The Gauhati HC on 17th November 2022 upheld the conviction of a man who brutally killed his 2.5 years old baby girl with a sharp weapon due to a dispute arising between himself & his wife out of suspicion of an unlawful affair carried by the wife with another person relied upon the attestation of the wife of the convict (and mother of the deceased) who, the Court noted, had not only seen the happening but had also truthfully deposed about the incident before the Court.. This was seen in the matter of AYUB HUSSAIN @ AYUB ALI v. THE STATE OF ASSAM, [Case No.: CRL A(J)/1/2019] The matter was presided over by the bench of Justice Suman Shyam & Justice Mitali Thakuria.
FACTS OF THE CASE
On July 24, 2016, Asma Khatun (wife of the accused/appellant & the mother of the victim) lodged an FIR stating that his husband/accused took her daughter Suhana Akhtar (aged 2.5 years) to the nearby shop telling that he would buy her some biscuit & killed the child on the way by stabbing her on the chest with a sharp weapon & that she had witnessed this incident.
A charge sheet was filed, the charges were framed & after the finale of the trial, on September 28, 2018, the accused was convicted U/S 302 IPC by Additional Sessions Judge, Bajali, Pathsala, & was sentenced to undergo rigorous imprisonment for life. Being resentful by the impugned judgment, the appellant preferred the instant appeal.
The arguments put forth
It was the pronouncement of the accused that except for the attestation of PW-2/Asma Khatun (wife of the accused/appellant & the mother of the victim), there was no other evidence accessible on record which could implicate the appellant/accused in this case.
The Court’s attention was also drawn to the description furnished by the accused/appellant while recording his pronouncement u/s 313 Cr.P.C. by stating that it was his wife l.e. the PW-2, who had killed the child & assaulted him with a “Chaku” & later on, got married with another boy with whom she was having an unlawful relationship.
As such, the Amicus Curiae argued that it was a fit case where the appellant/accused justified to be acquitted by giving him the benefit of doubt.
On the other hand, the APP appearing for the State argued that PW-2/Asma Khatun (wife of the accused/appellant & the mother of the victim) had herself seen the happening & therefore, she is an eyewitness to the happening. It was also contended that the attestation of the PW-2 was not only consistent with her pronouncement recorded by the Police u/s 161 of the Cr.PC. but the same was also free from contradiction & therefore, it was argued, she could be treated as a sterling witness in this case.
High Court’s observations
At the outset, the Court analysed the attestation of PW2 to note that in her attestation, she had narrated in detail, the manner in which the incident took place, & therefore, her evidence appeared not only to be consistent & free from contradiction but also in conformity with her pronouncement recorded U/S 161 Cr.P.C.
“From the evidence of PW-2, it is firmly established that on the date of the happening, it was none other than the accused/appellant, who had taken away the victim girl from the lap of her mother i.e. the PW-2 & thereafter, killed the child by inflicting grievous injuries on her body with a sharp weapon just outside the house & on the road. The incident was seen by the PW-2, the Court further remarks finding the attestation of PW2 to be of sterling quality
Concerning the description adduced by the accused in his 313 CrPC statement, the Court noted that his attempt was to merely shift the allegation of the killing of the daughter to his wife which was not supported by any material available on record. The Court also noted that in his statement, the accused had admitted that soon before the happening, he had a quarrel with his wife over her alleged unlawful relationship with a person.
The accused has not given any particularity about the manner in which or the place in which, the wife (PW-2) had allegedly killed the child or attacked him. It is also not understandable as to why a mother would kill a child merely because her husband had suspected her of having an unlawful relationship with another person. Rather, viewed from any angle, it is most likely that suspecting an unlawful relationship of his wife with another person, it is the husband who would kill the child treating her to be the outcome of the unlawful relationship carried by his wife. Under such circumstances, the description furnished by the accused appears to be highly improbable and, therefore, had been rightly rejected by the learned Court below,” the Court remarked.
Consequently, the Court came to the finale that it was none other than the appellant/accused who had brutally murdered his 2½ years old baby girl with a sharp weapon due to a quarrel arising between himself & his wife out of suspicion of an unlawful affair carried by the wife with another person.
As such, the Court agreed with the finale drawn by the trial Court that the charge brought against the accused/appellant u/s. 302 IPC stood entrenched beyond a fair-minded doubt. In view of this, the appeal was dismissed.
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JUDGEMENT REVIEWED BY YAKSHU JINDAL.