CRL.A(J) - Gauhati High Court

IN THE GAUHATI HIGH COURT(HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA,MANIPUR, TRIPURA, MIZORAM AND ARUNACHALPRADESH)CRIMINAL APPEAL (J) NO.99/2005APPELLANTMd Abdul LatifBy advocate: Mrs RD MozumdarAmicus CuriaeVERSUSRESPONDENTState of AssamBy advocate: Mr Z Kamar, PPBEFOREHON’BLE THE CHIEF JUSTICE MR. MADAN B. LOKURHON’BLE MR. JUSTICE A.K. GOSWAMIDate of hearing : 27-01-2011Date of judgment and order : 14-02-2011Crl Appeal (J) No.99/05 Page 1 of 9

JUDGMENT AND ORDER(MADAN B. LOKUR, CJ)This is rather an unfortunate case where the learned SessionsJudge has completely misdirected himself in law, forgetting somevery basic principles.2. The appeal is directed against the judgment and sentence dated14-7-2005 passed by the learned Sessions Judge, Morigaon inSessions Case No.78/2004.3. Before we go to the merits of the case, we may note that theprosecution evidence in this case was closed on 5-7-2005. Thejudgment under appeal shows that arguments were heard on the samedate, that is, 5-7-2005. Judgment was delivered on 14-7-2005, that is,after about 8/9 days.4. On 14-7-2005, apparently after the judgment was delivered, theappellant was asked to enter his defence under Section 233(1) of theCrPC. He was asked the following question:-Crl Appeal (J) No.99/05 Page 2 of 9

“Q. - You are found guilty for committing murder ofyour own wife Musstt. Sahera Khatun. Will you adduceany evidence for your defence?Ans. – I have no evidence to adduce for my defence.”5. It is basic and fundamental that an accused person should beasked to lead his evidence before his conviction but we are surprisedthat a Judicial Officer as senior as a Sessions Judge did not evenrealize this.6. In the judgment under appeal, it is recorded (negatively) inparagraph 3 that the examination of the defence witnesses does notarise because if the accused does not deserve acquittal then he will becalled upon to lead his defence evidence. In other words, according tothe learned Sessions Judge a decision has to be taken soon after theprosecution evidence is closed whether the accused is guilty or not – ifthe accused is not guilty the question of adducing defence evidencedoes not arise but if the accused is guilty then he may be asked to leadhis defence evidence. We are more than surprised that the learnedSessions Judge has taken such a view.7. Paragraph 3 of the judgment under appeal reads as follows:-Crl Appeal (J) No.99/05 Page 3 of 9

“3. Based on commitment papers and record of GRcase, this Sess case was registered against accused AbdulLatif. As per direction of Committing Court, the accusedalso appeared before this Court. After perusal of 173 CrPCpapers and after hearing learned advocates for both thesides, charges u/s 302/201 IPC were framed against theaccused. The charges were read over and explained to theaccused to which the accused pleaded not guilty andclaimed to be tried. In this case, the prosecution examinedas many as 11 PWs including I/O whereas defenceexamined none so far. Defence plea is simple denial. In thisstage, question of examination of DW does not arise,because procedurally, if accused does not deserve hisacquittal, under the circumstance, accused shall becalled upon to enter into his defence and that stage is notyet at hand. … … …”(Emphasis given)8. Thereafter, the appellant was found guilty by the learnedSessions Judge and convicted, without giving him an opportunity tolead any defence evidence. In paragraph 23 of the judgment underappeal the learned Sessions Judge called upon the accused to enter hisdefence, if any. The relevant portion of paragraph 23 of the judgmentunder appeal reads as follows:-“23. Now the accused is called upon to enter into hisdefence, if any. The accused declined to adduce anyevidence for his defence. Hence, the accused is heard onthe point of sentence for offence punishable u/s 302/201IPC, but accused stated nothing on the point of sentencealso. … …”Crl Appeal (J) No.99/05 Page 4 of 9

