Sk. Yusuf vs State of West Bengal

BY:- Khan Ahmad Darvesh

In the Supreme Court of India

NAME OF THE CASESk. Yusuf vs State of West Bengal
CITATIONCriminal Appeal no. 831 of 2007
DATE OF THE CASE14th June, 2011
APPELLANTSk. Yusuf
RESPONDENTState of West Bengal
BENCH/JUDGEJ. B S Chauhan and J. Swatenter Kumar
STATUTES/CONSTITUTION INVOLVEDIndian  Penal Code
IMPORTANT SECTIONS/ARTICLESSection 201 & 302 of Indian Penal Code.

ABSTRACT

This case is an appeal by the appellant who was booked under Sec 201 and 302 of IPC

In this case, the deceased Sahanara Khatun had gone to pluck jhinga from her jhinga field at about 9:30 AM. When she did not returned till 10:30 AM, her father Abdul Rajjak along with some of the villagers went to search her and found freshly dug earth in the nearby graveyard, thus, they removed the soil and found the dead body of Sahanara Khatun.

An fir was lodged against the appellant and after the investigation, an old spade was recovered from the case site. The appellant was arrested amd after the trial, the court held that he is guilty and they were sentenced for rigorous imprisonment for life.

Therefore, the appellant used criminal appellate jurisdiction and moved to the supreme court challenging the order of the High court.

INTRODUCTION

This case is a criminal appeal no. 831 of 2007 in the Supreme court.

This case is an appeal against the judgment and order dated 28.06.2006 passed by the High Court of Calcutta in C.R.A.No. 229 of 2000, by which it dismissed the appeal of the appellant against the judgment and order of conviction dated 26.5.2000 passed by the Additional Sessions Judge, First Court, Burdwan in Sessions Trial No. 7 of 1999, convicting the appellant under Sections 302 and 201 of the Indian Penal code[1], 1860 (hereinafter referred to as `IPC‘) and appellant has been imposed the sentence to suffer rigorous imprisonment for life under Section 302 IPC and sentence of one year under Section 201[2] IPC.

Both the sentences have been directed to run concurrently.

BACKGROUND OF THE CASE

In this case, the deceased Sahanara Khatun had gone to pluck jhinga from her jhinga field at about 9:30 AM. When she did not returned till 10:30 AM, her father Abdul Rajjak along with some of the villagers went to search her and found freshly dug earth in the nearby graveyard, thus, they removed the soil and found the dead body of Sahanara Khatun.

An fir was lodged against the appellant and after the investigation, an old spade was recovered from the case site. The appellant was arrested amd after the trial, the court held that he is guilty and they were sentenced for rigorous imprisonment for life.

FACTS OF THE CASE

The facts and circumstances giving rise to this case are that:

On 31.08.1991, Sahanara Khatun, daughter of Abdul Rajak, resident of village Batrish Bigha, PS: Jamalpur, aged 13 years, had gone to pluck jhinga at about 9.30 A.M. from her jhinga field. She did not return till 10.30 A.M., her father Abdul Rajak along with Habibur Rahaman and Sirajul Islam went to search her, however, could not trace her in the jhinga field. They looked for her in bamboo grove in nearby graveyard and found a freshly dug earth, thus, they removed the soil and found the dead body of Sahanara Khatun.

Imdad Ali (PW.1) lodged the FIR on the same day at 12.05 hours under Sections 302 and 201 IPC at Police Station Jamalpur, District Burdwan at a distance of 8 kilometres from the place of occurrence, wherein the appellant was named as accused on the suspicion that appellant was seen by Abdul Rashid (PW.5) and Swapan Murmu catching fish in the canal adjoining his jhinga field and was also seen talking with deceased.

The appellant was having a spade in his hand, when it is inquired from the appellant, he replied that he had gone to catch the fish near railway track. Subsequently, the appellant absconded. In the FIR, it had already been mentioned before committing the murder, Yusuf, the appellant tried to commit rape and on being resisted by the deceased, the appellant assaulted her on her head with spade and murdered and buried her in the graveyard.

Thus, investigation ensued. The appellant was arrested on 7.9.1991 by the villagers in the paddy fields near Batrish Bigha and handed over to the police. It was on his disclosure that an old spade, one ghuni and one enamel thala (plate) were recovered. After completing the investigation, chargesheet was filed against the appellant. He denied his involvement in the crime pleading not guilty. Thus, he was put to trial. The prosecution examined 19 witnesses to prove its case.

After conclusion of the trial, the Additional Sessions Judge, Burdwan, vide judgment and order dated 26/5/2000 found the appellant guilty of offences punishable under Sections 302 and 201 IPC and sentenced him to life imprisonment and fine of Rs.1,000/-under Section 302 IPC and further sentenced to one year rigorous imprisonment and fine of Rs.500/- under Section 201 IPC.

Being aggrieved from the aforesaid judgment, the appellant preferred Criminal Appeal No. 229 of 2000 in the High Court of Calcutta which has been dismissed vide judgment and order dated 28.6.2006. Hence, this appeal.

ISSUE RAISED BEFORE THE COURT

  • Is there any medical evidence that the deceased is sexually assaulted?
  • Is there any explanation of why the shade is not sent for chemical analysis?

