IN THE COURT OF SESSIONS JUDGE,...

SESSIONS CASE NO – 69/12.

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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.


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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


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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.


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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


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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


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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.


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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


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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


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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


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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


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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


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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


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


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


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


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


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


18

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.


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


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.


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


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


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.


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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.


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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.


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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)


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Sessions Judge,

Kokrajhar.

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