of aforesaid materials, facts and circumstances , I find no manner of doubt that the prosecution have succeeded in proving the charge under section 302 of the Indian Penal Code against the appellant. However, the defence plea of insanity of the appellant remains to be examined. 15. It is well established in law that burden of proving anyone of the General Exceptions like insanity is upon the defence. According to section 84 - 8 - of the Indian Penal Code , nothing is an offence which is done by a person, who at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.It is clear that plea of unsoundness of mind by itself is not sufficient . The defence must also prove that the accused, on account of unsoundness of mind, could not have known the nature of the act or that it was contrary to law. 16. Reverting to the facts of the case, it is found that at the stage of framing of charge, on 30-4-96 and 13-5-96 the appellant gave no reply to the court’s question whether he would engage his own advocate or the same shall be provided by the State.. But on 5-5-1996 a vakalatnama was filed by an Advocate on behalf of appellant and thereafter on 22-5-96 the court noticed some unusual behaviour being displayed by the appellant in court. By order dated 22-5-1996 the learned trial court ordered for examination of the appellant by Board of doctors determined by Civil Surgeon, Purnea. The report of the Medical Board was noticed in order dated 25-7-1996. As per that report the appellant was mentally sound. On 6-5-1997 the appellant created an ugly scene in court on which again a report was called for because his acts in court prevented cross-examination of P.W.9, Md. Farooque Alam on 6-5-97 as well as on 9-7-97. The report of the jail doctor was called for on the petition filed on behalf of appellant. That report was noticed on 28-5-97. According to the report the mental state of the appellant was not normal, jail doctor recommended his treatment by a psychiatrist. For a report from psychiatrist the appellant was sent to Patna Medical College and Hospital and according to that report as mentioned in order dated 24-1-98 the appellant was found suffering from traumatization. - 9 - 17. On behalf of defence two witnesses have been examined. D.W.1, Baidyanath Kamti is a compounder in jail hospital. He has proved report of jail doctor as Ext.A and doctor’s signature as Ext.B. He has also proved an application dated 21-5-2000 for allotment of security to bring under-trial prisoner Naushad Alam from mental hospital, Ranchi as Ext.C. He has also proved a letter dated 5-5-2000 to the effect that Naushad was admitted in Mental Hospital for treatment as Ext.D. That witness has clearly admitted that he had no chance to work with the concerned jail doctor and he could not say what kind of treatment was given to the appellant. He also admitted that appellant was brought back from Ranchi because he had recovered. No recommendation of the Medical Board was produced to show that appellant was recommended for mental treatment at Mental Hospital. Finally he stated that he was not sure whether appellant was mentally sound or he had acted like a mad man in order to save himself. D.W.2 Mujib Ahmad who was the local Mukhia , has deposed that he knows the appellant personally and appellant was married with the deceased and after marriage he lived separately from the parents.He had also admitted that Naushad was a literate person but has claimed that he behaved like a mad man because at times he used to pamper hen by lifting it in his lap. In cross-examination he has disclosed his ignorance about date, month or year of Naushad’s marriage. He admitted that appellant had never done any untowards act prior to the occurrence nor he has undergone any mental treatment. He has admitted his signature on the seizure list, ext.6 relating to seizure of the knife and ext 6/3 a seizure of Lungi of green colour. He has admitted that knife and the Lungi had blood stains. 18. In absence of any record of mental illness of the appellant prior to - 10 - the occurrence or even soon after the occurrence, it is not possible to accept the defence plea that cutting of neck of his wife with a knife was done by the appellant in state of unsoundness of mind which had rendered him incapable of knowing the nature or implication of this act or that it was contrary to law. The appellant did not leave the blood-stained knife stabbed in the neck but kept it under the bedding. He changed his blood-stained Lungi before going to the S.P. He did not cry or inform the family members and took the precaution of locking the door of his Baithka where the dead body was lying. The informant who is a resident of the same village has stated that appellant was a literate person and suffered from no mental illness. He would not have married his daughter to the appellant if the appellant had been suffering from mental illness because such illness could not have remained secret from a co-villager. Even D.W.2, the Mukhia has not disclosed any earlier incident which could suggest that appellant had suffered from unsoundness of mind and had committed any incident without understanding implication of that. Thus, on an over-all view of the facts and circumstances as well as defence evidence considered above, I am of the view that the defence has failed to show by any direct evidence or even on the basis of cogent circumstances that the appellant had committed the murder of his wife while suffering from unsoundness of mind due to which he was incapable of knowing the implication of his acts. He clearly knew that what he had committed was contrary to law and therefore, he went to the residence of Superintendent of Police, a symbol of law. 19. In view of aforesaid discussions and findings it must be held that the conviction of the appellant does not suffer from any illegality so as to warrant any interference. So far as sentence of death is concerned, there is no direct - 11 - evidence available on record to indicate the motive for the occurrence or the exact circumstances which led to the killing of the deceased by her husband, the appellant inside the room. In absence of such materials it is not possible to hold the present offence as such a rare occurrence which must warrant only death sentence. In my view, there are no special reasons flowing from the facts of this case for award of death sentence. Hence, while dismissing the appeal preferred by the appellant against his conviction, his death sentence is commuted to life imprisonment for actual period of not less than 14 years in custody. In fact learned counsel for the State, placing reliance upon a recent judgment of the Supreme Court in the case of Swami Shraddananda @ Murali Manohar Mishra Vrs. State of Karnataka reported in JT 2008(8) SC 27, submitted that in case this court did not approve the death sentence then life imprisonment should be specified, on account of peculiar facts of this case, to actual imprisonment for not less than 20 years . However, considering all the facts and circumstances, I am of the view, that ends of justice would be satisfied if life imprisonment is specified in this case as actual imprisonment of 14 years. The reference is answered in negative. The appeal is dismissed with aforesaid modification in sentence. (Shiva Kirti Singh,J) Madhavendra Saran,J ( Madhavendra Saran,J) Patna High Court,Patna Dated the 16th September, 2008 NAFR Naresh - 12 -