Gauhati HC rejects Uxoricide conviction due to weak Circumstantial evidence

CASE TITLE – Abdul Sukkur v. The State of Assam

CASE NUMBER – Criminal Appeal [J] no. 84/2017

DATED ON – 22.05.2024

QUORUM – Justice Manish Choudhury & Justice Robin Phukan



The accused-appellant had been charged with uxoricide. In order to bring home the charge of murder under Section 302, IPC, Both sides had examined 7 [seven] nos. of witnesses viz. [i] P.W.1 – Mahabbat Ali; [ii] P.W.2 – Rahima Begum; [iii] P.W.3 – Sahab Uddin; [iv] P.W.4 – Dr. Zakir Hussain Laskar; [v] P.W.5 – Abdul Mannan; [vi] P.W.6 – Samsul Islam; and [vii] P.W.7 – Ashim Ranjan Das. In addition, 7 [seven] nos. of documents were exhibited and those documents were – [i] Ext.-1 – First Information Report; [ii] Ext.-2 – Seizure list; [iii] Ext.-3 – PostMortem Examination Report; [iv] Ext.-4 – Inquest Report; [v] Ext.-5 – Sketch Map of the place of occurrence; [vi] Ext.-6 – Charge Sheet; and [vii] Ext.-7 – Certified copy of General Diary Entry. Two material exhibits viz. [i] Mat.Ext.-1 – Spade; and [ii] Mat.Ext.-2 – Broken lance, were also exhibited. P.W.1 informed over phone that in the previous night, his co-villager viz. Abdul Sukkur, that is, the accused killed his wife by assaulting her and the deadbody was lying inside his house. The I.O. of the case, P.W.7 commenced the inquest on the deadbody of the deceased, Jamila Begum at the place of occurrence at 11-30 a.m. and completed the same at 12-30 p.m. vide Ext.-4, Inquest Report. In Ext.-7, Inquest Report, it was described that the deadbody was lying in a sleeping position inside her dwelling house with cut marks on her head and knee. Ext.-7, Inquest Report was signed by P.W.1, Mahabbat Ali and P.W.3, Sahab Uddin.



Whether the evidence on record is adequate to point towards the guilt of the Accused-Appellant.



The Learned Amicus Curiae appearing for the accused-appellant submitted that out of the 7 Nos. of prosecution witnesses, only one witness, that is, P.W.2 appeared to be present at the place of occurrence in and around the time when the incident had happened. P.W.2 and two other prosecution witnesses, that is, P.W.3 and P.W.5 were declared hostile by the prosecution. She stated that though the prosecution side had cross-examined the three of them, that is, P.W.2, P.W.3 and P.W.5, but none of them were confronted with their previous statements so as to prove any contradiction with their testimonies adduced before the court vis-à-vis their previous statements. The learned Amicus Curiae had further contended that though the incident had occurred inside the house of the accused-appellant and the deceased but they were not alone as there were other inmates in the house at the relevant time. None of the prosecution witnesses had attributed the act of assault to the accused-appellant and as such, the learned trial court had erred to reach a finding that the prosecution had brought the charge for the offence of murder beyond all reasonable doubts.



The Learned Additional Public Prosecutor appearing for the respondent State submitted that the entire testimonies of the prosecution witnesses who were declared hostile by the prosecution, were not washed off the records altogether. The remaining parts of the testimonies of the prosecution witnesses – P.W.2, P.W.3 and P.W.5, who were declared hostile, can be relied upon along with other corroborating evidence if such remaining parts of their testimonies are found creditworthy. The remaining parts of the testimonies of the hostile witnesses were found reliable enough to consider with other evidence/materials on record and stated that the learned trial court after proper appreciation of the entire evidence/materials on record, had rightly arrived at the finding on the charge of murder. The learned Additional Public Prosecutor submitted that from the evidence/materials on record, it had emerged that there was no possibility of any third person to commit the crime, and thus, it was the accused-appellant who had, in all probability, committed the murder of his wife.



