# MD. ANOWAR HUSSAIN v. STATE OF ASSAM

- **Citation:** [2022] 18 S.C.R. 721
- **Court:** Supreme Court of India
- **Decided:** 2022-10-13
- **Case number:** Criminal Appeal No. 414 of 2019
- **Bench:** Dinesh Maheshwari, Aniruddha Bose
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/md-anowar-hussain-v-state-of-assam-36143
- **Pages:** 41

## Headnote

Penal Code, 1860 - s.302 - Circumstantial Evidence -
Evidence Act, 1872 - s.106 - Appellant was held guilty of the offence
u/s.302 for murder of his wife and was awarded the punishment of
imprisonment for life - On appeal, held: Victim was none other
than the wife of the appellant and was living with him - Thus, the
basic fact as to when did he part with the company of his wife was
within the knowledge of the appellant alone however, he explained
nothing in that regard - When the appellant's wife was found killed
with the dead body carrying several injuries and the cause of death
having been asphyxia due to throttling, the appellant was required
to explain such injuries, which the deceased sustained while living
with him in the same dwelling house - Again, there was no
explanation from him - If his wife, who was residing with him, had
been so ill as to be taken to hospital, the facts in that regard were
also especially within the knowledge of the appellant and he was
required to explain the nature of ailment as also the mode and manner
by which she was admitted to the hospital - But, there was no
explanation on these aspects from the appellant - Further, if his
wife had died and still he had gone to some other place, the reason
for doing so was also especially within the knowledge of the
appellant alone - The reason as assigned by him (about his own
illness) is found to be far away from truth - Prosecution has
discharged its primary burden of bringing home cogent
circumstances pointing towards the guilt of the appellant - All the
facts and factors, which ought to be in the knowledge of the
appellant, are either not clarified or the explanation given by the
appellant turns out to be false - Hence, such omission coupled with
falsehood indeed provide additional links in the chain of
circumstances - The falsehood cooked up by the witnesses
(regarding illness and hospitalisation of the victim) and readily
[2022] 18 S.C.R. 721
721
A
B
C
D
E
F
G
H
722
SUPREME COURT REPORTS
[2022] 18 S.C.R.
accepted by the appellant coupled with the undischarged burden
of s.106 of the Evidence Act provide such strong links in this matter
that the chain of circumstances is complete, leading to the conclusion
on the guilt of the appellant beyond any doubt - Concurrent findings
do not call for interference in this case - Constitution of India -
Article 136.
Trimukh Maroti Kirkan v. State of Maharashtra (2006)
10 SCC 681 : [2006] 7 Suppl. SCR 156; Sharad
Birdhichand Sarda v. State of Maharashtra (1984) 4
SCC 116 : [1985] 1 SCR 88; Balaji Gunthu Dhule v.
State of Maharashtra (2012) 11 SCC 685 : [2012]
7 SCR 577; Nagendra Sah v. State of Bihar (2021) 10
SCC 725; Gargi v. State of Haryana (2019) 9 SCC 738
: [2019] 13 SCR 1; Shivaji Chintappa Patil v. State of
Maharashtra
(2021) 3 SCALE 384 : (2021)
5 SCC 626; Satye Singh & Anr. v. State of Uttarakhand
(2022) 3 SCALE 534 : (2022) 5 SCC 438; Anwar Ali
and Anr. v. State of Himachal Pradesh (2020) 10 SCC
166 : [2020] 9 SCR 878; Jose Alias Pappachan v. SubInspector of Police, Koyilandy and Anr. (2016) 10 SCC
519 : [2016] 8 SCR 115; Sarwan Singh v. State of
Punjab AIR 1957 SC 637 : [1957] SCR 953; Trimuk
Maroti Kirkan v. State of Maharashtra (2006) 10 SCC
681 : [2006] 7 Suppl. SCR 156; Alber Oraon v. State
of Jharkhand (2014) 12 SCC 306 : [2014] 9 SCR 330;
Sudru v. State of Chhattisgarh (2019) 8 SCC 333;
Ujjagar Singh v. State of Punjab (2007) 13 SCC 90 :
[2007] 13 SCR 653; Vivek Kalra v. State of Rajasthan
(2014) 12 SCC 439 : [2013] 1 SCR 1070; Pappu v.
The State of Uttar Pradesh (2022) SCC OnLine SC
176; Hanumant v. State of Madhya Pradesh AIR 1952
SC 343 : [1952] SCR 1091; Sabitri Samantaray v. State
of Odisha (2022) SCC OnLine SC 673 - referred to.
Case Law Reference
[2006] 7 Suppl. SCR 156
referred to
Para 8.2
[1985] 1 SCR 88
referred to
Para 9.5
[2012] 7 SCR 577
referred to
Para 9.5
A
B
C
D
E
F
G
H
723
[2019] 13 SCR 1
referred to
Para 9.6
(2021) 5 SCC 626
referred to
Para 9.6
[2020] 9 SCR 878
referred to
Pa

## Text

_Characters 0–39,974 of 93,693. This is a partial read: ask again with offset=39974 for what follows._

A
B
C
D
E
F
G
H
721
MD. ANOWAR HUSSAIN
v.
STATE OF ASSAM
(Criminal Appeal No. 414 of 2019)
OCTOBER 13, 2022
[DINESH MAHESHWARI AND ANIRUDDHA BOSE, JJ.]
