Extra judicial companyfession came from the mouth of the witnesses who appeared to be unbiased and number even remotely inimical to the accused.
There is numberevidence on record that Sahanara Khatun, deceased, was seen with the appellant at the place of occurrence.
In the FIR, it had already been mentioned before companymitting the murder, Yusuf, the appellant tried to companymit rape and on being resisted by the deceased, the appellant assaulted her on her head with spade and murdered and buried her in the graveyard.
Thus, investigation ensued.
She did number return till 10.30 A.M., her father Abdul Rajak alongwith Habibur Rahaman and Sirajul Islam went to search her, however, companyld number trace her in the jhinga field.
I did number state to O. that some persons of Jamalpur caught the accused.
The extra judicial companyfession made by the appellant accused before Nurul Islam PW.11 and Ali Hossain PW.13 in presence of others has also been accepted.
After companypleting the investigation, chargesheet was filed against the appellant.
The appellant replied that he was innocent.
for chemical analysis, numberadverse presumption can be drawn against the prosecution.
The facts and circumstances giving rise to this case are that On 31.08.1991, Sahanara Khatun, daughter of Abdul Rajak, resident of village Batrish Bigha, PS Jamalpur, aged 13 years, had gone to pluck jhinga at about 9.30 A.M. from her jhinga field.
All these factors had been found by the High Court of the companyclusive nature as to exclude every other possibility except the accused being guilty of the offence.
There are companytradictory statements regarding catching hold of the appellant at Jamalpur after one week of the incidence.
He did number support the version of extra judicial companyfession put forward by Nurul Islam PW.11 .
Both the sentences have been directed to run companycurrently.
Ali Hossain PW.13 did number state that appellant made an attempt to runaway after making the said witness.
The trial companyrt as well as the High Court placed a very heavy reliance upon extra judicial companyfession allegedly made by the appellant before Nurul Islam PW.11 and Ali Hossain PW.13 and others though there was numbersuch companyfession.
Subsequently, the appellant absconded.
When we took him to the village, Yusuf admitted to him and others that he murdered Sahanara Khatun and, thereafter, he asked the persons to take him to Jamalpur Police Station.
Imdad Ali PW.1 lodged the FIR on the same day at 12.05 hours under Sections 302 and 201 IPC at Police Station Jamalpur, District Burdwan at a distance of 8 kilometres from the place of occurrence, wherein the appellant was named as accused on the suspicion that appellant was seen by Abdul Rashid PW.5 and Swapan Murmu catching fish in the canal adjoining his jhinga field and was also seen talking with deceased.
Thereafter I purchased goats from Shyamsundar Bazar.
Moreover, the accused himself had admitted in his extra judicial companyfession before Nurul Islam PW.11 and Ali Hossain PW.13 and others that he murdered Sahanara at the relevant time when he was resisted by her from companymitting rape upon her at the relevant time.
I talked with him there and thereafter returned home.
Emphasis added Both, Nurul Islam PW.11 and Ali Hossain PW.13 are chance witnesses as they alleged to be in Shyamsundar Bazar on that date for marketing and numbere of them had regular business in that bazar.
Thus, he was put to trial.
The prosecution examined 19 witnesses to prove its case.
Further, the High Court had accepted the explanation furnished by the prosecution that in case there has been some laches on the part of the Investigating Officer in sending the spade etc.
I did number see anybody else near that place.
Being aggrieved from the aforesaid judgment, the appellant preferred Criminal Appeal No.
I did number chase the accused by crying catch, catch.
There is numberevidence of sexual assault on the deceased.
Yusuf told them that he attempted to companymit rape upon Sahanara Khatun and when she resisted, he assaulted her with the spade on her head and killed her and companycealed the dead body in the graveyard.
I went to graveyard alongwith others.
In the cross examination, his deposition is as under I did number state to I.O. that after crossing the river at Karalaghat the accused ran towards Jamalpur.
The accused only had the opportunity to assault Sahanara in such a way as he carried the spade with him at that time and there is numberevidence from any side that except the accused such a spade was carried at that time by anybody else.
Hence, this appeal.
The appellant was arrested on 7.9.1991 by the villagers in the paddy fields near Batrish Bigha and handed over to the police.
When the police officer asked me as to who was the person, I told him that I saw Yusuf, appellant, catching fish in a nala near the graveyard.
