in the court of sessions judge,...
TRANSCRIPT
SESSIONS CASE NO – 69/12.
1
IN THE COURT OF SESSIONS JUDGE, KOKRAJHAR.
Present – M. A. Choudhury.
Sessions Judge,
Kokrajhar.
Sessions Case No- 69 of 2012.
Under sections – 302, 380 IPC.
State of Assam --------------------- Complainant.
Vs.
Sri Gautam Mondal @ Paltu. ----------------------- Accused.
Appearance :
For the State ------------------------- Sri N. Roy, Public Prosecutor.
For the accused ----------------------- Sri N. Sarkar, Advocate.
Date of Charge – 10.8.2012.
Date of taking evidence – 31.8.2012, 18.9.2012, 10.10.2012, 3.12.2012,
17.12.2012, 9.1.2013, 27.2.2013, 16.11.2013,
3.7.2014.
Date of hearing Argument – 2.8.2014.
Date of delivery of Judgment – 14.8.2014.
Sentence passed on – 19.8.2014.
JUDGMENT
1. The case of the Prosecution may in brief be described thus:
On 9.3.2012, at about 7-20 p.m., UBC Sri Sankar Mahanayak of
Dadgiri P.P. under Basugaon Police Station, Dist – Chirang informed Sri
Rupak Kumar Borah, O.C., Basugaon Police Station over phone to the
effect that taking advantage of the absence of the In-charge of Dadgiri P.P.
SESSIONS CASE NO – 69/12.
2
from his official quarter, some one had entered in to his official quarter and
committed murder of his wife by inflicting injuries by sharp and pointed
weapon. Instantly, the O.C., Bassugaon Police Station made an entry in this
regard in the General Diary of Basugaon Police Station vide Basugaon P.S.
G.D. Entry no-244 Dated 9.3.2012.
The O.C. Sri Rupak Kumar Borah along with Circle Inspector and
staff rushed to the place of occurrence which is the official quarter of Abdul
Mutleb Khandakar, In-charge, Dadgiri P.P. In the place of occurrence, he
found the dead body of Jahanara Begum @ Ranju Begum, wife of Abdul
Mutleb Khandakar, In-charge of Dadgiri P.P. was lying on a bed in a room
of the quarter and the dead body was smeared with blood. The O.C., Rupak
Kumar Borah started investigation of the case as I.O. He prepared the sketch
map of the P.O. and recorded the statement of UBC Sri Sankar Mahanayak
and Abdul Mutleb Khandakar. Abdul Mutleb Khandakar raised his
suspicion upon the accused Sri Gautam Mandal @ Paltu who was the driver
of the Tata Mobile vehicle that had been requisitioned by Dadgiri P.P.
regarding his involvement in the occurrence. Abdul Mutleb Khandakar also
stated that Rs-4,00,000/- were taken away by breaking open two trunks from
his house. On the same night, the I.O. brought the accused Sri Gautam
Mandal at Dadgiri P.P. and started interrogation. On the following day ie, on
10.3.2012 in the morning, the I.O. recovered a knife from the northern side
of the homestead of the father-in-law of accused Gautam Mandal on being
lead by the accused. The I.O. seized the knife by preparing a seizure list. The
I.O. also seized by preparing a seizure list one grey coloured Jeans Pant
and one grey coloured Jacket which were soaked in a bucket on being
shown by the accused from the homestead of his father-in-law. On the same
day, the I.O. sent the dead body to Basugaon Police Station. At Basugaon
Police Station, the inquest over the dead body was conducted by Addl.
Deputy Commisioner Sukur Ali. There after, the I.O. got conducted the
Post Mortem examination upon the dead body at RNB Civil Hospital,
Kokrajhar. On 11.3. 2012, the I.O. arrested the accused Sri Gautam Mandal
and forwarded him to the court. The I.O. took the accused in Police custody
from the court. While the accused was in Police Custody, the I.O. recovered
Rs-3,29,500/- on being led by the accused from the house of his father-in-
law which was hidden under the ground in a room of that house. The I.O.
seized the aforesaid money by preparing a seizure list. The I.O. also seized
two trunks from the quarter of Abdul Mutleb Khandakar by preparing a
seizure list. The I.O. went to vill- Khagrabari in the house of Sri Khirode
Basumatary and then Sri Pradip Basumatary, the Secretary of Self Help
Group, Khagrabari handed over Rs-15,000/- in Bhutan currency to him
stating that the accused on 9.3.2012 had paid the same to them. Then he
SESSIONS CASE NO – 69/12.
3
seized the said money by preparing a seizure list in presence of witnesses.
The I.O. recorded the statement of witnesses under section 161 Cr.P.C.
2. On 10.3.2012 at 3-00 p.m., a written infomation was lodged
with Basugaon Police Station by Abdul Mutleb Khandakar. Treating the
same as First Information Report, Basugaon P.S. Case No- 25/2012, u/s 302,
380 IPC was registered against the accused Sri Gautam Mandal. S.I. Sri
Rupak Kumar Borah, O.C., Basugaon Police Station had taken the charge of
investigation.
After completion of investigation, the I.O. laid the charge sheet
against the accused Sri Gautam Mandal under sections 302, 380 IPC.
3. On receiving the charge sheet, learned C.J.M., Kokrajhar took
cognizance of the case. As the offence under section 302 IPC being
exclusively triable by the Court of Sessions, learned C.J.M., Kokrajhar after
complying with the provisions of section 207 Cr.P.C., committed the case
to this court for trial.
4. The accused Sri Gautam Mandal was produced before the
court. Heard the learned advocate of both sides on the matter of charge and
also perused the case record. Having found sufficient materials against the
accused person under sections 302, 380 IPC in the case record, the charges
under the aforesaid sections of IPC were framed against the accused person.
The charges under sections 302, 380 IPC were read over and explained to
the accused person to which he pleaded not guilty and claimed to be tried.
5. In course of trial, the Prosecution side examined seventeen
witnesses including the M.O. and I.Os.
6. The statement of the accused person was recorded under
section 313 Cr.P.C. The accused person in his aforesaid statement, denied
the commission of theft and murder of the deceased.
7. In defence of the accused, two witnesses were examined
from the Defence side.
The case of the defence side as appeared from the defence
evidence is to the effect that Sri Ganesh Mandal, the father of the accused,
had paid Rs-1,20,000/- to the accused for purchasing a vehicle and Smti
Radha Mandal, the mother of the accused, had paid Rs-5,000/- in every
month for a period of 18 months to the accused.
SESSIONS CASE NO – 69/12.
4
8. Heard Argument from the learned advocate of both sides.
Perused the case record very carefully.
9. Considering the charges framed against the accused person as
well as the plea of defence, the following points are considered necessary for
determination in the instant case:
(i) Whether Jahanara Begum @ Ranju Begum was done to
death?
(ii) Whether the accused person had caused the death of
Jahanara Begum @ Ranju Begum?
(iii) Whether the death of Jahanara Begum @ Ranju Begum was
done with intention of causing her death?
(iv) Whether the accused person committed theft in the official
quarter of Abdul Mutleb Khandakar, S.I. of Police, situated with in the
Dadgiri Police Out Post complex, an amount of Rupees four lakh?
(v) Whether the accused person is the owner of the money that
had been recovered from the dwelling house of the father-in-law of the
accused person?