Penal Code, 1860 - s.302 - Circumstantial Evidence -
Evidence Act, 1872 - s.106 - Appellant was held guilty of the offence
u/s.302 for murder of his wife and was awarded the punishment of
imprisonment for life - On appeal, held: Victim was none other
than the wife of the appellant and was living with him - Thus, the
basic fact as to when did he part with the company of his wife was
within the knowledge of the appellant alone however, he explained
nothing in that regard - When the appellant's wife was found killed
with the dead body carrying several injuries and the cause of death
having been asphyxia due to throttling, the appellant was required
to explain such injuries, which the deceased sustained while living
with him in the same dwelling house - Again, there was no
explanation from him - If his wife, who was residing with him, had
been so ill as to be taken to hospital, the facts in that regard were
also especially within the knowledge of the appellant and he was
required to explain the nature of ailment as also the mode and manner
by which she was admitted to the hospital - But, there was no
explanation on these aspects from the appellant - Further, if his
wife had died and still he had gone to some other place, the reason
for doing so was also especially within the knowledge of the
appellant alone - The reason as assigned by him (about his own
illness) is found to be far away from truth - Prosecution has
discharged its primary burden of bringing home cogent
circumstances pointing towards the guilt of the appellant - All the
facts and factors, which ought to be in the knowledge of the
appellant, are either not clarified or the explanation given by the
appellant turns out to be false - Hence, such omission coupled with
falsehood indeed provide additional links in the chain of
circumstances - The falsehood cooked up by the witnesses
(regarding illness and hospitalisation of the victim) and readily
[2022] 18 S.C.R. 721
721
A
B
C
D
E
F
G
H
722
SUPREME COURT REPORTS
[2022] 18 S.C.R.
accepted by the appellant coupled with the undischarged burden
of s.106 of the Evidence Act provide such strong links in this matter
that the chain of circumstances is complete, leading to the conclusion
on the guilt of the appellant beyond any doubt - Concurrent findings
do not call for interference in this case - Constitution of India -
Article 136.
Trimukh Maroti Kirkan v. State of Maharashtra (2006)
10 SCC 681 : [2006] 7 Suppl. SCR 156; Sharad
Birdhichand Sarda v. State of Maharashtra (1984) 4
SCC 116 : [1985] 1 SCR 88; Balaji Gunthu Dhule v.
State of Maharashtra (2012) 11 SCC 685 : [2012]
7 SCR 577; Nagendra Sah v. State of Bihar (2021) 10
SCC 725; Gargi v. State of Haryana (2019) 9 SCC 738
: [2019] 13 SCR 1; Shivaji Chintappa Patil v. State of
Maharashtra
(2021) 3 SCALE 384 : (2021)
5 SCC 626; Satye Singh & Anr. v. State of Uttarakhand
(2022) 3 SCALE 534 : (2022) 5 SCC 438; Anwar Ali
and Anr. v. State of Himachal Pradesh (2020) 10 SCC
166 : [2020] 9 SCR 878; Jose Alias Pappachan v. SubInspector of Police, Koyilandy and Anr. (2016) 10 SCC
519 : [2016] 8 SCR 115; Sarwan Singh v. State of
Punjab AIR 1957 SC 637 : [1957] SCR 953; Trimuk
Maroti Kirkan v. State of Maharashtra (2006) 10 SCC
681 : [2006] 7 Suppl. SCR 156; Alber Oraon v. State
of Jharkhand (2014) 12 SCC 306 : [2014] 9 SCR 330;
Sudru v. State of Chhattisgarh (2019) 8 SCC 333;
Ujjagar Singh v. State of Punjab (2007) 13 SCC 90 :
[2007] 13 SCR 653; Vivek Kalra v. State of Rajasthan
(2014) 12 SCC 439 : [2013] 1 SCR 1070; Pappu v.
The State of Uttar Pradesh (2022) SCC OnLine SC
176; Hanumant v. State of Madhya Pradesh AIR 1952
SC 343 : [1952] SCR 1091; Sabitri Samantaray v. State
of Odisha (2022) SCC OnLine SC 673 - referred to.
Case Law Reference
[2006] 7 Suppl. SCR 156
referred to
Para 8.2
[1985] 1 SCR 88
referred to
Para 9.5
[2012] 7 SCR 577
referred to
Para 9.5
A
B
C
D
E
F
G
H
723
[2019] 13 SCR 1
referred to
Para 9.6
(2021) 5 SCC 626
referred to
Para 9.6
[2020] 9 SCR 878
referred to
Para 9.7
[2016] 8 SCR 115
referred to
Para 9.8
[1957] SCR 953
referred to
Para 9.8
[2006] 7 Suppl. SCR 156
referred to
Para 10.2
[2014] 9 SCR 330
referred to
Para 10.4
[2007] 13 SCR 653
referred to
Para 10.5
[2013] 1 SCR 1070
referred to
Para 10.5
[1952] SCR 1091
referred to
Para 12.1
(2021) 10 SCC 725
referred to
Para 9.5
(2019) 8 SCC 333
referred to
Para 12.8
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
414 of 2019.
From the Judgment and Order dated 19.08.2016 of the High Court
of Gauhati at Gauhati in Criminal Appeal (J) No. 100 of 2013.
