MD.YUSUF Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) BOTH the appellants were tried and convicted for offences under Sections 302/34 of the Indian Penal Code and sentenced to undergo imprisonment for life by the judgment of conviction rendered by the Trial Court.

(2.) THE gist of charge, as framed against them is that on the night of 25/ 26th March, 1991, in furtherance of their common intention, the appellants committed murder of Amilan Nisha, wife of the appellant No. 1, in the house of the appellants within village Borobin, P.S. Ramgarh, District Hazaribagh. The case was registered on the basis of the Fardbeyan of the informant namely Md. Tasaur Ansari (PW9) who is the brother of the deceased, recorded by the SI of Police, Chandra Bhushan Prasad Singh, on 26.3.1991 at 15.30 hours. Case of the prosecution, in brief, is that the deceased namely Amilan Nisha, was married to the appellant No. 1 on 25.5.1990. After her marriage, she went to her matrimonial house where she lived for two/three months whereafter her husband brought her and left her at her paternal house refusing to allow her to live with him on the ground that she used to discharge urine on the bed during night. After some medical treatment, she became normal whereafter she went back to her matrimonial house where she lived for about four months. During this period, her brother (the informant) used to make frequent visits to her and at that time, she used to complain that her husband and mother -in -law, namely the appellants herein, used to assault her and ill -treat her. About 11/2 months prior to the date of the occurrence, the husband brought her back to the house of the informant after assaulting her and had left her there. At that time, she was in her advanced stage of pregnancy. Later, her husband along with his brother -in -law visited the informant's house and took her back to her matrimonial house with an assurance that he would treat her well. On the date of occurrence i.e. 26.3.1991, the husband of the deceased came to the house of the informant (PW9) and informed that his wife (deceased) had died on account of abdominal pain. The informant along with co -villagers went to the house of the appellants where he found his sister lying dead. Some froth was seen coming out of her nose and there were marks of violence on her body. The informant was told by the villagers that on the previous night, the deceased was assaulted by her husband and mother -in -law and they had administered poisonous substance to the deceased causing her death. On receipt of information, the police (PW10) arrived, saw the dead body, prepared inquest and forwarded the dead body for post -mortem examination. The Doctor (PW1) who had conducted autopsy on the dead body of the dead lady had found following ante mortem injuries on the body:

(3.) MR . G.C. Sahu, learned Counsel for the appellants has assailed the impugned judgment of conviction of the appellants on the ground that the findings recorded by the learned Trial Court is against the weight of evidence on record and that the learned Trial Court has erred in placing implicit reliance on the testimony of the informant and that of the PW8 despite the fact that neither of these witnesses were eye -witnesses to the alleged murder of the deceased and despite the fact that both of them being the nearest relations of the deceased, were highly interested witnesses whose testimony did not find adequate corroboration. Learned Counsel explains further that the Trial Court has failed to consider that there was no direct evidence regarding the alleged assault on the deceased and the circumstance which the prosecution has tried to put forth through the aforesaid witnesses do not complete the chain of circumstances nor does it lead to any definite conclusive inference of guilt against these appellants. Learned Counsel adds further that the learned Court below has failed to consider the inconsistencies in the ocular testimony of the witnesses and the medical evidence inasmuch as though the prosecution vide the First Information Report (FIR) claims that the deceased died on account of administering poisonous substance to her, the medical report does not confirm that the death was caused on account of poisoning. Learned Counsel adds that the opinion of the doctor (PW1) that the death of the deceased was on account of strangulation is not definite and conclusive and cannot be relied upon. Learned Counsel explains that in case of strangulation, there should have been nail or finger marks on the neck and fracture of the larynx and trachea. In the present case, the doctor has admitted that he had not found any such marks, nor did he find the larynx or trachea of the deceased fractured. Learned Counsel argues further that the opinion of the doctor, that the death of the deceased was on account of strangulation cannot be considered as conclusive since it leaves scope to the probability of death being caused other than by way of strangulation. Learned Counsel in this context places reliance on the judgment of the Calcutta High Court reported in 1970 Cr LJ 403. Referring to the evidence of the informant (PW9) and that of his brother (PW8), learned Counsel explains that though both these witnesses claim that the deceased used to suffer ill -treatment besides mental and physical cruelty at the hands of the appellants, but they admit that no complaint was ever lodged either by the deceased or by the witnesses before any authority, including the local Gram Panchayat and neither has any independent witness come forward to support the aforesaid allegation against these appellants. Learned Counsel adds further that even otherwise, neither of these witnesses claim to have seen the actual assault made by the assailants on the deceased and they admittedly rely upon unconfirmed statements of the villagers whose identity has not been disclosed. Inviting attention to the evidence of PW8 who has claimed that prior to the death of the deceased while she was living in the house of the informant, it was her husband (appellant No. 1) and the brother -in -law of the appellant No. 1 who had visited the house of the informant for taking back the deceased to her matrimonial house and after her departure from the house of the informant, the deceased was found dead in the house of the appellants. Learned Counsel explains that the brother -in -law of the appellant No. 1 has not been examined by the prosecution. It is further submitted that the Trial Court ought to have considered the fact that it was the appellant No. 1 who had informed the informant about the death of the deceased and both these appellants were continuously present in their house as would be evident from the fact that they were arrested on the same day (on the date of the institution of the case). Learned Counsel tries to explains that had the appellants been guilty of the charge, they would have absconded. Referring to the evidence of the investigating officer, learned Counsel submits that though the prosecution has claimed that the deceased was subjected to violence, but the investigating officer did not find any marks of violence on the alleged place of the occurrence, nor did he find any incriminating article at the place of the occurrence. Learned Counsel argues that on reading the evidence of PW 8 and 9, the invariable inference would be that none of them can be considered as wholly reliable. Relying upon the judgment of the Supreme Court in the case of Marwadi Kishor Parmanand V/s. State of Gujarat reported in the learned Counsel explains that the principles of appreciation of evidence is that conviction of the accused can be sustained only if the evidence of the witness is wholly reliable and may acquit, if it is wholly unreliable, and must look for corroboration, if it is neither wholly reliable nor wholly unreliable.