10. DECISION AND REASONS:
Before going in to the merit of the case, it is necessary to
determine which one is the FIR of the case, whether the G.D. Entry no-244
Dated 9.3.2012 of Basugaon P.S. or the ejahar lodged by Abdul Mutleb
Khandakar on dated 10.3.2012 at 3-00 p.m. with Basugaon P.S.
P.W.16 Sri Rupak Kumar Borah, the I.O. of the case, at the
time of occurrence, was the O.C. of Basugaon P.S. According to his
evidence, on 9.3.2012, at about 7-20 p.m., UBC Sri Sankar Mahanayak of
Dadgiri P.P. under Basugaon Police Station, Dist – Chirang informed him
over phone to the effect that taking advantage of the absence of the In-
charge of Dadgiri P.P. from his official quarter, some one had entered in to
his official quarter and committed murder of his wife by inflicting injuries
by sharp and pointed weapon. Instantly, he made an entry in this regard in
the General Diary of Basugaon Police Station vide Basugaon P.S. G.D.
Entry no-244 Dated 9.3.2012. He then along with Circle Inspector and staff
rushed to the place of occurrence which is the official quarter of Abdul
Mutleb Khandakar, In-charge, Dadgiri P.P. In the place of occurrence, he
SESSIONS CASE NO – 69/12.
5
found the dead body of Jahanara Begum @ Ranju Begum, wife of Abdul
Mutleb Khandakar, In-charge of Dadgiri P.P. was lying on a bed in a room
of the quarter and the dead body was smeared with blood. He started
investigation of the case as I.O. He prepared the sketch map of the P.O. and
recorded the statement of UBC Sri Sankar Mahanayak and Abdul Mutleb
Khandakar. Abdul Mutleb Khandakar raised his suspicion upon the accused
Sri Gautam Mandal @ Paltu who was the driver of the Tata Mobile vehicle
that had been requisitioned by Dadgiri P.P. regarding his involvement in the
occurrence. Abdul Mutleb Khandakar also stated that Rs-4,00,000/- were
taken away by breaking open two trunks from his quarter. On the same
night, he brought the accused Sri Gautam Mandal at Dadgiri P.P. and
started interrogation. On the following day ie, on 10.3.2012 in the morning,
the I.O. recovered a knife from the northern side of the homestead of the
father-in-law of accused Gautam Mandal on being lead by the accused. The
I.O. seized the knife by preparing a seizure list. The I.O. also seized by
preparing a seizure list one grey coloured Jeans Pant and one grey
coloured Jacket which were soaked in a bucket on being shown by the
accused from the homestead of his father-in-law. On the same day, the I.O.
sent the dead body to Basugaon Police Station. On 10.3.2012, at Basugaon
Police Station, the inquest over the dead body was conducted by Sukkur Ali,
Addl. Deputy Commisioner, Chirang. There after, on the same day ie on
10.3.2012, the I.O. got conducted the Post Mortem examination over the
dead body at RNB Civil Hospital, Kokrajhar.
On 10.3.2012 at 3-00 p.m., a written infomation was lodged
with Basugaon Police Station by Abdul Mutleb Khandakar. Treating the
same as First Information Report, Basugaon P.S. Case No- 25/2012, u/s 302,
380 IPC was registered against the accused Sri Gautam Mandal. S.I. Sri
Rupak Kumar Borah, O.C., Basugaon Police Station had taken the charge of
investigation.
From the case record as well as from the evidence of
P.W.16(I.O.), it is appeared that on 10.3.2012 at 3-00 p.m., an ejahar was
lodged with Basugaon Police Station by Abdul Mutleb Khandakar
regarding the occurrence which was registered as Basugaon P.S. Case No-
25/2012, u/ss-302, 380 IPC. When the evidence of P.W.16 I.O. is
considered, it is found that the investigation of the case was commenced on
the strength of G.D. Entry no-244 dated 9.3.2012 of Basugaon Police
Station. The Extract copy of the G.D. Entry No- 244 Dated 9.3.2012 of
Basugaon Police Station was produced before the court by P.W.17 Sri
Sunmoni Saikia, the O.C., Basugaon Police Station as per order of the court
and the extract copy of the aforesaid G.D. Entry was proved as Ext-12 by
SESSIONS CASE NO – 69/12.
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him by adducing his evidence. The G.D. Entry No- 244 Dated 9.3.2012 of
Basugaon Police Station as recorded by P.W.16( I.O.) reads as under:
“7-20 p.m., Receipt of Information:
Now, UBC Sri Sankar Mahanayak of Dadgiri P.P. over phone
informed that taking advantage of the absence of In-charge, Dadgiri P.P. in
his quarter, some one had entered in to his official quarter and committed
murder of his wife by inflicting injuries by sharp and pointed weapon. On
the information so given, I along with Circle Inspector and staff at the
leadership of Circle Inspector proceeded towards the place of occurrence.”
From the evidence of P.W.16 I.O., it is appeared that the
investigation of the case has been commenced before the ejahar was lodged
with Basugaon P.S. on 10.3.2012 at 3-00 p.m. The investigation of the case
has been commenced just after the G.D. Entry which was made at 7-20 p.m.
on dated 9.3.2012.
The investigation of this case had been commenced on the basis
of G.D. Entry (Ext-12) and the contents of the said G.D. Entry ought to have
been treated as FIR. Logically therefore, the contents of the Ext-1 which
was lodged by P.W.1 Abdul Mutleb Khandakar has been wrongfully treated
as FIR. In fact, the contents of Ext-1 would have been treated as statement
made in writing to the Police by P.W.1 Abdul Mutleb Khandakar during
the course of investigation of the case by the Police and thus the contents of
Ext-1 , constitute nothing, but a statement under section 161 Cr.P.C. of
P.W.1 Abdul Mutleb Khandakar. Being the nature of a statement, made
under section 161 Cr.P.C., the contents of Ext-1 were hit by section 162
Cr.P.C. and were not therefore admissible in evidence.
11. Admittedly, in the instant case, there is no eye witness to the
occurrence and the entire prosecution case is based on circumstantial
evidence.
12. P.W.14 Dr. P.K. Doley performed Post Mortem on the dead
body of Jahanara Begum on 10.3.2012. His findings are as follows:-
“ Deep penetrating multiple injuries over right abdomen and deep
cut injury over front of the neck.”
In the opinion of the doctor, death was due to massive
haemorrhage from injuries leading to shock and it is ante-mortem in nature.
SESSIONS CASE NO – 69/12.
7
The Doctor proved the Post Mortem Examination Report as Ext-6 and Ext-
6(1) is his signature in it.
The findings of the Doctor as regards the nature of injuries
sustained by the deceased and his opinion as to the cause of death of the
deceased, had not been disputed by the Defence side at the trial.
The multiple deep penetrating injuries over the right abdomen
and deep cut injury over the front of the neck of the deceased was sufficient
for the cause of death of the deceased.
P.W.1 Abdul Mutleb Khandakar is the husband of the deceased.
He in his evidence stated that he had come back from Basugaon P.S. at
about 6-45 p.m. to his quarter at Dadgiri P.P. and when he had entered in to
his quarter, found his wife lying dead on the bed in a pool of blood having
deep cut injury over her neck and 3/4 nos of deep penetrating injuries
caused by dagger over her abdomen. P.W.3 Musstt Padvan Bewa, P.W.4
UBC Sri Sankar Mahanayak, P.W.5 Sri Basudev Kisku in their evidence
stated that they entered in to the quarter of P.W.1 along with him and found
his wife was lying dead on the bed in a pool of blood having deep cut
injuries over her neck and abdomen.