S. Mahendran, Adv. for the Appellant.
Shuvodeep Roy, Ishaan Borthakyr, Advs. for the Respondent.
The Judgment of the Court was delivered by
DINESH MAHESHWARI, J.
Table of Contents*
Preliminary and brief outline ................................................ 2
Relevant factual and background aspects........................... 6
Prosecution Evidence ............................................................. 8
Stand of the appellant .......................................................... 14
Trial Court found the appellant guilty and awarded
life imprisonment..................................................................15
High Court dismissed the appeal filed by the appellant .. 21
Rival Submissions ................................................................. 23
The scope and width of these appeals ................................ 30
MD. ANOWAR HUSSAIN v. STATE OF ASSAM
*Ed. Note : Pagination in the Table of contents is as per the original Judgment
A
B
C
D
E
F
G
H
724
SUPREME COURT REPORTS
[2022] 18 S.C.R.
The principles applicable to this case ................................ 31
Concurrent findings do not call for interference in this
case ........................................................................................ 43
Preliminary and brief outline
1. This appeal is directed against the judgment and order dated
19.08.2016 in Criminal Appeal No. 100 (J) of 2013, whereby the Gauhati
High Court dismissed the appeal against the judgment and order dated
18.07.2013/25.07.2013, as passed by the Court of Sessions, Goalpara in
Sessions Case No. 96 of 2012, whereby the appellant was held guilty of
the offence under Section 302 of the Indian Penal Code, 18601 and was
awarded the punishment of imprisonment for life and fine of Rs.5,000/-
with default stipulations.
2. Before dealing with the matter in necessary details, we may
draw a brief outline to indicate the contours of the forthcoming discussion.
2.1. The prosecution case, based on circumstantial evidence, has
been that the victim, being the 20-year-old wife of appellant, died on
22.10.2010 while residing with the appellant; and that her dead body
was brought to the police station by her grandfather PW-1 Md. Akbar
Ali, who made an ejahar (Ex. 1) that ever since marriage the deceased
was subjected to physical and mental torture by the appellant, who caused
her death by inflicting grievous injuries and his family members were
involved in the conspiracy. As per the report (Ex. 2), in the inquest carried
out at the police station in the presence of informant and other witnesses,
injuries were noticed around the eyes, cheeks and neck of the deceased.
The First Information Report2 was registered for offences pertaining to
Sections 498-A, 302 and 120-B IPC on the ejahar so made by PW-1 and
the dead body was sent for post-mortem examination. As per the postmortem report (Ex. 4), the dead body carried several injuries and the
cause of death had been asphyxia due to throttling.
2.2. It has been the case of prosecution that the appellant was
absconding after the incident and was arrested two days later, at a distant
place. After investigation, the charge-sheet was filed against the appellant
for the offence punishable under Section 302 IPC whereas the other
accused persons were let off for want of positive evidence. One of the
1 'IPC', for short.
2 'FIR', for short.
A
B
C
D
E
F
G
H
725
peculiar features of the case had been that the private witnesses, PW-1
to PW-6, did not support the prosecution and they essentially suggested
that the victim was suffering from illness and died in hospital, where she
was taken for treatment. The appellant himself, in his statement under
Section 313 of the Code of Criminal Procedure, 19733, endorsed the
statements so made by PW-1 to PW-6 and maintained that his wife died
in the hospital. He also stated that he had gone to bring medicines for
himself due to illness and was arrested by the police at Borabara.
2.3. The Trial Court disbelieved the story put forward by the private
witnesses and by the appellant about demise of the victim in hospital,
particularly with reference to the inquest report drawn at the police
station, duly signed by PW-1 to PW-4 and also with reference to the
other circumstances, as established in the testimony of the Investigating
Officer4 PW-7 Anowar Hussain as also PW-8 Dr. Madhab Kr. Rahang.
The Trial Court also found that the accused-appellant came out with a
false plea of having gone to the other place to get medicines though no
such medicines were found in his pocket; and he failed to explain the
cause of homicidal death of his wife, who was living with him prior to
her death. Thus, the appellant was held guilty of the offence under Section
302 IPC on the basis of the chain of circumstances proving his guilt and
was awarded the punishment as noted above. The High Court also
proceeded with the considerations that weighed with the Trial Court
while further observing that when the appellant failed to offer proper
explanation to the incriminating circumstances or the explanation offered
by him was found to be untrue, it became an additional link to complete
the chain of circumstances.
2.4. In challenge to the conviction, it has been essentially contended
on behalf of the appellant that the consistent assertions of witnesses
PW-1 to PW-6 that the deceased died in hospital due to illness cannot be
ignored, given that they have not been declared hostile or cross-examined
by the prosecution; that the inquest report was unreliable because it was
not proved as to from where the dead body was brought to the police
station; that the date of arrest of the appellant is questionable with
reference to the overwriting in arrest memo; that the place of incident
has not been proved because the site plan (Ex. 3) was not enclosed with
the charge-sheet; that the medical evidence alone is not decisive of the
3 'CrPC', for short.
4 'IO', for short.
MD. ANOWAR HUSSAIN v. STATE OF ASSAM
[DINESH MAHESHWARI, J.]
