T.C. Das, J.
1. The appellant who has been convicted by the learned Sessions Judge, Goalpara at Dhubri in G. R. Case No. 153 of 1980 under Section 302, I. P.C, sentencing him to imprisonment for life, has preferred this appeal from jail. The sentence of imprisonment for life was awarded to the appellant for intentionally causing the death of Sahera Khatoon, daughter of Bagu Dewani a resident of Simalabari under Bongaigaon police station.
2. We propose to start with this case by quoting Narotam Singh's case : 1978CriLJ1612 wherein their Lordships of the Supreme Court have observed:
The law of crimes perverts itself on occasions into the crime of law if narrow legalism overwhelms social justice. This criticism applies to the field of penology as well, and so the finer more perceptive and sociologically relevant approach to punishment, when crime has been proved, is to take a holistic, realistic and humanistic size-up action as to promote rehabilitation without offending community conscience.
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Discrepancies do not necessarily demolish testimony delay does not necessarily spell unveracity and tortured technicalities do not necessarily upset conviction when the Court has had a perspicacious, sensitive and correctly oriented view of the evidence and probabilities to reach the conclusion it did. Proof of guilt is sustained despite little infirmities, tossing peccadilloes and peripheral probative shortfalls. The 'sacred cows' of shadowy doubts and marginal mistakes, processual or other, cannot deter, the Court from punishing crime where it has been sensibly and substantially brought home.
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The facts, more flabbergasting than fantasy present themselves in this criminal appeal when we turn to the story narrated by the prosecution which has culminated in the conviction of the accused.
3. The story as put forth by the prosecution was that on 10-2-1980 at 8.30 A. M. the appellant Samsul assaulted Sahera Khatoon a 13 year old girl and the daughter of P. W. 4 Bagu Shaikh with an axe on her head and stomach which resulted fatal injury to Sahera. The occurrence took place at the residence of Bagu Shaikh at that hour of the morning and according to the prosecution witnesses, the appellant Samsul entered the house of Bagu Shaikh in his absence and assaulted Sahera with an axe. On receipt of axe blows Sahera shouted, whereupon, several people including those cited as prosecution witnesses came to the place of occurrence. P. W. 5 Samartban Nessa the eldest sister of the deceased Sahera rushed to the house where Sahera was assaulted by 'the appellant and as the door was closed, she peeped through the window, and saw the accused Samsul inflicting axe blows on Sahera P. W. 5 pushed the door and saw Sahera writhing on the ground. The father Bagu Shaikh also came inside the house and tried to snatch away the axe from the hands of the accused, The appellant-accused was apprehended by the people who arrived at the place of occurrence and father snatching away the axe, he was tied up for the purpose of handing over to the police. P. W. 3 Abdul Khalek, a grand-son of Bagu Shaikh who was informed by P. W 7. Nur Hussain about the incident, rushed to the house of Bagu Shaikh where occurrence took place and thereafter went to Bongaigaon Police Station and lodged the ejahar with the Officer-in-charge of Bongaigaon Police Station on the same date at about 11.30 A.M. The Police Officer of Bongaigaon Police Station registered a case on the basis of the ejahar, went to the place of occurrence arrested the accused and investigated the matter. After investigation, a charge-sheet was followed and the accused was tied up to face the trial under Section 302, I.P.C. in the Court of Sessions Judge, Goalpara at Dhubri. The further story appears to be that prior to the occurrence, the accused was engaged as servant of Bagu Saikh and while he was working in the house of Bagu Shaikh, he fell in love with the deceased and wanted to marry her. Her father did not agree to the said proposal and being furious for such an unholy affairs of the accused turned him out and thereafter engaged P. W. 7 Nur Hussain as his servant. On the previous night of the occurrence, the accused came to the house of Bagu Shaikh and stayed there for the whole night with P. W. 7 Nur Hussain who was engaged as servant of Bagu Shaikh at the relevant time. On the day of occurrence at about 8.30 A.M., it was alleged by the prosecution that in absence of Bagu Shaikh the accused entered into the house where Sahera Khatoon stayed and thereafter the ghastly murder took place.