P.W.2 Sri Dhiraj Bosnet in his evidence stated that on date of
occurrence in the dusk, he came to know that the wife of P.W.1 had been
murdered in the quarter of P.W.1. Then he came in to the quarter of P.W.1
and found P.W.1 and other persons there in. Then he saw the wife of P.W.1
had been lying dead on a bed having cut injuries over her neck and
abdomen.
Thus, the evidence of doctor together with the Post Mortem Report
Ext-6, and the evidence of the P.Ws.1, 2, 3, 4 and 5 make it abundantly clear
that the death of deceased Jahanara Begum was homicidal, not a case of
suicide or accident.
13. P.W.1 Abdul Mutleb khandakar in his evidence stated that at
the time of occurrence ie, on 9.3.2012, he was the I/C of Dadgiri Police Out
Post. He had been living along with his wife Jahanara Begum in the Quarter
of Dadgiri Police Out Post. On the date of occurrence at about 8-30 a.m., he
came to Basugaon Police Station leaving his wife alone in the Official
Quarter. He returned back to Dadgiri Police Out Post at about 6-45 p.m. on
that day. While he reached in front of his Quarter, then Musstt. Padvan
Bewa, a woman who was running a Pan shop by the side of Dadgiri Police
SESSIONS CASE NO – 69/12.
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Out Post informed her that at about 3-00 p.m., the Milk woman had gone to
his house and knocked the door, but, could not get any movement of his
wife. Then he went forward towards his Quarter and found the front door
of his Quarter was locked from out side by a bolt. Then he made the bolt
straight, opened the door and entered in to the house. Then he found his
wife Jahanara Begum had been lying dead on the bed with cut injury upon
the front side of her neck and 3/4 stab injuries upon her abdomen. There
were blood all over the bed. Then he looked around the room and found his
two nos of Trunk were opened. He then looked in to his both trunks and
found Rs-4,00,000/- had been missing from the Trunks. He in his evidence
further stated that on the date of occurrence, there was a Tata Pick Up Van
in the Out Post under requisition. The driver of the requisitioned Tata Pick
Up Van was the accused Sri Gautam Mandal. On the date of occurrence in
the morning, he asked the accused Sri Gautam Mandal to go driving the
requisitioned vehicle along with him at Basugaon Police Station. But, the
accused did not go along with him taking the requisitioned vehicle on the
pretext that he had to go to village- Khagrabari. He in his evidence stated
that for the aforesaid reason, he had strong suspicion upon the accused that
he had committed the murder of his wife. P.W.1 was subjected to cross-
examination. But, the evidence adduced by him remained unshaken in his
cross-examination. The fact that after committing the murder of his wife,
Rupees four lakh were stolen away by breaking open two nos of trunk from
his Quarter remained unshaken in his cross-examination. From the evidence
adduced by P.W.1, it has been proved beyond all reasonable doubt that after
committing the murder of his wife, Rupees four lakh were stolen away by
breaking open two nos of Trunks from his Quarter.
14. P.W.16 Sri Rupak Kumar Borah is the I.O. of the case.
According to his evidence, on 11.3.2012, he arrested the accused Sri Gautam
Mandal and forwarded him to the court and on the same day, he took Police
custody of the accused person from the court for two days. During Police
custody, the accused confessed before him that he had committed theft of
large amount of money from the Quarter of I/C Abdul Mutleb Khandakar
which he had not counted. The accused further stated that out of the stolen
amount, he had taken out Rs-16,500/- and from Rs-16,500/-, he had repayed
the loan of Rs-15,000/- taken from Khagrabari Alimur Fund Self Help
Group. From remaining amount of Rs- 1,500/-, he gave Rs-1,000/- to his
brother-in-law and he spent Rs-500/-. The accused further stated that he had
wrapped the remaining amount of money with polythene and there after he
had hidden the same under the ground in the bed room of his father-in-law
Late Laxman Thamang in the house of Late Laxman Thamang. The accused
further stated that he would able to show the place where he had hidden the
SESSIONS CASE NO – 69/12.
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money. It is in the evidence of P.W.16 that then he recorded the aforesaid
statement of the accused person which he proved as Ext-14 and Ext-14 (1) is
his signature in it. Then he along with the Police staff took the accused to
Dadgiri Police Out Post from Basugaon Police Station. Then the accused in
front of witnesses Sri Bhisan Thapa, Sri Dhiraj Bosnet, Sri Bishal Basnet,
Sri Umesh Karki and other persons confessed that he concealed the money
under the ground of the bed room of his father-in-law Late laxman Thamang
after he had committed the theft of the money from the Quarter of I/C Abdul
Mutleb Khandakar. Then the accused led him, Sri Bishal Basnet, Sri Umesh
Karki, Sri Dhiraj basnet, Sri Bhisan Thapa, S.I. Sri Guman Singh Chetri,
D.S.P. Head Quarter Sri Indranil Baruah in to the house of his father-in-law
Late Laxman Thamang. In the house of his father-in-law, the accused led
them in to the bed room. In the bed room, the accused removed the bedstead
from it‟s keeping place and recovered money being wrapped with polythene
by removing earth from the side of the wall of the house which was under
the bedstead. He in his evidence further stated that then he removed the
polythene from the money and counted the money and it was Rs-3,29,500/-
in Indian currency. Then he seized the aforesaid money by preparing a
seizure list in presence of the witnesses. He proved the seizure list as Ext-3
and Ext-3(4) is his signature in it. The seized money were present before the
court and he proved the same as Material Ext-1.
P.W.6 Sri Bishal Basnet, P.W.7 Sri Bishar Thapa, P.W.8 Sri
Umesh Karki are the witnesses of leading to discovery of money.
P.W.6 in his evidence stated that his house is situated about ½
K.M. away from Dadgiri Police Out Post. On 11.3.2012 at about 8-00/9-00
p.m., the V.C.D.C. Chairman of village Hatisar Gaon called him in to
Dadgiri Police Out Post. At Dadgiri Police Out Post, he found VCDC
Chairman Sri Dhiraj Basnet, Sri Bhisan Thapa, Sri Umesh karki, the O.C. of
Basugaon Police Station and the C.I. He also found the accused Sri Gautam
Mandal in the Police Out Post. The C.I. told him that they had taken the
accused at Police Out Post as the accused would led them to recover money.
Then the accused Sri Gautam Mandal led him, Sri Umesh karki, Sri Bishap
Thapa, Sri Biraj Basnet, the O.C. of Basugaon Police Station, D.S.P. and
C.I. to the house of his father-in-law. In the house of his father-in-law, the
accused led them in to the bed room. In the bed room, the accused recovered
money by digging the earth under the bedstead. The O.C., Basugaon Police
Station took the money from the accused. In the bed room of the house, the
money was counted and found Rs-3,29,500/- in Indian Currency. The O.C.,
Basugaon Police Station seized the money by preparing a seizure list and he
put his signature in the seizure list. He proved the seizure list as Ext-3 and
SESSIONS CASE NO – 69/12.
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Ext-3(1) is his signature in it. The seized money were before the court and
he proved the same as Material Ext-1.