A
B
C
D
E
F
G
H
726
SUPREME COURT REPORTS
[2022] 18 S.C.R.
matter; that non-explanation or falsity of explanation as required under
Section 106 of the Indian Evidence Act, 18725, cannot be a ground for
conviction; and that the prosecution has failed to prove motive. On the
other hand, it is contended on behalf of the respondent-State that when
the deceased was the wife of the appellant and they were living together,
burden was heavy upon the appellant to explain the cause of unnatural
death of his wife, which he had failed to discharge. It has also been
contended that the appellant was absconding after the incident and was
arrested two days later; and the plea of alibi with reference to his going
to other place for purchasing medicines has not been proved. It has
further been contended that the depositions of PW-1 to PW-6 as regards
the alleged illness and hospitalisation of the deceased need to be rejected
because of want of corroborative evidence and then, being falsified by
the inquest report drawn at the police station. Thus, according to the
respondent-State, the concurrent findings recorded in this case against
the appellant call for no interference.
Relevant factual and background aspects
3. With reference to the outline as above and looking to the
questions arising for determination in this appeal, the relevant factual
and background aspects could be noticed, in brief, as follows:
3.1. As per the prosecution case, the deceased Samina Begum
was married to the appellant about 3 years prior to the date of the incident
and was living with the appellant in village Kursapakhari Part II
(Kumarkhali), falling within the jurisdiction of Police Station, Lakhipur,
District Goalpara, Assam. It has been alleged that on 22.10.2010 at about
4:00 p.m., PW-1 Md. Akbar Ali brought the dead body of Samina Begum
to the said Police Station, Lakhipur and lodged an ejahar (Ex. 1) stating
that the deceased was the daughter of his nephew and was married to
the appellant but, ever since the marriage, the appellant had been inflicting
physical and mental torture on her; and that day (i.e., on 22.10.2010) at
around 12:00 noon, the appellant assaulted the deceased with lathi and
bare hands, as a result of which she died. It was further stated by the
informant that the incident was an outcome of the conspiracy hatched
by the appellant along with other accused persons, namely Sanowar
Hussain (brother of the appellant), Rabia Khatun (mother of the appellant),
Zabeda Khatun (sister-in-law of the appellant), and Md. Rajab Ali (relative
of the appellant). On the basis of the ejahar so made by PW-1 Md.
5 Hereinafter referred to as 'the Evidence Act'.
A
B
C
D
E
F
G
H
727
Akbar Ali, FIR No. 398 of 2010 was registered at the said Police Station,
Lakhipur for offences under Sections 498-A, 302, 120-B IPC.
3.2. As per the assertion of the Investigating Officer, PW-7
Anowar Hussain, after registration of FIR, he held the inquest at the
police station where he noticed injuries on the eyes and cheeks as also
on the neck of the deceased; and drew up the inquest report (Ex. 2) in
the presence of four persons. Thereafter, the dead body of the victim
was sent for post-mortem examination to Civil Hospital, Goalpara. On
23.10.2010, PW-8 Dr. Madhab Kr. Rahang conducted the post-mortem
examination and, in his report Ex. 4, opined that the cause of death had
been asphyxia due to throttling, which was homicidal in nature.
3.3. The Investigating Officer, PW-7 Anowar Hussain, asserted
that he visited the place of occurrence and drew the site plan (Ex. 3) but
he did not find the accused-appellant there; and later arrested him on
24.10.2010 at Nidanpur market, away from the place of occurrence.
3.4. After completion of investigation, on 29.06.2011, the chargesheet was filed only against the appellant for the offence under Section
302 IPC while the other persons were let off for want of positive evidence
against them. On 16.03.2012, the case was committed to the Court of
Sessions. The learned Sessions Judge, Goalpara framed the charge under
Section 302 IPC against the accused-appellant who pleaded not guilty
and claimed trial.
3.5. In evidence, the prosecution examined eight witnesses and
also produced documentary evidence. After the prosecution evidence,
the accused-appellant was examined under Section 313 CrPC on
14.05.2013. The accused-appellant did not lead any evidence. Ultimately,
after having heard the parties, the Trial Court, by its judgment dated
18.07.2013, convicted the appellant of the offence under Section 302
IPC and then, after having heard the parties on the question of sentence,
by its order dated 25.07.2013, awarded the punishment to the appellant
of life imprisonment and a fine of Rs. 5,000/- with default stipulations.
4. For the purpose of appreciating the findings recorded in this
case, worthwhile it would be to take note of the salient features of the
prosecution evidence emanating from the relevant depositions and
documents as also the salient features emanating from the stand taken
by the appellant in his examination under Section 313 CrPC.
MD. ANOWAR HUSSAIN v. STATE OF ASSAM
[DINESH MAHESHWARI, J.]
A
B
C
D
E
F
G
H
728
SUPREME COURT REPORTS
[2022] 18 S.C.R.
Prosecution Evidence
5. As noticed, the prosecution has examined eight witnesses in
this case. PW-1 to PW-6 were the private witnesses whereas the IO
was examined as PW-7 and the doctor conducting post-mortem was
examined as PW-8.