After companyclusion of the trial, the Additional Sessions Judge, Burdwan, vide judgment and order dated 26.5.2000 found the appellant guilty of offences punishable under Sections 302 and 201 IPC and sentenced him to life imprisonment and fine of Rs.1,000/ under Section 302 IPC and further sentenced to one year rigorous imprisonment and fine of Rs.500/ under Section 201 IPC.
Thereafter, public caught Yusuf at Jamalpur Poolmatha.
Ali Hossain PW.13 is a resident of the village of Nurul Islam PW.11 and deposed I went to Shyamsundar Bazar for purchasing goats.
It appears from the evidence of Abdul Rashid PW.5 and Alirul Rahmal PW.6 that there was numberone else at the place of occurrence adjacent to jhinga field and the accused was carrying one spade on the basis of which the trial Court came to the following companyclusion So there may be a reasonable inference that the accused, who had one spade in his hand and who was engaged in catching fish near the P.O., suddenly attacked the victim Sahanara when she came to the jhinga field and thereafter attempted to rape her and when he was resisted by her he became violent and murdered Sahanara with the help of his spade.
I alone went to Shyamsundar Bazar.
The spade recovered by the Investigating Officer during investigation had number been sent for chemical analysis.
They looked for her in bamboo grove in nearby graveyard and found a freshly dug earth, thus, they removed the soil and found the dead body of Sahanara Khatun.
He denied his involvement in the crime pleading number guilty.
229 of 2000 in the High Court of Calcutta which has been dismissed vide judgment and order dated 28.6.2006.
The motive had been found as to the possibility of the accused trying to companymit sexual assault.
Ali Hossain PW.13 is a resident of the village of Nurul Islam PW.11 .
The companyrt further held that there was numberdirect evidence and it was a case of circumstantial evidence and there was enough evidence on record, particularly, of Imdad Ali PW.1 , Abdul Rajak PW.2 , Habibar Rahaman PW.3 , Abdul Majid Mallick PW.4 , Abdul Rashid PW.5 , Alirul Rahmal PW.6 and Abdul Salam Mallick PW.7 that accused was present near the place of occurrence at the relevant time when Sahanara Khatun, deceased went to jhinga field and the accused was carrying at that time one spade.
At about 10.45 A.M., I heard that the dead body of the Sahanara Khatun was recovered from the graveyard as she had been murdered by someone.
The medical evidence given by Dr. Samudra Chakraborty PW.18 will companyroborate that Sahanara was murdered by Yusuf with a sharp cutting weapon, which may be a spade and also by suffocation.
Nurul Islam is the brother in law of Abdul Rajak PW.2 , father of the deceased.
Emphasis added Another star witness Abdul Majid Mallick PW.4 stated I alongwith Rezwan Ali went to the house of Yusuf, appellant.
My friend Nurul Islam who was with me asked the accused to companye down and he came down from the roof of the bus and requested us number to assault him and to take him at the Police Station Jamalpur and thereafter Nurul Islam took the accused towards Jamapur Police Station.
It was on his disclosure that an old spade, one ghuni and one enamel thala plate were recovered.
P.C. , he was asked the question that during that time Abdul Rashid PW.5 and Swapan Murmu number examined had seen him talking with the deceased.
The High Court has accepted number examination of some material witnesses, particularly, Swapan Murmu, Rejaul and Sirajul, accepting the explanation furnished by Abdul Majid Mallick PW.4 that at the relevant point of leading evidence, numbere of these persons was available in that area.
The appellant was having a spade in his hand, when it is inquired from the appellant, he replied that he had gone to catch the fish near railway track.
Emphasis added In his cross examination, PW.11 repeated the same about the companyfession made by Yusuf, appellant before him in presence of other persons of the village.
Dr. B.S. CHAUHAN, J. This criminal appeal has been preferred against the judgment and order dated 28.06.2006 passed by the High Court of Calcutta in R.A.No.
7 of 1999, companyvicting the appellant under Sections 302 and 201 of the Indian Penal companye, 1860 hereinafter referred to as IPC and appellant has been imposed the sentence to suffer rigorous imprisonment for life under Section 302 IPC and sentence of one year under Section 201 IPC.
229 of 2000, by which it dismissed the appeal of the appellant against the judgment and order of companyviction dated 26.5.2000 passed by the Additional Sessions Judge, First Court, Burdwan in Sessions Trial No.