P.W.7 Sri Bishar Thapa in his evidence stated that the accused
Gautam Mandal was known to him. On 11.3.2012 at about 8-00/9-00 p.m.,
the V.C.D.C. Chairman of village Hatisar Gaon called him in to Dadgiri
Police Out Post. At Dadgiri Police Out Post, he found VCDC Chairman Sri
Dhiraj Basnet, Sri Bishal Basnet, Sri Umesh Karki, the O.C. of Basugaon
Police Station, D.S.P. and C.I. He also found the accused Sri Gautam
Mandal in the Police Out Post. Then the Police told him that he would have
to go along with them as the accused would led them to recover money .
Then the accused Sri Gautam Mandal led him, Sri Umesh karki, , Sri Diraj
Basnet, Sri Bishal Basnet, the O.C. of Basugaon Police Station, D.S.P.,
Chirang and C.I. to the house of his father-in-law at Vill- Hatisargaon. In
the house of his father-in-law, the accused led them in to the bed room. In
the bed room, the accused asked them to remove bedstead. The bedstead was
removed. Then the accused showed the place where he had kept the money
under the ground. It is in his evidence that then he and others removed the
earth from the place shown by the accused and there after, a polythene bag
full of money was recovered there from. In the bed room of the house, the
money was counted and found Rs-3,29,500/- in Indian Currency. The Police
in the room, seized the money by preparing a seizure list and he put his
signature in the seizure list. He proved the seizure list as Ext-3 and Ext-3(2)
is his signature in it. The seized money were before the court and he proved
the same as Material Ext-1.
P.W.8 Sri Umesh Karki in his evidence stated that his house is
situated by the back side of Dadgiri Police Out Post. On the night of
9.3.2012, he came to know that the wife of S.I. Abdul Mutleb Khandakar,
I/C of Dadgiri Police Out Post had been murdered in the Quarter. On
11.3.2012 at about 8-30 p.m., Sri Dhiraj Basnet, V.C.D.C. Chairman of
village Hatisar Gaon called him over Mobile Phone to come in to Dadgiri
Police Out Post. He came to Dadgiri Police Out Post. At Dadgiri Police
Out Post, he found VCDC Chairman Sri Dhiraj Basnet, Sri Bishal Basnet,
Sri Bhisar Thapa, the O.C. of Basugaon Police Station, C.I., Basugaon,
D.S.P., Chirang and the accused Sri Gautam Mandal. Then the accused Sri
Gautam Mandal stated that he would show the place where the money had
been kept. Then the accused Sri Gautam Mandal led him, Sri Dhiraj Basnet,
Sri Bishar Thapa, Sri Bishal Basnet, the O.C. of Basugaon Police Station,
D.S.P., Chirang and C.I. to the house of his mother-in-law situated in his
village. In the house of his mother-in-law, the accused led them in to
another room. In that room, the accused removed the place of the bedstead
SESSIONS CASE NO – 69/12.
11
where it had been. Then the accused recovered a polythene packet by
digging the earth with in which the money had been kept. Then the money
was counted and found Rs-3,29,500/- in Indian currency. The Police seized
the aforesaid money in the house of the father-in-law of the accused by
preparing a seizure list and he put his signature in the seizure list. He proved
the seizure list as Ext-3 and Ext-3(3) is his signature in it. The seized money
were before the court and he proved the same as Material Ext-1.
15. The evidence adduced by P.W.16 I.O., P.W.6, P.W.7 and
P.W.8 as regards the leading to discovery of money at the instance of the
accused remained unshaken in their cross-examination. I find no reason to
disbelieve their evidence as the evidence adduced by them are cogent,
consistent and inspiring the confidence of the court. The P.W.16 the I.O.
conducted the leading to discovery at the instance of the accused by
following all the procedure of law. The recovery of money amounted to Rs-
3,29,500/- from the bed room of the house of the father-in-law of the
accused was made in pursuant to the statement of the accused under Ext-14.
The part of Ext-14, in so far as it pertains to the confession of the accused, is
inadmissible in evidence under section 26 of the Evidence Act and the
remaining part of Ext-14, which contains the statement of the accused
regarding the concealment of money under the ground which was beneath a
bedstead in the bed room of his father-in-law is admissible under section 27
of the Evidence Act as evidence against the accused and this part of the
statement leads to the discovery of the fact that the money amounted to Rs-
3,29,500/- is concealed in the bed room of the house of the father-in-law of
the accused to his knowledge and it is a relevant fact. Now, if the money
recovered is proved to have been stolen property, the fact discovered is very
relevant.
Here, I take a pause to say that P.W.16 I.O. of the case in his
evidence stated that the accused was apprehended on the same day of
occurrence at night and on the following day in the morning, the accused
confessed before him that he had committed murder of the wife of I/C of
Dadgiri Police Out Post Abdul Mutleb Khandakar in order to take away Rs-
15,000/- from his house and after taking money from the Quarter of Abdul
Mutleb Khandakar, he paid up Rs-15,000/- to Sri Khirode Basumatary of
vill- Khagrabari. The I.O. in his evidence stated that then he went to vill-
Khagrabari in the house of Sri Khirode Basumatary and then Sri Pradip
Basumatary, the Secretary of Self Help Group, Khagrabari handed over Rs-
15,000/- in Bhutan currency to him stating that the accused on 9.3.2012 had
paid the same to them. Then he seized the said money by preparing a
seizure list in presence of witnesses. He proved the seizure list as Ext-4 and
SESSIONS CASE NO – 69/12.
12
Ext-4(4) is his signature in it. The aforesaid statement of the accused except
“giving of Rs-15,000/- to Sri Khirode Basumatary” is confessional
statement made by the accused before the Police while he had been in Police
Custody and as such, it is not admissible in evidence against the accused as
it is hit by section 26 of the Evidence Act. The information given by the
accused that he had paid Rs-15,000/- to Sri Khirode Basumatary and there
after, recovery of the same by the I.O. is admissible in evidence against the
accused. P.W.12 Sri Khirode Basumatary in his evidence stated that on
9.3.2012, the accused repaid the loan of Rs-10,000/- along with the interest
of Rs-5000/- which was taken by his father from their Public Fund and after
receiving the said money, he had handed over the same to Sri Pradip
Basumatary who was the cashier of the Public Fund. P.W.10 Sri Pradip
Basumatary in his evidence also stated that on 9.3.2012, the accused repaid
the loan of Rs-10,000/- along with the interest of Rs-5000/- which was taken
by his father from their Public Fund to Sri Khirode Basumatary and after
receiving the said money, Sri Khirode Basumatary handed over the same to
him. Thus, it is found that the date of murder of the wife of Abdul Mutleb
Khandakar and the date of repayment of loan of Rs-15,000/- by the accused
is the same date ie, 9.3.2012.
16. Let us go to decide who is the owner of the money amounted
to Rs-3,29,500/- that had been recovered by the Police at the instance of
the accused by leading to discovery.
The Defence side examined two witnesses ie, the parents of the
accused to prove the ownership of the accused over the money recovered.
D.W.1 Sri Ganesh Mandal is the father of the accused Sri Gautam Mandal.
D.W.1 in his one line examination-in-chief stated that he had given his son
the accused Sri Gautam Mandal Rs-1,20,000/- in cash for purchasing a
vehicle. He in his cross-examination stated that he had forgotten the year
and date of giving money to his son. He in his cross-examination stated that
he in total had given 30 nos of notes of denomination 500 to the accused.
Therefore, it means that he had given total amount of Rs-15,000/- to the
accused. He in his cross-examination stated that he had given the total
money in Bhutan currency to the accused. But, the Police recovered money
amounted to Rs-3,29,500/- which were all in Indian currency notes. He
further stated that he could not know what the accused had done with the
money. He stated that he had filed the Petition seeking bail for the accused.