5.1. As per the prosecution case, PW-1 Md. Akbar Ali, grandfather
of the deceased, had taken her dead body to the police station and made
the ejahar (Ex. 1), on the basis whereof FIR in question came to be
registered. He had also signed the report (Ex. 2) said to have been made
after inquest over the dead body at the police station. He, however,
came out with a different narrative in his deposition while suggesting
illness and 'hospitalisation of the deceased. For its relevance, we deem
it appropriate to reproduce the entire of his deposition as follows: -
"Ext. 1 is the Ejahar and Ext. 1(1) is my signature. I know accused
Anowar Hussain, who is present in the dock. Deceased Samina
Khatun was my granddaughter. She was the daughter of Taher
Ali and the wife of the accused. The incident took place about
2(two) years ago. Samina got married to the accused about 2(two)
years prior to the incident. She had been leading her conjugal life
with her husband in another village. Samina had been suffering
from illness since 10/15 days prior to the incident. One day, all of
a sudden, I heard that Samina had been taken to hospital. Later I
heard that Samina had died. I only know that she was sick and I
know nothing else. Their relationship as husband and wife was
cordial. Going to Lakhipur Hospital I saw Samina's dead body.
The Ejahar was written by another person. At that time, I was not
mentally stable. As I was asked to put my signature, I put my
signature therein accordingly. Later police came and prepared
the inquest report on the dead body. I put my signature on it. Ext.
2 is the inquest report and Ext. 2(1) is my signature. I know these
much only.
XXXXXXXXXXX
I don't know who had written the ejahar and what was
written in it. The houses of Kitab, Sahar, Anser etc. are there
near the accused person's house."
A
B
C
D
E
F
G
H
729
5.1.1. The relevant contents of the ejahar (Ex. 1), admittedly lodged
by this witness PW-1 Md. Akbar Ali, on the basis whereof FIR in question
came to be registered, could also be usefully reproduced as under: -
"Humble submission is that Must. Samina Begum, daughter
of my nephew Sayed Ali of Kantapur, was married off to Anowar
Hussain of Kursapakhari Part- II (Kumarkhali) village about 3
(three) years ago. Since after the marriage accused No. 1 had
been inflicting physical and mental tortures on her. Today, i.e. on
22/10/10, Anowar Hussain confronted Samina Begum inside his
own house and grievously injured her in various parts of the body
by assaulting her with lathi and bare hands, as a result of which
she died. The said incident was the outcome of the conspiracy
hatched by the below named accused persons. Be it mentioned
herein that the said incident took place at around 12 noon today.
I, therefore, pray to you to take necessary action after
investigating into the matter."
5.2. PW-2 Sofiur Rahman stated that the deceased Samina was
granddaughter of his cousin; that on the relevant day at around 12:00
noon, he heard in the market that Samina had died; and that he went to
the hospital and saw her dead body there.
5.3. PW-3 Barek Ali also stated that the deceased Samina was
his granddaughter. Though he asserted that he heard about Samina having
died after consuming poison and he went to hospital but, did not deny
one part of the prosecution case that the inquest report (Ex. 2) was
bearing his signature and that after the inquest, the police sent the dead
body for post-mortem examination. Owing to its relevance, the entire of
his deposition could also be reproduced as follows: -
"I know the complainant Akbar Ali. I know the accused person
present in the dock. Deceased Samina Khatun was the wife of
the accused. The incident took place about 11⁄2 years ago.
I heard that as Samina had fallen sick, she had been taken
to hospital. She died there. I went to the hospital. I heard that
Samina had died as she had consumed poison. By the time I
reached the hospital, Samina had died. I know this much only.
Later the complainant, the grandfather of the deceased
lodged an ejahar, whereupon police came. I too went there. Ext.
MD. ANOWAR HUSSAIN v. STATE OF ASSAM
[DINESH MAHESHWARI, J.]
A
B
C
D
E
F
G
H
730
SUPREME COURT REPORTS
[2022] 18 S.C.R.
2 is the inquest report. Ext. 2(2) is my signature. Thereafter, Police
sent the dead body to the hospital for post-mortem examination.
XXXXXXXXXXX
Deceased Samina was my granddaughter. The house of
the accused is about 11⁄2 k.m. away from that of mine. It is in
another village. Near the accused person's house there are houses
of Zafar, Afzal, Sahar and Kader etc. Kader's house is close by
while those of the rest are a little distance away."
5.4. PW-4 Sukum Ali also stated in tandem with other witnesses
that Samina died in the hospital but testified to the fact that inquest report
(Ex. 2) was prepared by the police bearing his signature and then, the
dead body was sent by the police to the hospital for post-mortem
examination. His deposition could also be usefully reproduced as under:-
"I know complainant Akbar Ali. I know accused Anowar who is
present in the dock. The deceased was the wife of the accused.
The occurrence took place about 2(two) years ago.
Samina died in the hospital. Villagers said that Samina had
been taken to hospital. I went to the hospital and found her dead.
The complainant filed a case in this regard.
Police came and prepared inquest report on the dead body.
I put my signature in the inquest report.
Later police sent the dead body to hospital for post mortem
examination. Ext. 2 is the inquest report and Ext. 2(3) is my
signature therein.
XXXXXXXXXXX
Declined."
5.5. PW-5 Dilbar Hussain and PW-6 Musstt. Moimma Bewa stated
in their depositions that they heard about Samina having been taken to
hospital and having died in the hospital.
5.6. As noticed, the aforesaid witnesses PW-1 to PW-6 deviated
from the prosecution case and asserted that the victim lady fell ill, was
taken to the hospital, and she died in the hospital. However, giving ejahar
(Ex. 1) by PW-1 and holding of inquest at the police station with signatures
of witnesses on the inquest report (Ex. 2) are the facts duly established
A
B
C
D
E
F
G
H
731
from the relevant statements. We shall examine these and cognate
aspects at the relevant stage later.