4. In course of trial, the prosecution examined as many as 12 witnesses including the doctor who held autopsy on the dead body of the deceased as well as the Investigating Officer who investigated the matter and recorded statements of the witnesses. The learned Sessions Judge noticed that though the prosecution witnesses except Sarnartaban Nessa were not eye-witnesses to the occurrence but there were other impelling circumstances in support of the prosecution story and to connect the accused with the guilt. Apart from the evidence of P. W. 5 (Samartban Nessa) and other circumstances, the learned Sessions Judge also considered the statement of the accused recorded under Section 313, Criminal P.C. and on consideration of the entire evidence on record, concluded that the prosecution could prove the guilt of the accused beyond all reasonable doubt and convicted the accused under Section 302. Penal Code, and sentenced him to imprisonment for life.
5. Mr. P. Deka who has appeared as amicus curiae to defend the case of the appellant has submitted that the prosecution has failed to prove the guilt of the accused and the facts stated by the appellant if considered to be true, the appellant cannot be convicted inasmuch as it would be apparent that Bagu Shaikh, the father of the victim is the real culprit to commit the murder of his daughter Sahera Khatoon, The learned Counsel has further submitted that there is no eye-witness to the occurrence and the story advanced by P. W. 5 in, her evidence is highly improbable, unrealistic and concoction of facts. If the evidence is read as a whole as stated by the learned Counsel, P. W. 5 cannot be stated to be an eye-witness to the occurrence. She has suppressed the material facts only to save Bagu Shaikh and to implead the appellant as accused as he was deeply in love with the deceased which could not be tolerated by Bagu Shaikh. Therefore, Bagu Shaikh wanted to kill the appellant who happened to be there inside the room where the deceased was staying at that hour of the day. The third submission of the learned Counsel is that there is no such circumstantial evidence to connect the accused with the offence and that the assault alleged to have been committed by the appellant as stated by P, W. 5 differs from the medical evidence as to the injuries found on the dead body of the victim. The discrepancies as submitted by Mr. Deka appear to be such that the accused is at least entitled to the benefit of doubt, if not clear acquittal. The last submission of Mr. Deka is that the prosecution has not examined the material witnesses namely, Ashar Ali and Kurban who, according to the witnesses, arrived at the place of occurrence and caught hold of the accused and tied him up to a tree at the outside of the house. There is no explanation as stated by the learned Counsel, forwarded by the prosecution as to why these two material witnesses were not examined and the reason being that they might have stated the real facts about the person who inflicted the injury on the person of Sahera as a result of which she succumbed to the injury.
6. Mr. G. Sarma the learned Public Prosecutor on the other hand has submitted that there is no reason to disbelieve the evidence of P. W. 5 who has clearly stated that she saw the appellant Samsul assaulting Sahera at the time of occurrence. Other witnesses had supported P. W. 5 on material particulars though they were not strictly eyewitnesses. Maham Ali P, W. 8 has also stated that he saw the struggling for the axe between Bagu and Samsul. Mr. Sarma has further submitted that on scanning the evidence on record as a whole, it is amply proved that the appellant caused fatal injury to Sahera as she declined to marry the accused who gave the proposal of marriage to Bagu Shaikh. This fact, as stated by the learned Counsel, has been proved beyond all reasonable doubt by the prosecution. The evidence of P. W. 1 who held autopsy on the dead body of Sahera, found that the injury inflicted on her head was sufficient to cause death. Therefore, the learned Counsel has submitted that the conclusion reached by the learned Sessions Judge is neither irrational nor untenable. Therefore, as submitted by the learned Counsel, that there being no infirmity nor any illegality in the impugned judgment, it may not be interfered with by this Court.
7. To appreciate the rival contentions of the learned Counsel of the parties, let us now consider the evidence ourselves to ascertain whether the finding of the learned Sessions Judge can be disturbed or not.
8. There is no dispute about the death of Sahera Khatoon. P W 1 Dr. J. N. Chakraborty who held the post mortem examination on the dead body found the following injuries:
(1) One incised wound over the left parietal region or the skull causing damage to the skull bone after the brain. It is gaping with size of 4' x 1' x brain matter Soft tissues were stained with blood clots.
(2) One abrasion seen over the left breast.
(3) One cut injury seen over the left side of the upper abdomen size 3' x ' x skin.
(4) Small abrasions also seen over the left thigh.