But, in the Bail Petition, he had never mentioned that the accused is the
owner of the money recovered. He stated that neither he nor the accused
had filed any petition before the court seeking zimma of the money. He
stated that while the accused was in judicial custody during the stage of
SESSIONS CASE NO – 69/12.
13
investigation of the case, he used to meet with the accused. But, the accused
had never stated that his money had been seized by the Police. He further
stated that he had not stated to the advocate of the accused that he had been
the owner of the seized money. Rather, the advocate of the accused stated to
him that he was the owner of the money. There fore, from his evidence, it is
appeared that he had completely failed to prove that he had given Rs-
1,20,000/- to the accused and the accused is the owner of the money
amounted to Rs-3,29,500/- seized by the Police.
D.W.2 Smti Radha Mandal is the mother of the accused. She in
her one line examination-in-chief stated that the accused Sri Gautam
Mandal is her son. She stated that she had given to the accused Rs-5000/-
each month for a continuous period of 18 months. But, there is nothing in
her evidence when she had given the money to the accused. She in her cross-
examination stated that she runs Tea Stall Business at Dadgiri and earns
profit Rs-1/2 thousand per month from the shop. She in her cross-
examination further stated that she had let in rent some houses. She also
stated that the houses which she kept for letting on rent remained vacant for
six months in every year. So, from her evidence, it is appeared she had no
such earning in every month to spare Rs-5000/- to pay to her son. She in her
cross-examination stated that she could not know what the accused had done
with the money that had been given by her. She stated that when the
accused was remanded to jail, she had come to Jail and met with the accused
and then the accused stated to her that he had kept the money paid by her to
him in safe custody. She stated that the accused had not stated to her where
he had kept the money. From her evidence, it is appeared that she had
completely failed to prove that she had given any money to the accused and
the accused is the owner of the money amounted to Rs-3,29,500/- being
seized by the Police.
From the case record, it is appeared that the occurrence had
taken place on 9.3.2012. The Police started investigation of the case right
from the date of occurrence and submitted the charge sheet of the case on
dated 15.6.2012. During the stage of investigation of the case, no petition
seeking the release of the seized money amounted to Rs-3,29,500/- in favour
of the accused came forward from the side of the accused. But, Abdul
Mutleb Khandakar filed several petitions seeking the release of the seized
money amounted to Rs-3,29,500/- in his favour claiming himself as the
owner of the seized money and the accused person did not file any objection
against the prayer of Abdul Mutleb Khandakar. The case was committed to
this court on 27.6.2012. The evidence of defence side was completed on
16.11.13. The custody of the seized money were given to Abdul Mutleb
SESSIONS CASE NO – 69/12.
14
Khandakar on 27.11.2013. During that period, the accused did not file any
petition before this court seeking the release of the seized money in his
favour claiming himself as the owner of the seized money. Besides this, the
accused did not raise any objection against the Petition filed by Abdul
Mutleb Khandakar seeking release of the seized money in his favour.
The Prosecution side examined as many as 17 witnesses. P.W.1
is Abdul Mutleb Khandakar. The Defence side while cross-examining him,
only gave a suggestion that the money seized by the Police from the
accused, were the money gifted to the accused by one of his relatives which
was denied by him. The Defence side did not adduce any evidence to
probablise the suggestion by examining the person who had gifted the
money to him. The Defence side while cross-examining P.W.6, gave him a
suggestion that the accused is the owner of the seized money which was
denied by him and the defence side failed prove the ownership of the
accused over seized money by examining two D.Ws who are his parents.
The Defence side while cross-examining other Prosecution witnesses, did
not raise any question regarding the ownership of the accused over the
seized money. P.W.16 I.O. is the most vital witness of the case. The Defence
side while cross-examining him, did not raise any question regarding the
ownership of seized money. There was only one line cross-examination of
P.W.16 which was to the effect that he had not sent the knife for
examination in FSL as it was burnt up after the occurrence.
After the completion of Prosecution evidence, the statement of
the accused person was recorded under section 313 Cr.P.C. The accused
person in his aforesaid statement, did not say a word that he is the owner of
the money amounted to Rs-3,29,500/- which was seized by the Police.
Therefore, it is proved beyond all reasonable doubt that the
money amounted to Rs-3,29,500/- which was recovered by the I.O. from the
bed room of the house of the father-in-law of the accused at the instance of
the accused on being led by him, are not belonged to the accused i.e., the
accused was not the owner of the said money. The aforesaid money was
stolen money.
P.W.1 Abdul Mutleb Khandakar in his evidence stated that at the
time of occurrence ie, on 9.3.2012, he was the I/C of Dadgiri Police Out
Post. He had been living along with his wife Jahanara Begum in the Quarter
of Dadgiri Police Out Post. On the date of occurrence at about 8-30 a.m., he
came to Basugaon Police Station leaving his wife alone in the Official
Quarter. He returned back to Dadgiri Police Out Post at about 6-45 p.m. on
SESSIONS CASE NO – 69/12.
15
that day. While he reached in front of his Quarter, then Musstt. Padvan
Bewa, a woman who was running a Betel leaf shop by the side of Dadgiri
Police Out Post informed him that at about 3-00 p.m., the Milk woman had
gone to his house and knocked the door, but, could not get any movement of
his wife. Then he went forward towards his Quarter and found the front
door of his Quarter was locked from out side by a bolt. Then he made the
bolt straight, opened the door and entered in to the Quarter. Then he found
his wife Jahanara Begum had been lying dead on the bed with cut injury
upon the front side of her neck and 3/4 stab injuries upon her abdomen.
There were blood all over the bed. Then he looked around the room and
found his two nos of Trunk were opened. He then looked in to his both
trunks and found Rs-4,00,000/- had been missing from the Trunks. He in his
evidence further stated that on the date of occurrence, there was a Tata Pick
Up Van in the Out Post under requisition. The driver of the requisitioned
Tata Pick Up Van was the accused Sri Gautam Mandal. On the date of
occurrence in the morning, he asked the accused Sri Gautam Mandal to go
driving the requisitioned vehicle along with him at Basugaon Police Station.
But, the accused did not go along with him taking the requisitioned vehicle
on the pretext that he had to go to village- Khagrabari. He in his evidence
stated that for the aforesaid reason, he had strong suspicion upon the
accused that he had committed the murder of his wife. P.W.1 was subjected
to cross-examination. But, the evidence adduced by him remained unshaken
in his cross-examination. The fact that after committing the murder of his
wife, Rupees four lakh were stolen away by breaking open two nos of trunk
from his Quarter remained unshaken in his cross-examination. From the
evidence adduced by P.W.1, it has been proved beyond all reasonable doubt
that after committing the murder of his wife, Rupees four lakh were stolen
away by breaking open two nos of Trunks from his Quarter.
During the investigation stage of the case, P.W.1 Abdul Mutleb
Khandakar filed petition for two times seeking the custody of the money
amounted to Rs-3,44, 500/- which was seized by the Police in connection
with this case raising the plea that he was the owner of the seized money
which was stolen away by the accused from his Quarter after committing
murder of his wife. The I.O. of the case submitted report before the lower
court as called for stating that he had no objection in granting the custody of
the seized money in favour of P.W.1 Abdul Mutleb Khandakar. But, in
both times, the lower court had rejected the prayer of P.W.1 Abdul Mutleb
Khandakar raising only the plea of incomplete investigation. During the
trial stage of the case, P.W.1 Abdul Mutleb Khandakar filed petition before
this court seeking the custody of the money amounted to Rs-3,44, 500/- and
SESSIONS CASE NO – 69/12.