5.7. At this stage, it would be appropriate to take note of the
entire of the testimony of the Investigating Officer PW-7 Anowar Hussain,
who stated as under: -
"On 22/10/2010, I was on duty in Lakhipur Police Station. On that
day, upon receipt of an ejahar from one Akbar Ali, the then Officerin-charge of Lakhipur Police Station registered a case and
entrusted me with the charge of its investigation. Ext. 1(2) is the
signature of the then O/C of Lakhipur Police Station Kamal
Chandra Seal, which I am familiar with.
The dead body of Samina Khatun was also brought (to P.S.)
at the time of lodging the Ejahar. The deceased was the wife of
accused Anowar. I held inquest on the dead body. Ext. 2 is the
inquest report and Ext. 2(4) is my signature.
I sent the dead body to Goalpara Civil Hospital for post
mortem examination.
I visited the place of occurrence and examined the
witnesses. I drew a sketch map of the place of occurrence. Ext.
3 is the said sketch map (under objection) Ext. 3(1) is my signature
(under objection).
When I went to the place of occurrence I did not find the
accused there. I enquired about him but nobody could say anything.
Later I heard that the accused was roaming at Nidanpur. I went
there and arrested the accused. I apprehended the accused at
Nidanpur market, brought him to the police station and formally
arrested him on 24/10/2010. Later the accused person was
forwarded to the court.
Thereafter, the post mortem report was collected and on
completion of investigation, I filed the charge sheet against accused
Anowar Hussain for commission of offence punishable u/s 302
I.P.C.
Ext. 4 is the said charge sheet and Ext. 4(1) is my signature
therein.
MD. ANOWAR HUSSAIN v. STATE OF ASSAM
[DINESH MAHESHWARI, J.]
A
B
C
D
E
F
G
H
732
SUPREME COURT REPORTS
[2022] 18 S.C.R.
While holding inquest, I saw injuries in the eyes and cheeks.
I also saw injury in the neck of the deceased.
XXXXXXXXXXX
In the inquest report there is no detailed descriptions of the
injuries. The accused was brought (to P.S.) from Nidanpur market.
The name of the person, who gave the information, is not mentioned
in the diary. The incident took place around 12 noon on 22/10/
2010 and the Ejahar was received at 4 p.m. The place of
occurrence is about 5/6 km away from the police station. One
can come there on foot or by a bicycle.
At 10 a.m. on 23rd day of the month I went to the place of
occurrence, but there is no specific mention in the case diary as
to how I reached there. H.G. Dilwar Hussain accompanied me.
The complainant brought the dead body along. There is no
specific mention in the case diary as to how it was brought and at
what time. Ext. 3 was not enclosed with the charge sheet. GD
Entry was made, but no certified copy of the same was enclosed
with the case diary.
I hold inquest in the police station. At the time of inquest 4
(four) persons were present. I brought those persons from the
road.
The village road is there to the north of the place of
occurrence and beyond that there is a house. It is not mentioned
whose house it is. There is paddy field to the south. There is no
mention as to whose house is there in the further south thereof.
Abdulla's house is in the east and a betel nut plantation is there in
the west. There is no mention whose house is there next to that."
5.8. PW-8 Dr. Madhab Kr. Rahang had conducted the post mortem
and opined that the cause of death was asphyxia as a result of throttling,
which was homicidal in nature. He testified to the post-mortem report
(Ex. 4) wherein he had reported on the condition of the dead body, inter
alia, as under: -
i) Bleeding from both ears.
ii) Tongue was protruded.
iii) Multiple petechial haemorrhages in eyes and face.
A
B
C
D
E
F
G
H
733
iv) Crescentic abrasions on both sides of neck.
v) Bruising and ecchymosis in front of both sides of neck (finger
marks).
vi) Tear of larynx and muscles in front and side of the neck.
vii) Laceration of larynx.
viii) Both lungs were engorged and congested.
ix) Right heart was distended with blood while left was empty.
x) Petechial haemorrhages in liver, spleen and kidneys.
5.8.1. This witness PW-8 Dr. Madhab Kr. Rahang stated in his
cross-examination as under: -
"I have not mentioned the number of marks of finger in my post
mortem report. Gristly mark signifies nail mark. Trachea is a
separate part and larynx is a separate part. Trichoid bone has
separate component. I had not dissected cardiac artery. I had
observed cardiac arteries; but there was no finding record of any
abnormality. If trachea is blocked, then the person may die. Death
may occur in the event of blockade of Vegas nerve. It is not a
fact that without dissection of carotid nerve, it cannot be
ascertained if there was any pressure of the Vegas. I have not
dissected any part of the neck to give the finding. Colour of
ecchymosis was not mentioned.
It is not a fact that such kind of death may occur by external
force of handle of a tube-well or through falling object on the
neck. It is not a fact that death was not due to strangulation. It is
not a fact that that I have not given proper finding."
