Sahabuddin & Anr vs State Of Assam

1. It is the case of the prosecution that the accused Sahabuddin was married to one Sajna Begum, the deceased on 17th May, 2001, and they were staying together. She was three months’ pregnant. During her last visit to her parental home, she wailed and was not willing to go back to her husband’s house, stating that her husband and her brother-in-law would kill her if their demands of dowry were not met. However, the wish of her parents prevailed and she was sent back to her matrimonial home. After lapse of barely a couple of months i.e. on 9th September, 2001, approximately four months after her marriage, at about 10 p.m., one Sarifuddin, the elder brother-in-law of Sajna Begum, informed her uncle, Taibur Rahman, PW7 that she fell down in the kitchen due to dizziness. Ten minutes later, Sarifuddin came back and informed them that Sajana Begum fell down and froth was coming out of her mouth and thereafter she died. PW7 informed the mother of the deceased, Abejan Bibi, PW3, about the death of her daughter, Sajna Begum. When they reached the place of occurrence, they saw that their daughter was lying dead. Suspecting that it was not a natural death and that there had been some foul play on the part of the accused persons i.e. the husband and the brother-in-law of the deceased, PW3, lodged an FIR.

2. The FIR, Ext. 3, was registered under Section 304(B) of the Indian Penal Code, 1860 (for short “IPC”). However, the Court of competent jurisdiction on the basis of the police report and upon hearing both the parties found that a prima facie case under Section 302/34 IPC was made out against the accused Sahabuddin and Sarifuddin. They were charged with the same offence and the case was put to trial. The Investigating Officer, Someshwar Boro, PW11, took over the investigation, examined a number of witnesses and seized the dead body from the place in question. The body of the deceased was subjected to post mortem. On 10th September, 2001, Dr. Swapan Kumar Sen, PW1 in the post mortem report, Ext. 1 stated that injuries on the body of the deceased were ante-mortem and that there were multiple bruises on the lower abdomen. Also, the neck was swollen and face was congested and swollen. Although, the cause of death could not be ascertained, the visceras were preserved to be sent to the Forensic Science Laboratory, Guwahati, for forensic and chemical analysis. PW2, an Executive Magistrate, who had conducted inquest on the body of the deceased noticed that the hands of the deceased were close fisted and saliva was coming out of her mouth along with a little quantity of foam. Black spots were found on her belly and some spots were also noticed on her back. Ext. 2 is the inquest report.

3. The mother of the deceased, Abejan Bibi, PW3 was another material witness and according to her, assault marks could be seen all over the body of the deceased and that her neck was swollen. PW3 also stated that she saw black marks on the left side of the abdomen of her deceased daughter. Thus, on being suspicious that her daughter had been killed, PW3 lodged the FIR. PW4 who had accompanied PW3, stated PW3 to be her aunt and the statement of PW 4 was quite similar to that of PW3. PW7, Taibur Rahman was the uncle of the deceased, Sajna Begum who had first been informed of her demise by her brother in law, Sarifuddin.

4. However, PW8 and PW9 were the prosecution witnesses who did not fully support the case of the prosecution and were thus declared hostile by the prosecution. Both these witnesses were the neighbours of the accused persons. Accused in their statements under Section 313 of the Code of Criminal Procedure (for short “the CrPC”) denied all the allegations and opted to lead defence. The accused persons had examined as many as three witnesses, who were primarily produced to establish the plea of alibi, affirming that the accused were not present in the house, when the incident took place.

5. Disbelieving the defence put forth by the accused, the Trial Court held both the accused guilty of the offence punishable under Section 302 read with Section 34 IPC and having found them guilty, awarded them life imprisonment and a fine of Rs. 5000/- and in default to undergo simple imprisonment for six months.

7. Challenging the legality and correctness of the judgment of the Trial Court, the accused persons preferred an appeal before the High Court. The High Court vide its judgment dated 27th November, 2008 dismissed the appeal, confirming the finding of guilt and order of sentence passed by the Trial Court, giving rise to the filing of the present appeal.

9. We are unable to find any merit in the contentions raised on behalf of the appellants, which we propose to discuss together as the Court has to refer to the same evidence for appreciation of the contentions raised on behalf of both the appellants. Thus, it will be appropriate to discuss the pleas together.

“On 10/9/2001 I was at Karimganj Civil hospital as Senior M & H.O. On that day at 3-30 p.m. I held post mortem examination on the dead body of Sajna Begum aged 18 years, a female Muslim, from Durlabpur under Patharkandi P.S. on police requisition, being identified by Head Constable Rabindra Deb and Md. Khairuddin, a relation of the deceased and found as :-

24. The plea of alibi was taken by the appellants and was sought to be proved by the statement of defence witnesses, DW1, DW2 and DW3 respectively. These witnesses have rightly been disbelieved by the Trial Court as well as by the High Court. We also find no merit in the plea of alibi as it is just an excuse which has been put forward by the accused persons to escape the liability in law. There is a complete contradiction in the material facts of the statement of DW1, DW2 and DW3. According to the statements of DWs that none of the family members were present on the spot is strange in light of the fact that the deceased was so ill that she died after a short while due to her illness. If none of the accused, whom these witnesses knew were present, then it is not only doubtful but even surprising as to how they came in contact with the deceased at the relevant time. The falsity of the evidence of the defence is writ large in the present case. For these reasons, we find the conduct of the accused unnatural and the statement of these witnesses untrustworthy. The plea of alibi is nothing but a falsehood.

26. For the reasons afore-stated, we find no merit in the contentions raised on behalf of the appellants. Before we part with this file, we cannot help but to observe that the competent authority ought to have taken some action on the basis of the observations made by the Trial Court in its judgment under appeal.

30. Where the eye witness account is found credible and trustworthy, medical opinion pointing to alternative possibilities may not be accepted as conclusive. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the court on the technical aspect of the case by examining the terms of science, so that the court, although not an expert, may form its own judgment on those materials after giving due regard to the expert’s opinion, because once the expert opinion is accepted, it is not the opinion of the medical officer but that of the Court. {Plz. See Madan Gopal Kakad v. Naval Dubey & Anr. [(1992) 2 SCR 921: (1992) 3 SCC 204]}.” “The present case, when examined in light of the above principles, makes it clear that the defect in the investigation or omission on the part of the investigation officer cannot prove to be of any advantage to the accused. No doubt the investigating officer ought to have obtained serologist’s report both in respect of Ext. 2 and Ext. 5 and matched it with the blood group of the deceased. This is a definite lapse on the part of the investigating officer which cannot be overlooked by the Court, despite the fact that it finds no merit in the contention of the accused.

For the reasons afore-recorded, we dismiss this appeal being without any merit. However, we direct the Director General of Police, Uttarakhand to take disciplinary action against Sub-Inspector, Brahma Singh, PW6, whether he is in service or has since retired, for such serious lapse in conducting investigation.

The Director General of Police shall take a disciplinary action against the said officer and if he has since retired, the action shall be taken with regard to deduction/stoppage of his pension in accordance with the service rules. The ground of limitation, if stated in the relevant rules, will not operate as the inquiry is being conducted under the direction of this Court.”

31. In view of the above settled position of law, we hereby direct the Director General of Police, State of Assam and Director General of Health Services, State of Assam to take disciplinary action against PW1 and PW11, whether they are in service or have since retired. If not in service, action shall be taken against them for deduction/stoppage of pension in accordance with the service rules. However, the plea of limitation, if any under the relevant rules would not operate, as the departmental inquiry shall be conducted in furtherance to the order of this Court.

32. The appeal is dismissed, however with the above directions.