16
accordingly, the custody of the money was given to P.W.1 Abdul Mutleb
Khandakar vide order dated 27.11.2013.
Right from the date of lodging the ejahar with Police Station till
today, no one except P.W.1 Abdul Mutleb Khandakar has come forward
with a petition claiming himself to be the owner of the aforesaid money
seized by the Police.
From the above discussion, the only irresistible inference to
which we have to arrive is that P.W.1 Abdul Mutleb Khandakar is the owner
of the aforesaid amount of money seized by the Police.
The seized money amounted to Rs-3,29,500/- was recovered by
the Police on 11.3.2012 at the instance of the accused ie, by way of leading
to discovery from the bed room of the father-in-law of the accused which
was kept under the ground. As the seized money amounted to Rs-3,29,500/-
was recovered from the house of the father-in-law of the accused on being
shown by the accused, so logically it is inferred that the aforesaid money
was recovered from the possession of the accused person which was stolen
money.
Section 114 of the Evidence Act provides that the Court may
presume the existence of any fact which it thinks likely to have happened,
regard being had to the common course of natural events, human conduct
and public and private business, in their relation to the facts of the particular
case. Illustration (a) to the aforesaid section provides that a man who is in
possession of stolen goods soon after the theft is either the thief or has
received the goods knowing them to be stolen, unless he can account for his
possession. The accused in his statement recorded under section 313
Cr.P.C., failed to give any explanation regarding the aforesaid money how
the same had come in to his hand. He in his aforesaid statement did not
claim the money as his own. During the stage of Defence Evidence, the
Defence side by adducing evidence tried to prove the owner ship of the
accused over the aforesaid money, but failed completely. From the case
record, it is found that the occurrence had taken place on 9.3.2012 and the
seized money was recovered on 11.3.2012 and there is time-lag of just 2
days between the offence and the recovery. Here, it is appropriate to mention
that accused was taken in to custody by the Police on the same day of
occurrence. Here, the recovery of the money is no doubt recent and the
accused had completely failed to give any explanation how he had come into
possession of the stolen money. There fore, it can be inferred that the
accused is a thief who had stolen the aforesaid amount of money. P.W.1
SESSIONS CASE NO – 69/12.
17
Abdul Mutleb Khandakar by adducing evidence had proved that he had kept
the aforesaid money along with other money in two Trunks in a room of his
Quarter and the aforesaid money was stolen away by committing murder
of his wife. There fore, from the aforesaid facts and circumstances, it can be
inferred that it is the accused who had committed the theft of seized money
from the Quarter of P.W.1 Abdul Mutleb Khandakar.
17. Now, the question remains for determination is who had
committed murder of Jahanara Begum?
From the evidence of P.W.1 Abdul Mutleb Khandakar, it is found
that he had been living with his wife Jahanara Begum alone in the official
Quarter at Dadgiri Police Out Post. On the date of occurrence, he leaving his
wife alone in the Quarter went for Basugaon Police Station. In the dusk
when he came back in to his Quarter and entered in to the room, he found
his wife was lying dead on the bedstead in a pool of blood with cut injuries
upon her neck and abdomen. He also found his two trucks were opened and
Rs- 4,00,000/- were stolen away from both the trunks. From his evidence, it
is established that P.W.1 had been living in the official Quarter along with
his wife only and there was no other inmate in the Quarter. On the fateful
day of occurrence, he went for Basugaon Police Station keeping his wife
alone in the Quarter. So, from his evidence, it is established that when the
accused committed theft of money from his Quarter, there was only his wife
Jahanara Begum present in the Quarter. The aforesaid circumstances, led to
the only and one inference that it is the accused who had committed murder
of Jahanara Begum, the wife of P.W.1 before committing of theft in order
to facilitate the commission of theft and also leaving behind no clue of his
committing theft of money from the Quarter. Now, the question arises,
whether such a presumption in a criminal case is permissible. The Hon‟ble
Apex Court in the case of Ganesh Lal: Appellant Vs. State of Rajasthan:
Respondent reported in (2002)1 SCC 731 while dealing with presumption
and failure of the accused to account for incriminating circumstances
observed as under:
“12. Section 114 of the Evidence Act provides that the Court may
presume the existence of any fact which it thinks likely to have happened,
regard being had to the common course of natural events, human conduct
and public, private business, in their relation to facts of the particular case.
Illustration (a) provides that a man who is in possession of stolen goods
soon after the theft may be presumed by the Court to be either the thief or
one who has received the goods knowing them to be stolen, unless he can
account for his possession. The presumption so raised is one of fact rather
SESSIONS CASE NO – 69/12.
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than of law. In the facts and circumstances of a given case relying on the
strength of the presumption the Court may dispense with direct proof of
certain such facts as can be safely presumed to be necessarily existing by
applying the logic and wisdom underlying Section 114. Where offences,
more than one, have taken place as part of one transaction, recent and
unexplained possession of property belonging to deceased may enable a
presumption being raised against the accused that he is guilty not only of
the offence of theft or dacoity but also of other offences forming part of
that transaction.”
P.W.16 I.O. Sri Rupak Kumar Borah in his evidence stated that
on 9.3.2012, he was working as O.C., Basugaon Police Station. On that day
at about 7-20 p.m., he got information from UBC Sri Sankar Mahanayak of
Dadgiri P.P. over phone that the wife of the I/C of Dadgiri P.P. had been
murdered by some body by inflicting injuries in the absence of the I/C. He
made G.D.Entry of the information vide Basugaon P.S. G.D.Entry no-244
Dated 9.3.2012 and immediately proceeded towards the place of occurrence
along with the C.I. He reached at Dadgiri P.P. at about 9-00 p.m. Then he
went to the place of occurrence which is the Quarter of Abdul Mutleb
Khandakar I/C, Dadgiri P.P. In the Quarter, he found the dead body of the
wife of Abdul Mutleb Khandakar lying in a bedstead stained with blood in a
room of the Quarter. He started investigation of the case. He recorded the
statement of Abdul Mutleb Khandakar who in his statement stated that
regarding the commission of the alleged offences, he had strong suspicion
upon the accused Sri Gautam Mandal who at the time of occurrence, was the
driver of Tata Mobile vehicle which was under requisition of Dadgiri P.P. at
that time. He immediately on that night, brought the accused at Dadgiri
P.P. for interrogation. He stated that on the following day in the morning,
the accused confessed before him that he had committed murder of the wife
of Abdul Mutleb Khandakar with a knife and he could show the knife
where he had kept it. Then he recorded the aforesaid statement of the
accused person which he proved as Ext-13 and Ext-13 (1) is his signature in
it. Then the accused led him, Sri Rimo Sen, Abdul Malek Ahmed, Sri
Basanta Kumar Roy, Sri Dhiraj Basnet, C.I. Sri Guman Singh Chetri to the
northern side of the homestead of his father-in-law Late Laxman Thamang
which place was covered with small bushes and betel nut trees. Then the
accused recovered a knife with out handle from the bush in the presence of
witnesses. Then he seized the knife by preparing a seizure list. He proved
the seizure list as Ext-2 and Ext-2(3) is his signature in it.