ARGUMENTS FROM THE APPELLANT SIDE

  • A learned friend of the court, Shree R.K. Gupta, has made this a case of circumstantial evidence. There is no record showing that the late Sahanara Khatun was with the appellant at the scene of the incident. The shovel recovered by the investigators during the investigation was not sent for chemical analysis. The trial court and the higher court relied heavily on the alleged extrajudicial confessions made by the appellant before Nurul Islam (PW.11) and Ali Hossain (PW.13) and others, although there was no such confession. Nurul Islam is the brother-in-law of Abdul Rajak (PW.2), the father of the deceased. Ali Hossain (PW.13) is a resident of Nurul Islam Village (PW.11). He does not support the extrajudicial confession version proposed by Nurul Islam (PW.11). There are conflicting accounts regarding the arrest of the appellant in Jamalpur a week after the incident. There is no evidence that the deceased was sexually assaulted. Dr. Samudra Chakraborty (PW.18), who performed an autopsy on the body of Sahanara Khatun (deceased), did not mention in his report that the deceased was sexually assaulted before her death. Therefore, the appeal must be granted.

ARGUMENTS FROM THE RESPONDENT SIDE

  • The learned counsel for the respondent, Shri Tara Chandra Sharma, a senior lawyer representing the country, strongly opposed the appeal, arguing that there were concurrent investigative findings that did not require any court intervention.
  • The learned counsel for the respondent said that undoubtedly, although there is circumstantial evidence in this case, the chain is complete, the circumstantial evidence is conclusive and clearly points to the appellant’s guilt, the circumstances cannot be explained by any other reasonable assumption of the appellant’s guilt.
  • The learned counsel for the respondent further argued that the next two courts have ruled that the appellant is guilty and it is not necessary to intervene in the previous sentence. The appeal is unfounded and can be rejected.

PROVISIONS RELATED TO THIS CASE

The case revolves around the interpretation of two articles:

Section 201 of IPC:

Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offend­er from legal punishment, or with that intention gives any infor­mation respecting the offence which he knows or believes to be false; if a capital offence.—shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; if punishable with imprisonment for life.—and if the offence is punishable with 1[imprisonment for life], or with imprisonment which may extend to ten years, shall be punished with imprison­ment of either description for a term which may extend to three years, and shall also be liable to fine; if punishable with less than ten years’ imprisonment.—and if the offence is punishable with imprisonment for any term not extend­ing to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment pro­vided for the offence, or with fine, or with both. Illustration A, knowing that B has murdered Z, assists B to hide the body with the intention of screening B from punishment. A is liable to imprisonment of either description for seven years, and also to fine.

Section 302 of IPC:

Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine.

JUDGMENT

The Hon’ble Supreme Court held that the spade had not been sent for chemical analysis as admitted by Digambar Mondal (PW.19), I.O. himself and there was no explanation furnished as for what reason it was not sent.

The Hon’ble court further stated that in case of circumstantial evidence, not sending the weapon used in crime for chemical analysis is fatal for the reason that the circumstantial evidence may not lead to the only irresistible conclusion that the appellant was the perpetrator of the crime and none else and that in the absence of any report of Serologist as to the presence of human blood on the weapon may make the conviction of the accused unsustainable. (Vide: Akhilesh Hajam v. State of Bihar (1995) Supp 3 SCC 357).[3]

The Hon’ble court said that there is no medical evidence or suggestion by any person as to the sexual assault on the deceased. Therefore, it merely remained the guesswork of the people at large. Mere imagination that such thing might have happened is not enough to record conviction.

The Hon’ble court also held that this incident had occurred in a broad day light at 9.30 a.m. in the month of August in the agricultural field surrounded by agricultural field of others. Therefore, the presence of a large number of persons in the close vicinity of the place of occurrence can be presumed and it is apparent also from the statement of Aliful Rahmal (PW.6). Thus, had the deceased been with the appellant, somebody could have seen her at the place of occurrence. It cannot be a positive evidence as concluded by the courts below that none other than the appellant could commit her murder because no one else had been there at the place of occurrence. In fact, nobody had ever seen the deceased at the place of occurrence. Digging the earth by a single person to the extent that a dead body be covered by earth requires a considerable time and there was a possibility that during such period somebody could have seen the person indulged in any of these activities, though no evidence is there to that extent. The circumstances from which the conclusion of guilt is to be drawn in such a case should be fully established. The circumstances concerned “must or should” and “not and may be” established. In the instant case, the circumstances have not been established.

The Hon’ble court considered the opinion that the courts below convicted the appellant on a mere superfluous approach without in depth analysis of the relevant facts.

The Hon’ble court stated that in the facts and circumstances of the case, the appeal succeeds and is allowed. The appellant is given benefit of doubt and acquitted of the charges of offences punishable under Sections 302 and 201 IPC. Appellant is in jail. The Hon’ble court directed that he be released forthwith unless his detention is required in any other case.

CONCLUSION

Therefore, the court was of the view that there is no such evidence or witness that proves that the appellant has tried to sexually assault the deceased and when he was refused by her, she became angry and hitted her with a shade.

The incident occurred in daylight and there would be many other persons near the place of occurrence and it could be anyone who have killed her. Secondly, the shade was not sent to chemical analysis and there is no such explanation for that.

Thus, the appeal succeeds and appellant is not found guilty of what happened and should be set free. Once again, justice prevailed.

REFERENCE


[1] Indian Penal Code, 1860, Section 302

[2] Indian Penal Code, 1860, Section 201

[3] Akhilesh Hajam vs. state of Bihar, 1995 Supp (3) SCC 357