The injuries were antemortem and in the opinion of P. W. 1, the death was due to the head injury sustained by the deceased which was caused by an axe blow. While the death has not been denied by the defence the only question left for our consideration is to see whether the accused inflicted the injuries on the person of Sahera who instantaneously succumbed to the injuries. In this respect we will have to consider the evidence of other witnesses. PW 2 is the writer of F.I.R. who stated that he wrote the ejahar as per version of Abdul Khalek. P. W. 3 is the informant who lodged the ejahar written by P. W. 2 stated in his evidence that Nur Hussain P. W. 7 informed him that Samsul had killed Sahera, He further stated that he saw injuries on the head and in the abdomen and that on being asked to lodge the ejahar he went to the Police Station and lodged the ejahar about the incident. Defence could not bring any material to destroy the testimony of this witness. P. W. 4 is Bagu Shaikh the unfortunate father of the victim. He has stated:
Sahera died about 1 year 2 months before. Samsul killed her. I was weeding out the chilly-plant nearby. There are two rooms. My house is to the north, At about 8 A. M. having heard hulla I came on running and saw Sahera lying on the ground in my living room bis-meared with blood. There Shamsul was standing with an axe in his hand. I saw my daughters Samart and Jaigun. He was holding the axe and in the meantime I caught hold of him. But I could not snatch away the axe. Then my son Ashar and grandson Mahem came and snatched away the axe. Then he took a sickle from the wall and told that he would commit suicide. At that time mother of Sahera was not present in the house. Ashar and Mahem snatched away the sickle from him and tied him to a tree. Many village people came in.
In cross-examination he has stated that the.accused gave the proposal to his wife for Sahera's marriage with him. However, he has denied the story of love affairs between Samsul and Sahera. No material discrepancies could be brought by the defence in the cross-examination of P. W. 4. The next important witness is P. W. 5 Samartban Nessa. She has stated in the evidence:
I was preparing my meal at my home. At that time my sister-in-law Khudaya also was in another cookshade. In the meantime I heard Sahera's shouting '1 am killed.
I went on running. As the door was closed I peeped through the window and saw that Samsul was assaulting Sahera. Then I pushed the door. When the door opened I saw Sahera writhing on the ground. Jaygun came in the meantime. Both of us raised alarm. Having heard our alarm our father Bagu came in My father snatched away the axe. Mahem and my elder brother Ashar came, caught hold of Samsul and tied him up at outside. Jaygun and I brought Sahera outside and fed her water. She died. I saw injuries in her head and abdomen.
It may be noted here that about snatching of the axe, the version of P. W. 4 and P. W. 5 appears to be contradictory. This may not be considered as a material fact as because it is most likely that when P. W. 5 saw her sister dead, at that time she could not ascertain as to who actually snatched the axe from the accused who was holding the same in his hand after causing assault to Sahera. In cross-examination this witness has denied that Sahera ever prepared to go with the accused though the accused proposed to marry Sahera. She has further denied the suggestion made by the defence that Sahera stabbed herself in her abdomen, However, in cross-examination she stated that she did not see the axe blow on the head but she saw herself the assault caused on Sahera with axe in the abdomen. In her evidence we find that she has seen the accused holding an axe in his hand, and inflicted injuries to the victim. P. W. 6 Jaygun Nessa is another sister of Sahera. She has stated that Samsul was standing with an axe in his hand and Sahera besmeared with blood. She saw first P.W. 5 there and thereafter her father came to the room where the occurrence took place. She further stated that her father wanted to snatch away the axe from the accused but could not and in the meantime P. W. 8 Mahem Ali, Ashar and Kurban arrived and tied up Samsul to a tree. She has stated in her evidence: 'I wanted to marry but has not given in marriage and so killed her'. However, in cross-examination she has stated that she did not see the act of assault. She has further stated in cross-examination that there had been a struggle between her father and Samsul for the possession of the axe. She had denied the defence suggestion that her father wanted to assault Samsul and at that time the deceased went to his rescue and the axe blow fell on her head. Nur Hussain has been examined as P. W. 7. He is also not an eye-witness but he has stated that the accused was the servant in the house of Bagu for six months and on the night of occurrence when P. W. 7 went to bed after night meal, the accused came in and awoke him up and said that he came from Bongaigaon witnessing a cinema show and wanted to sleep in the room of P. W. 7. This witness further stated that on the following morning he went for ploughing when the accused was still sleeping The further evidence is that on hearing hullah he came to the place of occurrence and saw Sahera lying dead. The defence cross-examined this witness at length but could not get any relevant and material contradiction in the testimony of this witness. Rather it has been found in cross-examination of the witness that the victim was not a mature girl. The next witness is Mahem Ali P. W. 8 who has stated that he saw the struggle between Bagu and Samsul for possession of the axe and on arrival of Ashar, this witness along with Ashar wanted to snatch the axe from the possession of the accused but he himself threw it away. This witness is no doubt son-in-law of Bagu Shaikh. He is not an eye-witness to the occurrence but came later on and narrated the entire story about the incident. No material discrepancy could be gathered from the evidence of this witness. Other P. Ws. namely P. W. 9 and P. W. 10 are not very much material in the case. P. W. 9 came later on to the place of occurrence being the village headman and ascertained the facts from the mouth of witnesses. Similarly, P. W. 10 Ranjeet Kr, Dhar is a photographer who took some snaps of the victims and particularly the injured portion. P. W. 11 is a Constable who identified the dead body to the doctor. Kameswar Deka, P. W. 12 is a Police Officer of the Police Station where ejahar was lodged He recorded statement of the witnesses and submitted charge-sheet after completion of investigation.