9. It appears to us that the learned Sessions Judge first dictatedand pronounced the judgment from paragraph 1 to 22 on 14-7-2005and convicted the appellant. Thereafter he asked the appellant whetherhe would like to adduce any evidence in his favour. The appellantdeclined to do so. The learned Sessions Judge then asked the accusedif he had anything to say on the question of sentence. The appellantdid not have anything to say on the sentence. Then the learnedSessions Judge dictated and pronounced the remaining portion of thejudgment from paragraph 23 onwards sentencing the appellant toimprisonment for life.10. On these facts, as they appear from the record, there is nooption for us but to set aside the judgment under appeal and come tothe conclusion that without giving any opportunity to the appellant toadduce evidence in his favour, he has been convicted by the learnedSessions Judge.11. However, we have also gone through the merits of the case andwe find that no ground for conviction has been made out.12. The case against the appellant is that his wife Musstt SaheraKhatun disappeared from the matrimonial home on 22-6-2002Crl Appeal (J) No.99/05 Page 5 of 9

apparently along with her brother Imdadul Hussain, who wasabsconding during the trial and does not appear to have been found tilldate. It is not clear whether Imdadul Hussain is really the brother ofMusstt Sahera Khatun or not. It appears that no effort was made toascertain this fact.13. Be that as it may, since Musstt Sahera Khatun was not seen inthe village for some time, on 13-7-2002 a First Information Report(FIR) was lodged by PW-3 Sultan Mahmud, belonging to the VillageDefence Party (VDP), that Musstt Sahera Khatun has disappearedfrom her house in a suspicious manner; that there was some ill feelingbetween the appellant and Musstt Sahera Khatun; that Musstt SaheraKhatun left behind her minor children for which there is noexplanation and, therefore, it appears that the appellant killed his wife(Musstt Sahera Khatun) and concealed her dead body somewhere.14. The body of Musstt Sahera Khatun has not been found till date,her brother Imdadul Hussain also has not been found till date. Theevidence suggests that Musstt Sahera Khatun and her brother ImdadulHussain went to the house of her mother in a different village but noeffort was made by the Investigating Officer to find out whetherMusstt Sahera Khatun was living with her mother or not.Crl Appeal (J) No.99/05 Page 6 of 9

15. For convicting the appellant, the learned Sessions Judge reliedonly upon the extra judicial confession stated to have been made byhim. This extra judicial confession is stated to have been made beforePW-1 Hari Pada Roy and PW-2 Kasimuddin.16. In his evidence the Investigating Officer Prabhat Saikia, whoappeared in the witness box as PW-11, stated that the appellant didnot make any extra judicial confession before the witnesses. Thiscrucial part of the testimony has been completely overlooked by thelearned Sessions Judge.17. That apart, there is evidence on record from PW-3 SultanMahmud (the informant) that he was told by the children of MussttSahera Khatun that she had gone to her mother‟s house. A similartestimony was given by PW-4 Musstt Chan Banu.18. One of the children of Musstt Sahera Khatun, that is SahjahanAli, appeared in the witness box as PW-7. When he appeared in thewitness box he was aged about 14 years and he stated on oath that hismother Musstt Sahera Khatun had gone with his „Mama‟ ImdadulHussain to his maternal grandmother‟s house but this witness wasdeclared hostile.Crl Appeal (J) No.99/05 Page 7 of 9

19. It appears to us that the entire effort of the prosecution was tosomehow or the other find the appellant guilty, without carrying outany proper investigation, and a murderous story against the appellanthas been cooked up. It is true that there are some odd circumstances,such as, Musstt Sahera Khatun leaving the matrimonial home withouther minor children, but it appears from the record that she did notenjoy a happy matrimonial life with the appellant. It is quite possiblethat she may have left the matrimonial home in these circumstancesand it may be a simple case of desertion, rather than of murder. Noeffort was made to gather any evidence of any kind from the village ofMusstt Sahera Khatun‟s mother which would have certainly thrownsome light on the matter.20. All that we can say is that not only was the investigationshoddy, but even the trial was conducted in a manner totallyunbecoming a Court of Law.21. We have more than adequate reason, on the above facts, tobelieve that the appellant was not given a fair trial and that theinvestigation was motivated. There is absolutely no evidence to findthe appellant guilty of murdering his wife Musstt Sahera Khatun. Wesee no reason, under these circumstances, to remand the case forCrl Appeal (J) No.99/05 Page 8 of 9

afresh trial and in fact no such request has even been made by theprosecution.22. The appeal is allowed.23. The Trial Court Records be sent back immediately.24. For the services rendered, the learned Amicus Curiae willbe paid a sum of Rs.5000/- by the Assam State Legal ServicesAuthority.JUDGECHIEF JUSTICEMazumdarCrl Appeal (J) No.99/05 Page 9 of 9