Stand of the appellant
6. In his examination under Section 313 CrPC, the circumstances
appearing from the evidence led by the prosecution were put to the
appellant. While he denied as false the allegations about his having caused
the death of his wife Samina and also denied the assertions made by
PW-7, the IO and PW-8, the doctor but then, he specifically stated that
Samina died in hospital and for that matter, stated his agreement with
the assertions made by PW-1 to PW-6. The appellant also stated that he
was arrested at Borabara where he had gone to bring medicines for
MD. ANOWAR HUSSAIN v. STATE OF ASSAM
[DINESH MAHESHWARI, J.]
A
B
C
D
E
F
G
H
734
SUPREME COURT REPORTS
[2022] 18 S.C.R.
himself, as he was ill at that time. The relevant question and answers in
the examination of the accused-appellant under Section 313 CrPC read
as under: -
"***
***
***
Q2 PW1 Akbor Ali is the grandfather of the deceased and
according to him Samina your wife was suffering from illness.
On a fine morning he heard that Samina your wife was taken to
hospital Subsequently he came to know that Samina had died in
the Hospital. What do you have to say in this regard?
Ans: Yes, Samina died at hospital.
Q3 PW2 is Sofior Rahman and in his evidence states that on the
eventful day he went to a weekly market. At noon hour he came
back home and heard Samina your wife had died. He went to the
hospital and had seen the dead-body there. What do you have to
say in this regard?
Ans: Yes.
Q4 PW 3 is Barek Ali and according to him Samina your wife
was taken to hospital as she fell ill. Subsequently he came to
know that Samina your wife died at hospital. He went to the said
hospital and had seen the dead-body. What do you have to say in
this regard?
Ans. Yes.
Q5
***
***
***
Q6
***
***
***
Q7
***
***
***
Q66 PW7 the IO states that while he visited your house i/c with
this case you were not found there. No body could tell your
whereabouts. Subsequently he came to knows that you were
roaming at Nijampur the IO went there and arrested you from the
road of Nijampur. What do you have to say in this regard?
6 This question, though number 8 in continuity, has been mentioned as 'Q6' in the
original.
A
B
C
D
E
F
G
H
735
Ans. I was arrested by police not at Nijampur but at Borabara a
little distance away from there; I was there to bring medicines for
myself as I was ill at that time.
***
***
***"
6.1. The accused-appellant declined to lead any evidence and
hence, the matter proceeded for hearing and ultimately, led to the
impugned judgment and order dated 18.07.2013/25.07.2013.
Trial Court found the appellant guilty and awarded life
imprisonment
7. Having taken note of the major features of the evidence on
record and the stand of the prosecution witnesses as also of the accusedappellant, we may summarise the relevant aspects of the decision of the
Trial Court and its process of reasoning.
7.1. In the first place, the Trial Court noticed the point calling for
determination in the matter, i.e., as to "whether the accused committed
murder by intentionally causing the death of his wife Samina Khatun,
on the eventful day i.e. 22.10.2010, at about 12:00 noon, at village
Kurshapakhri Part II (Kumarkhali) in his house?"
7.2. After taking into consideration the testimony of PW-8 who
had conducted post-mortem examination, the Trial Court observed that
it was clearly established that the cause of death was asphyxia due to
throttling, which was ante-mortem and homicidal in nature; and though
the defence had cross-examined PW-8 on certain points, but had failed
to derange these findings. The Trial Court observed and held as under: -
"...The defence cross examined this doctor on some point; but it
has failed to disrupt any finding of the doctor on the matter that
the deceased died due to asphyxia as a result of throttling. I have
drawn a serious attention to this piece of evidence and am not
inclined to take a contrary view as regards the cause of death of
the deceased. It was done by throttling. Now, the question is who
the author of this crime. To seek answer of this query, we have to
revert back to the evidence on record."
7.3. Coming to the question as to who was the author of this
crime, the Trial Court, while dealing with the testimony of PW-1, noticed
that though he alleged in the FIR that the appellant committed the murder
of his granddaughter but, took a somersault while deposing in the Court
MD. ANOWAR HUSSAIN v. STATE OF ASSAM
[DINESH MAHESHWARI, J.]
A
B
C
D
E
F
G
H
736
SUPREME COURT REPORTS
[2022] 18 S.C.R.
and stated that being mentally unstable, he acted to the dictates of others
and affixed his signature on this piece of paper. The Trial Court also
observed that this witness attempted to give a different direction to the
prosecution story by taking the stand about illness and hospitalisation of
the victim before her death. The Trial Court deduced that this witness
was apparently won over, particularly when his narrative was running
counter to the evidence of the doctor conducting post-mortem
examination, who had categorically stated that the victim died due to
throttling. The Trial Court also noticed that the other (private) witnesses
had deposed more or less on the same lines, may be in slightly different
directions; and found no reason to accept their suggestion about demise
of the victim in hospital due to illness, for obvious inconsistency with the
initial version in the FIR as also for want of clarification of basic questions
as to who, if at all, brought the victim to hospital and when.
7.4. Thereafter, the Trial Court analysed the testimony of PW-7
Anowar Hussain, the Investigating Officer who asserted that on
22.10.2010, the FIR and dead body were received at the police station
simultaneously; that he carried out inquest, prepared the inquest report
(Ex. 2), and dispatched the body for post-mortem examination; and that
subsequently, he visited the site of incident, examined material witnesses,
and drew up sketch map of the site (Ex. 3). The Trial Court also rejected
the objection of defence against acceptance of the site plan (Ex. 3) in
evidence while observing that the defence had failed to satisfy as to
why the said material piece of evidence, be not brought on record. The
Trial Court further noticed from the testimony of PW-7 that when he
visited the place of occurrence, he did not find the appellant; and upon
receiving the information that the appellant was roaming at Nidanpur, he
reached there and took the appellant into custody.