9. The accused Samsul in his statement recorded under Section 313, Cr. P.C. stated that he was in love with Sahera wanted to marry her but her father Bagu got angry at his proposal. On the day of occurrence he went to Bagu's house and asked for money he was to receive for rendering his services while he worked as a domestic servant of Bagu Shaikh. He stated that on his proposal of marriage with Sahera, her father Bagu got angry and drove him out of his house without paying any money. On the day of occurrence, in the morning, he again asked Bagu for money and in the meantime Sahera came and told her father that she would go with the accused on that very day, Bagu got angry and slapped her. Being slapped she entered in the house and told that she would commit suicide. Thereafter the accused, as stated by him, went inside the house and saw Sahera took a lathi of betelnut tree which was snatched away by him. Thereafter Bagu came running inside the room with an axe in his hand and tried to assault Samsul whereupon Sahera intervened and the axe fell on Sahera's head. The accused further stated that Bagu told that he would finish his daughter first and then the accused and saying so, Bagu dealt another axe blow in Sahera's abdomen. As the accused came out of the room, Bagu threw the axe on his hand. Ashar and Mahem apprehended him outside. The above version of the accused cannot be believed as because, if the story is considered to be true, it is not humanly possible for the father to give the second blow on the abdomen of the girl after she sustained a severe head mjury by the axe blow alleged to have been caused by the father. The story stated by the accused centres round a love affair between him and Sahera. The father will not agree if a daughter 13 years old is to be given in marriage to a servant who was trusted by his master once while he was offered with a job to work under the master. Here is a story where a trusted, servant became rackless and ran amok after the daughter of his master. The witnesses for the prosecution have further denied this fact that there was any love affair between the deceased and the accused. The story advanced by the defence cannot be taken to be true on the face of the evidence and the circumstances leading to the incident where a girl of tender age had to be a victim.
10. We have scanned the testimony of the witnesses and after hearing the learned Counsel of the parties and on going through the impugned judgment, we are not in a position to keep ourselves away from the net conclusion arrived at by the learned Sessions Judge. The discrepancies as shown by the learned Counsel for the appellant in the testimony of the witnesses are not material to destroy the substratum of prosecution story nor those can be stated as material discrepancies to disbelieve the testimony of the witnesses. In our opinion the prosecution has proved the guilt of the accused beyond all reasonable doubt. We are satisfied on perusal of records and on hearing the learned Counsel of the parties that there is hardly any material to hold that the accused is not the person to inflict such fatal injuries on the person of the deceased. No other contention has been raised before us by Mr. Deka learned Counsel for the appellant save and except those narrated in the earlier part of the judgment. We therefore, hold that there is no merit in the appeal.
11. In the result the appeal is dismissed.
K. Lahiri, J.
12. I agree with the conclusion reached and given. This will form part of the judgment and we will sign in due course.
13. The manner in which Mr. Deka, a young counsel has exhibited in the instant case was real pleasure to us. He has performed his duties diligently and faithfully to the best of his abilities which may be compared with any able counsel.
14. As Mr. Deka has appeared precisely as State defence, he shall be entitled to the fees of Rs. 85/- per diem for his appearance for 4 days.