MD JAMAL ABEDIN Vs. STATE OF ASSAM

JUDGEMENT

(1.) - This appeal arises out of judgment dated 8th of March, 1996 delivered by Sessions Judge, Darrang at Mangaldoi in Sessions Case No. 39(DMI/92, thereby holding the appellant guilty of offence punishable under Section 302 I.P.C. and sentenced him to undergo imprisonment for life with fine of Rs. 5001- or in default of payment of fine to suffer one months R. I.

(2.) Prosecution case stated in brief was Mustt. Undia Khatun Samartabhan, a widow aged about 241 25 years, whose husband had died a couple of years ago was living with her brother Nur Islam. the complainant, P.W. 5. Prior to it she lived with another brother Osman Alt, P.W. 2 but because of some quarrel with his wife Mustt. Sayera Khatoon, P.W. 8, she started living with the complainant Nur Islam. On the fateful night intervening 21st and 22nd of February. 1991, when Nur Islam, P.W. 5 and his wife Jamiran Nessa, P.W. 4 had gone to some other place, some miscreants intruded into the house by breaking open the door and attempted to commit rape on Undia. She resisted to her utmost and raised alarm. On such resistance being offered she was strangulated to death. The miscreant is named as the present appellant, hearing her cries P. W. 2 Osman and P.W. 8 Sayera Khatoon went to the house. Undia was found lying unconscious. P.W. 2 poured a little water on her head, after sometime she regained consciousness and told her brother that it was the accused- appellant who attempted to commit rape on her when she resisted, she was kicked by the accused in her belly. Undia was taken to the hospital next day morning but she breathed her last on way to the Civil Hospital.

(3.) It is the prosecution case that Nur Islam P.W. 5 on coming to know of the incident through his brother Osman Alt, P.W. 2 went to lodge Ejahar. Ext, 3 which resulted in the registration of offence and prosecution of the appellant on completion of investigation. The F.I.R., Ext. 3 was lodged on 24th. That is to say, three days after the incident. The F.I.R. Ext. 3, itself contains a note at the end to the following effect: The reason behind the delay in lodging the Ejahar in my late arrival (at home) from the place where I work. The investigation was conducted by P.W.11, who visited the place of occurrence and held inquest, Ext. 2, the dead body was sent for post-mortem examination, Prior to the registration of the Ejahar. Ext. 3, which was admittedly handed over to the 1.0. at the place of the occurrence around 9.00 A.M. on 24th, he had already received a wireless message from Panbari Police Outpost on 23rd it self, this wireless message has not seen the light of the day who informed the Panbari Police Outpost and what was that information received by the police is again suppressed and not placed on record, the 1.0. has himself admitted. On completion of investigation the accused was charged and tried for the above offence. Prosecution examined, as many as 11 witnesses including the Medical Officer. P.W.1, performing the autopsy and the Investigation Officer. Out of these witnesses P.W. 4 Mustt. Jamiran Nessa. Wife of the complainant. P.W. 7 Habel Ali. P.W. 9 Md. Ajimuddin and P.W. 10 Hakimuddin Ahmed were declared hostile by the prosecution. They have not supported the prosecution case. The trial Court. However, found the accused-appellant guilty of the offence charged and convicted and sentenced him as already noted above. Hence this appeal.