Full Judgment
.2..The appeal is directed against the judgment and .sentence dated 14-7-2005 passed by the learned Sessions .Judge, Morigaon in Sessions Case No.78/2004.
.3..Before we go to the merits of the case, we may note .that the prosecution evidence in this case was closed on .5-7-2005. The judgment under appeal shows that arguments .were heard on the same date, that is, 5-7-2005. Judgment .was delivered on 14-7-2005, that is, after about 8/9 days
.4..On 14-7-2005, apparently after the judgment was .delivered, the appellant was asked to enter his defence .under Section 233(1) of the Cr PC. He was asked the .following question:-
Qtns. You are found guilty for committing murder of your .own wife Musstt. Sahera Khatun. Will you adduce any .evidence for your defence?
Ans. - I have no evidence to adduce for my defence.
.5..It is basic and fundamental that an accused person .should be asked to lead his evidence before his .conviction but we are surprised that a Judicial Officer .as senior as a Sessions Judge did not even realize this.
.6..In the judgment under appeal, it is recorded .(negatively) in paragraph 3 that the examination of the .defence witnesses does not arise because if the accused .does not deserve acquittal then he will be called upon to .lead his defence evidence. In other words, according to .the learned Sessions Judge a decision has to be taken .soon after the prosecution evidence is closed whether the .accused is guilty or not - if the accused is not guilty .the question of adducing defence evidence does not arise .but if the accused is guilty then he may be asked to lead .his defence evidence. We are more than surprised that the .learned Sessions Judge has taken such a view.
.7..Paragraph 3 of the judgment under appeal reads as .follows:-
3..Based on commitment papers and record of GR case, .this Sess case was registered against accused Abdul Latif . As per direction of Committing Court, the accused also .appeared before this Court. After perusal of 173 Cr PC .papers and after hearing learned advocates for both the .sides, charges u/s 302/201 IPC were framed against the .accused. The charges were read over and explained to the .accused to which the accused pleaded not guilty and .claimed to be tried. In this case, the prosecution .examined as many as 11 PWs including I/O whereas defence .examined none so far. Defence plea is simple denial. In .this stage, question of examination of DW does not arise, .because procedurally, if accused does not deserve his .acquittal, under the circumstance, accused shall be .called upon to enter into his defence and that stage is .not yet at hand.
.(Emphasis given)
.8..Thereafter, the appellant was found guilty by the .learned Sessions Judge and convicted, without giving him .an opportunity to lead any defence evidence.In .paragraph 23 of the judgment under appeal the learned .Sessions Judge called upon the accused to enter his .defence, if any. The relevant portion of paragraph 23 of .the judgment under appeal reads as follows:-
23..Now the accused is called upon to enter into his .defence, if any. The accused declined to adduce any .evidence for his defence. Hence, the accused is heard on .the point of sentence for offence punishable u/s 302/201 .IPC, but accused stated nothing on the point of sentence .also.
9..It appears to us that the learned Sessions Judge first .dictated and pronounced the judgment from paragraph 1 to .22 on 14-7-2005 and convicted the appellant. Thereafter .he asked the appellant whether he would like to adduce .any evidence in his favour. The appellant declined to do .so. The learned Sessions Judge then asked the accused if .he had anything to say on the question of sentence. The .appellant did not have anything to say on the sentence. .Then the learned Sessions Judge dictated and pronounced .the remaining portion of the judgment from paragraph 23 .onwards sentencing the appellant to imprisonment for life .
.10..On these facts, as they appear from the record, there .is no option for us but to set aside the judgment under .appeal and come to the conclusion that without giving any .opportunity to the appellant to adduce evidence in his .favour, he has been convicted by the learned Sessions .Judge..
.11..However, we have also gone through the merits of the .case and we find that no ground for conviction has been .made out..
.12..The case against the appellant is that his wife .Musstt Sahera Khatun disappeared from the matrimonial .home on 22-6-2002 apparently along with her brother .Imdadul Hussain, who was absconding during the trial and .does not appear to have been found till date. It is not .clear whether Imdadul Hussain is really the brother of .Musstt Sahera Khatun or not. It appears that no effort .was made to ascertain this fact.
.13..Be that as it may, since Musstt Sahera Khatun was not .seen in the village for some time, on 13-7-2002 a First .Information Report (FIR) was lodged by PW-3 Sultan Mahmud ., belonging to the Village Defence Party (VDP), that .Musstt Sahera Khatun has disappeared from her house in a .suspicious manner; that there was some ill feeling .between the appellant and Musstt Sahera Khatun; that .Musstt Sahera Khatun left behind her minor children for .which there is no explanation and, therefore, it appears .that the appellant killed his wife (Musstt Sahera Khatun) .and concealed her dead body somewhere.
14..The body of Musstt Sahera Khatun has not been found .till date, her brother Imdadul Hussain also has not been .found till date. The evidence suggests that Musstt Sahera .Khatun and her brother Imdadul Hussain went to the house .of her mother in a different village but no effort was .made by the Investigating Officer to find out whether .Musstt Sahera Khatun was living with her mother or not.
.15..For convicting the appellant, the learned Sessions .Judge relied only upon the extra judicial confession .stated to have been made by him. This extra judicial .confession is stated to have been made before PW-1 Hari .Pada Roy and PW-2 Kasimuddin.
.16..In his evidence the Investigating Officer Prabhat .Saikia, who appeared in the witness box as PW-11, stated .that the appellant did not make any extra judicial .confession before the witnesses. This crucial part of the .testimony has been completely overlooked by the learned .Sessions Judge.
.17..That apart, there is evidence on record from PW-3 .Sultan Mahmud (the informant) that he was told by the .children of Musstt Sahera Khatun that she had gone to her .mother's house. A similar testimony was given by PW-4 .Musstt Chan Banu.
.18..One of the children of Musstt Sahera Khatun, that is .Sahjahan Ali, appeared in the witness box as PW-7. When .he appeared in the witness box he was aged about 14 years .and he stated on oath that his mother Musstt Sahera .Khatun had gone with his 'Mama' Imdadul Hussain to his .maternal grandmother's house but this witness was .declared hostile.
.19..It appears to us that the entire effort of the .prosecution was to somehow or the other find the .appellant guilty, without carrying out any proper .investigation, and a murderous story against the .appellant has been cooked up. It is true that there are .some odd circumstances, such as, Musstt Sahera Khatun .leaving the matrimonial home without her minor children, .but it appears from the record that she did not enjoy a .happy matrimonial life with the appellant. It is quite .possible that she may have left the matrimonial home in .these circumstances and it may be a simple case of .desertion, rather than of murder. No effort was made to .gather any evidence of any kind from the village of .Musstt Sahera Khatun's mother which would have certainly .thrown some light on the matter.
.20..All that we can say is that not only was the .investigation shoddy, but even the trial was conducted in .a manner totally unbecoming a Court of Law.
.21..We have more than adequate reason, on the above facts ., to believe that the appellant was not given a fair .trial and that the investigation was motivated. There is .absolutely no evidence to find the appellant guilty of .murdering his wife Musstt Sahera Khatun. We see no reason ., under these circumstances, to remand the case for .afresh trial and in fact no such request has even been .made by the prosecution.
.22.The appeal is allowed.
.23.The Trial Court Records be sent back immediately.
.24.For the services rendered, the learned Amicus Curiae .will be paid a sum of Rs.5000/- by the Assam State Legal .Services Authority.