P.W.2 Sri Dhiraj Basnet, P.W.15 Abdul Malik Ahmed are the
witnesses of leading to discovery of the knife.
SESSIONS CASE NO – 69/12.
19
P.W.2 Sri Dhiraj Basnet in his evidence stated that he is the
Chairman of Hatisar V.C.D.C. and for this reason, the accused Sri Gautam
Mandal had been known to him. The accused used to drive Tata Mobile
Pick Up Van. At the time of occurrence, the accused was driving his vehicle
under Dadgiri P.P. He stated that at the time of occurrence, P.W.1 Abdul
Mutleb Khandakar was the I/C of Dadgiri P.P. On the date of occurrence,
while it was darkening, he came to know that the wife of I/C, Dadgiri P.P.
had been murdered in his Quarter. Then he came to the Quarter of I/C,
Dadgiri P.P. and found his wife lying dead on a bedstead in a room of the
Quarter having injuries upon her neck and abdomen. He stated that he found
the accused Sri Gautam Mandal in the Dadgiri P.P. On the following day at
about 8-00/9-00 a.m. in the morning, he came to Dadgiri P.P. on being
called by the O.C., Basugaon Police Station. Then the accused Sri Gautam
Mandal confessed before O.C., Basugaon P.S., C.I. Sri Gumnam Singh that
he would show the knife which had been used by him in committing the
murder of the wife of Abdul Mutleb Khandakar. Then the accused led the
O.C., Basugaon P.S., C.I. Sri Gumnam Singh, another Police Officer and
him to the back side of the house of his father-in-law which place was
covered with betel nut trees and small bushes and there after, the accused
recovered the knife which was kept in the small bushes. He stated that the
Police seized the Knife in his presence by preparing a seizure list and he put
his signature on the seizure list. He proved the seizure list as Ext-2 and Ext-
2(1) is his signature in it. The seized knife was present before the court. He
proved the sized knife having no handle as Material Ext-2.
Another witness to the leading to discovery of knife is P.W.15
Abdul Malik Ahmed. He in his evidence stated that Abdul Mutleb
Khandakar was the I/C of Dadgiri P.P. at the time of occurrence. He is
Journalist by profession. He came to Dadgiri P.P. on 10.3.2012 on hearing
that a homicide was committed in the Police Quarter of Dadgiri P.P. on the
previous day ie, on 9.3.2012. Then he found the accused in the Police
custody at Dadgiri P.P. Then the O.C., Basugaon Police Station stated to
him that the accused had confessed before him that he had murdered the
wife of Abdul Mutleb Khandakar and the accused also stated that he would
show the weapon by which he had committed the murder of the wife of
Abdul Mutleb Khandakar. He stated that the O.C., Basugaon P.S. had asked
him to make Video recording of the leading to discovery at the instance of
the accused. He stated that then he, O.C., Basugaon Police Station, D.S.P.,
Chirang by one Jeep and the accused, S.P., Chirang , I/C Santipur Police Out
Post by another Jeep came in front of the house of the father-in-law of the
accused person and got down from their respective Jeeps. Then the accused
SESSIONS CASE NO – 69/12.
20
and Police went ahead, he and other people followed them. The accused led
Police to the back side of the house of his father-in-law which was covered
with betel nut trees and small bushes. The accused then recovered a knife
from the small bushes that had been under the betel nut trees. The Police
seized the knife by preparing a seizure list. He put his signature in the
seizure list. Ext-2 is the seizure list and Ext-2(2) is his signature in it.
The evidence adduced by P.W.16 I.O., P.W.2, P.W.15 as regards
the leading to discovery of knife at the instance of the accused remained
unshaken in their cross-examination. I find no reason to disbelieve their
evidence as the evidence adduced by them are cogent, consistent and
inspiring the confidence of the court. P.W.16 the I.O. conducted the leading
to discovery at the instance of the accused by following all the procedure of
law. The recovery of knife from the bushes of the back side of the house
of father-in-law of the accused was made in pursuant to the statement of
the accused under Ext-13. The part of Ext-13, in so far as it pertains to the
confession of the accused, is inadmissible in evidence under section 26 of
the Evidence Act and the remaining part of Ext-13, which contains the
statement of the accused regarding the concealment of knife in the bushes
of the back side of the house of his father-in-law is admissible under section
27 of the Evidence Act as evidence against the accused and this part of the
statement leads to the discovery of the fact that the knife was concealed in
the bushes on the back side of the house of the father-in-law of the accused
to his knowledge and it is a relevant fact. Now, if the knife is proved to have
been used in commission of the murder of the deceased, the fact discovered
is very relevant. P.W.14 Dr. P.K. Doley performed Post Mortem on the dead
body of Jahanara Begum on 10.3.2012. His findings are as follows:-
“ Deep penetrating multiple injuries over right abdomen and deep
cut injury over front of the neck.”
In the opinion of the doctor, death was due to massive
haemorrhage from injuries leading to shock and it is ante-mortem in nature.
From the above injuries as found by the doctor upon the person of
the deceased, no one hesitate to infer that the injuries were caused by a sharp
and pointed weapon. A knife is a both sharp cutting and pointed weapon.
The injuries found upon the person of the deceased can easily be inflicted
by the knife. So, the recovery of the knife at the instance of the accused is a
relevant fact in the case.
SESSIONS CASE NO – 69/12.
21
18. P.W.15 in his evidence stated that he had video recorded the
whole incident of leading to discovery of knife at the instance of accused by
his camera. He stated that he had copied the video recoding from the camera
in to a video cassette. He proved the video cassette as Material Ext-4. The
Video cassette was opened in my official Laptop, but it could not run as it
had been damaged.
19. From the evidence of P.W.1, it is found that on the date of
occurrence, the Tata Mobile Pick up Van of which the accused was the
driver, was under requisition of the Dadgiri P.P. From his evidence, it is
found that on the date of occurrence in the morning, he asked the accused to
go along with him at Basugaon Police Station by driving the requisitioned
vehicle. But, the accused did not go with him on the pretext that he would go
to Khagra bari. P.W.5 Sri Basudev Kisku who is a Home Guard attached at
Dadgiri P.P. in his evidence stated that on date of occurrence in the morning
at about 6-30 a.m., the accused asked him to go with P.W.1 at Basugaon
Police Station. Then he stated to the accused that P.W.1 wanted the accused
to go with him at Basugaon Police Station. But, the accused declined to go
with P.W.1 at Basugaon Police Station on the pretext that he would have to
go to Khagrabari. The evidence adduced by P.W.1 and P.W.5 as
mentioned here in above, remained untouched by the defence side in their
cross-examination and the same may be treated as substantive evidence. As
the accused was the driver of the Tata Mobile Pick Up Van which was
under requisition of Dadgiri P.P. at the time of occurrence, so, it was the
bounden duty of the accused to go with P.W.1 who was the I/C of Dadgiri
P.P. at Basugaon Police Station. As the accused had not gone along with
P.W.1 by driving his vehicle at Basugaon Police Station, so, this is also a
strong circumstance against the accused.
20. P.W.3 Musstt. Padvan Bibi who has a Pan shop in front of
Dadgiri P.P. in her evidence stated that on the date of occurrence, she had
seen the accused playing „ Holy‟ near by the Quarter of P.W.1. P.W.4 Sri
Sankar Mahanayak, Constable of Assam Police attached at Dadgiri P.P. in
his evidence stated that on the date of occurrence at 12-00/12-30 p.m., he
had seen the accused was wandering by the side of the Dadgiri P.P. These
are also the other strong circumstances against the accused.