7.5. The Trial Court also took note of the fact that in his statement
under Section 313 CrPC, the appellant took the plea that he was ill at
that time and had gone to Nidanpur to get some medicines but no medicine
was found by PW-7 in his pocket. The Trial Court observed that the plea
taken by the appellant was nothing but a lame excuse; and that the
appellant had also failed to specify as to who took his wife to hospital, if
at all she had fallen ill.
7.6. Thus, after taking into account the overall evidence on record
and after appreciating all the surrounding factors, the Trial Court
concluded that the prosecution had been able to establish the guilt of
A
B
C
D
E
F
G
H
737
appellant for commission of offence in question beyond any doubt. The
relevant observations and findings of the Trial Court read as under: -
"16. Now, we come to the most material part of the evidence.
Here, the I.O. has stated, in no uncertain terms that when he
visited the place of occurrence, he did not find the accused thereon.
From the evidence of other witness, it somehow comes to light
that the victim was shifted to hospital in the morning hour. Now,
the question is who had shifted her. All the witnesses deposed in
different directions; but the justice cannot be left to be defeated,
even if all attempts are made by the witnesses to derail the course
of justice. Now, reverting back to the evidence of PW-7, it comes
to light that he made enquiries as regards disappearance of this
accused from his house; but none could furnish any satisfactory
information as to why he was missing from his house.
Subsequently, the I.O. came to know that the accused was
roaming at Nidanpur. He immediately left for that place and on
reaching there, he found the accused roaming aimlessly at that
place and he, immediately, brought the accused under his custody.
In the instant case, none had seen the actual occurrence. From
the medical evidence it stands amply established that the deceased/
wife of the accused suffered homicidal death. Her neck was
throttled and she was done to death.
17. From Ext.2, the inquest report, it appears that the I.O. has
noted that there appeared spot around the neck of the deceased
ad the body was stiff. The doctor while performing post mortem
examination, has found that there was rigor mortis present there
on the whole body. There was also bleeding from both ears. He
also noted protruded tongue. Multiple petechial haemorrhge were
seen in eyes and face. Some bruising and eccymosis were also
found on both sides of the neck. The fact that the death was
caused by act of throttling stands abundantly established in the
instant case. The accused, during the whole trail, kept his mouth
shut. There are cogent and convincing evidence on record to hold
that both the accused person and the victim were residing in the
same house together. Death occurred to the wife of the victim.
The parents and other members of the house were all present
there. None deemed it fit to inform the accused as regards her
falling seriously ill if ever there was any tinge truth in it. Even the
MD. ANOWAR HUSSAIN v. STATE OF ASSAM
[DINESH MAHESHWARI, J.]
A
B
C
D
E
F
G
H
738
SUPREME COURT REPORTS
[2022] 18 S.C.R.
accused did not elaborate on the matter as to who took the victim
to hospital after ever she had fallen ill. The whole matter has
been stage-managed. The involvement of the accused in this
offence is beyond doubt and is writ large on the face of record.
He was roaming here and there somewhere else. He took the
plea in his examination u/s 313 Cr.P.C. that he was ill at that time.
So, he went to Nidanpur to get some medicines; but the I.O. had
not found any medicine in his pocket. Even this plea remains a
lame excuse. Just to save the skin from this heinous offence, the
accused has taken such plea. The death of his wife occurred in
an unnatural condition. He remained unmoved. He even did not
throw light as to what had happened prior to her death. It did no
good to the accused to remain taciturn on the entire matter. Death
occurred due to throttling. The accused must explain what
happened at that time. His keeping mum, during the entire trail,
points to his guilty conscience. Upon overall analysis of the entire
evidence on record in its right perspective, this court is constrained
to hold that the prosecution has been able to establish the guilt of
the accused for commission of offence u/s 302 IPC beyond all
shadows of doubt. Hence, the accused is found guilty and he is
accordingly convicted."
7.7. At the time of hearing on the question of sentence, the Trial
Court noticed an application on behalf of the accused-appellant for reexamining PW-8, the doctor conducting post-mortem, for correction of
certain expressions occurring in his deposition. The Trial Court found
such expressions not having any serious effect on the prosecution case
as regards the cause of death. It was also argued before the Trial Court
that there was no mens rea on the part of the appellant and the offence
may be scaled down to Section 304 Part II IPC. However, this submission
was found unacceptable by the Trial Court looking to the overall
circumstances including the cause of death of the victim and the conduct
of the appellant, where he fled from the house and offered no explanation
as to the cause of death of his wife. Finally, the Trial Court, by its order
dated 25.07.2013, awarded the punishment to the appellant of life
imprisonment and a fine of Rs. 5,000/- with default stipulations. The
relevant observations and conclusion of the Trial Court read as under: -
"22. I have very attentively gone through the case record and
have taken into account the submission of the learned counsel on
A
B
C
D
E
F
G
H
739
the matter that, the accused, if ever be held guilty, he should be
sentenced u/s 304(2); but I do not agree on this matter.