21. The Apex Court in the case of Sharad Birdhichand Sarada
Vs. State of Maharastra reported in AIR 1984 SC 1622 while dealing with
circumstantial evidence in paragraph-152 laid down 5 golden principles so
as to constitute the panchaseel of the proof of a case based on
SESSIONS CASE NO – 69/12.
22
circumstantial evidence. The five golden principles as laid down by the
Apex court are:
“ (i) The circumstances from which the conclusion of guilt is to be
drawn should be fully established;
(ii)The facts so established should be consistent only with the
hypothesis of the guilt of accused, that is to say, they should not be
explainable on any other hypothesis except that the accused is guilty;
(iii)The circumstances should be of a conclusive nature and tendency;
(iv) They should exclude every possible hypothesis except the one to
be proved, and
(v) There must be a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the innocence of
the accused and must show that in all human probability the act must
have been done by the accused.”
22. In the instant case, all these five principles have been proved
against the accused . The incriminating circumstances, in my view, form a
complete chain and are consistent with no other hypothesis except the guilt
of the accused that the accused caused the death of the deceased Jahanara
Begum in the official Quarter of her husband P.W.1 and after committing
her murder, stolen away Rs- 3,29,500/- in Indian Currency and Rs-15,000/-
in Bhutan currency from the Quarter which had been kept under two
Trunks.
23. From the Post Mortem Report of the deceased Jahanara
Begum, it is found that her death was caused by inflicting deep penetrating
injuries with a sharp cutting weapon on the front side of her neck and over
her abdomen. The way of death of deceased was caused by the accused
person, and the motive for which the death was caused, speak loud and clear
that the accused person had the intention to cause the death of the deceased
Jahananra Begum. That being so, the homicidal death of the deceased
Jahanara Begum comes with in the definition of murder under section 300
IPC. In the above facts and circumstances, it is found that the Prosecution
has been able to bring home the guilt of the accused that he has committed
murder of Jahanara Begum and as such, the guilt of the accused person
under section 302 IPC is found have been proved beyond all reasonable
SESSIONS CASE NO – 69/12.
23
doubt. There fore, I hold the accused person guilty under section 302 IPC
and convict him under section 302 IPC accordingly.
In view of the foregoing discussion, the accused person is held
guilty of the offence under section 380 IPC also and convict him under
section 380 IPC accordingly.
24. Heard the accused person on the point of sentence and I have
recorded his statement in this respect. I have also heard the learned advocate
of both sides on the point of sentence.
25. Judgment pronounced today on this the 14th day of August,
2014 in the open court.
26. Judgment on the question of sentence will be passed on
19.8.2014.
Typed by
(M. A. Choudhury) (M. A. Choudhury)
Sessions Judge, Sessions Judge,
Kokrajhar. Kokrajhar.
SESSIONS CASE NO – 69/12.
24
Date – 19.8.2014.
Judgment of the question of sentence:
27. The accused Sri Gautam Mandal on hearing on the point of
sentence kept mum.
Having considered the submission of the learned advocate of both
sides on the point of sentence and the facts and circumstances of the case, I
am of the considered view that the instant case does not fall within the
category of „Rarest of Rare‟ one and as such, the extreme punishment
described for the offence of murder is not warranted in the instant case.
Since in a capital offence, choice of the court in respect of the
awarding punishment is limited in between the sentence of death and
imprisonment for life, I am left with no other alternative but to choose the
sentence of imprisonment for life which is minimum in the capital offence
under section 302 of IPC.
28. Hence, the accused person is sentenced to suffer Rigorous
Imprisonment for life and to pay fine of Rs-5000/- (Rupees five thousand
only) for offence under section 302 IPC. In default of payment of fine, the
accused person shall suffer Rigorous Imprisonment for six months.
The accused person is also sentenced to suffer Rigorous
Imprisonment for 3 (three) years and to pay a fine of Rs-1,000/- for offence
under section 380 IPC. In default of payment of fine, the accused person
shall suffer Rigorous Imprisonment for one month.
29. The seized money amounted to Rs-3,29,500/- in Indian
currency and Rs-15,000/- in Bhutan currency be given to P.W.1 Md Abdul
Mutleb Khandakar.
Both seized trunks made of C.I. sheet be given to P.W.1 Md Abdul
Mutleb Khandakar.
SESSIONS CASE NO – 69/12.
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The other seized articles be destroyed in due course of time.
30. A free copy of the Judgment be given to the accused person
forthwith.
31. A copy of the Judgment be forwarded to the District Magistrate,
Kokrajhar for information.
32. Given under my hand and the seal of this court on this the 19 th
day of August, 2014.
Typed by
(M. A. Choudhury) (M. A. Choudhury)
Sessions Judge, Sessions Judge,
Kokrajhar. Kokrajhar.
APPENDIX
WITNESSES EXAMINED BY THE PROSECUTION SIDE:
P.W.1 – Abdul Mutleb Khandakar.
P.W.2 – Sri Dhiraj Basnet.
P.W.3 – Musstt. Padvan Bewa.
P.W.4 – Sri Sankar Mahanayak.
P.W.5 – Sri Basudev Kisku.
P.W.6 – Sri Bishal Basnet.
P.W.7 - Sri Bishar Thapa.
P.W.8 - Sri Umesh Karki.
P.W.9 – Smti Rahila Basumatary.
P.W.10 – Sri Pradip Basumatary.
P.W.11 – Sri Nabadip Basumatary.
P.W.12 – Sri Khirode Basumatary.
P.W.13 – Sri Prabat Barman.
SESSIONS CASE NO – 69/12.
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P.W.14 – Dr. P.K. Doley, the M.O. of the case.
P.W.15 – Abdul Malik Ahmed.
P.W.16 – Sri Rupak Kumar Borah, the I.O. of the case.
P.W.17 – Sri Sunmani Saikia, O.C., Basugaon Police Station.
WITNESSES EXAMINED BY THE DEFENCE SIDE :
D.W.1 – Sri Ganesh Mandal.
D.W.2 – Smti Radha Mandal.
DOCUMENTS PRODUCED IN THE CASE:
Ext-1 – Ejahar.
Ext-2 – Seizure list of knife.
Ext-3 – Seizure list of money amounted to Rs-3,29,500/-in Indian
currency.
Ext-4- Seizure list of money amounted to Rs-15,000/- in Bhutan
currency.
Ext-5- Seizure list of two nos of trunk.
Ext-6- Post Mortem Report.
Ext-7- Inquest Report.
Ext-8 – Zimma nama of two nos of trunk.
Ext-9 – Seizure list of one jeans Pant and one Jacket of the accused.
Ext-10- Charge sheet.
Ext-11- Sketch map.
Ext-12- Extract copy of G.D.Entry no- 244 Dated 9.3.2012 of Basugaon
P.S.
Ext-13- Statement of accused before the I.O.
Ext-14- Statement of accused before the I.O.
MATERIALS PRODUCED IN THE CASE :
Material Ext-1- Seized money amounted to Rs-3,29,500/- in Indian
currency.
Material Ext-2 – Seized knife.
Material Ext-3 – Seized money amounted to Rs-15,000/- in Bhutan
currency.
Material Ext-4 – Video Cassette.
(M. A. Choudhury)
SESSIONS CASE NO – 69/12.
27
Sessions Judge,
Kokrajhar.
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