The Gauhati High Court stated that on a meticulous examination of the testimonies of the prosecution witnesses, they found that none of the witnesses had stated that he or she had witnessed the incident or any act of assault. It is also settled that merely because a witness is declared hostile his entire evidence is to be excluded from consideration. Merely because the court has given permission to the Public Prosecutor to cross-examine his own witness describing him as a hostile witness, it does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base the conviction upon the testimony of such witness, if corroborated by other reliable evidence. It is for the court to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed with regard to a part of his testimony. They further pointed out that on a combined analysis of the above events stated to have occurred in the night intervening 29.11.2015 and 30.11.2015, as deposed by the afore-mentioned prosecution witnesses, it is found that none of them had made any specific mention about the time at which the incident inside the house of the accused had occurred though they said that it was in that night the incident had occurred. In view of such evidence, it is difficult to reach a finding as about the specific time of occurrence of the murderous assault on the deceased. The Hon’ble High Court stated that in case the prosecution has to bring home a charge on the basis of circumstances then also the principle that the prosecution has to prove its case beyond all reasonable doubts does not variate. Therefore, the prosecution is required to prove the case beyond all reasonable doubts by proving the entire chain of circumstances, not leaving any link missing for the accused to escape, and in the absence of any specific evidence as regards the time of occurrence, it was difficult for them to hold that the incident had occurred at a specific time in the night intervening 29.11.2015 and 30.11.2015. P.W.2 was the only witness who was present inside the house along with her parents and who had testified, and in her testimony, did not attribute anything adverse to the accused. The other prosecution witnesses were post-occurrence witnesses who did not witness the act of murderous assault on the deceased. It had also not emerged from the evidence/materials on record that the relationship between the accused and the deceased was not cordial. The Hon’ble High Court stated that in a case based on circumstantial evidence, motive assumes vital significance and it is considered to be a link in the chain, but no evidence was led by the prosecution on motive in the instant case. After which, The Hon’ble High Court held that the accused-appellant’s Criminal Appeal succeeds, because on appreciation of the evidence/materials on record in its entirety, it was not possible for them to hold that the prosecution was able to lead evidence which had unerringly pointed towards the guilt of the accused in respect of the murderous of assault on his wife during the relevant night by establishing all the circumstances conclusively and completely leaving no gap left in the chain to hold that it was only the accused who had perpetrated the crime and to rule out any possibility of any other person committing the crime. And in this circumstance, the benefit of the doubt has to go to the accused.


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Judgement Reviewed by – Gnaneswarran Beemarao

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Judgement in 30 minutes: SC Dismisses Trial Judge’s Appeal Against Patna HC’s Observation Against Him For Conducting Hasty Trial.

  1. CASE TITLE – Sunita Devi v. The State of Bihar & ANR.

CASE NUMBER – Criminal Appeal No. 3924 of 2023 & Criminal Appeal Nos. 3926 – 3927 of 2023

DATED ON – 17.05.2024

QUORUM – Justice M.M. Sundresh & Justice S.V.N Bhatti


An FIR was registered in Crime No. 137 of 2021 for the occurrence that took place on 01.12.2021. The said complaint was filed by the mother of the victim on 02.12.2021. Accordingly, the case was registered under Section 376AB of the Indian Penal Code, 1860 (hereinafter referred to as the “IPC, 1860”) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the “POCSO Act, 2012”). The case of the prosecution in a nutshell is that the accused took advantage of a minor girl child and committed the offence of rape. The accused was arrested on 12.12.2021. He was produced before the concerned Judicial Magistrate on 13.12.2021 and remanded to judicial custody till 24.12.2021. On 12.01.2022, the charge-sheet was filed for the offences aforestated. The accused was produced through video conferencing on 15.01.2022. There was no advocate representing the accused, and the case was put up on 24.01.2022 for his production. On 20.01.2022, without the FSL report, the charge-sheet filed was taken on record. The prosecutor was directed to ensure the presence of the accused through video conferencing. The accused feigned his inability to engage a lawyer as he was behind bars. The case was adjourned to 22.01.2022 for framing of charges and for the supply of documents. On that day i.e. 22.01.2022, the counsel appearing for the accused was provided with the documents, without being given any time and without ensuring that these documents were in fact shown to the accused, followed by due consultation with his lawyer, directly arguments were heard on framing of charges. Thereafter, the charges were framed and explained to the accused through the virtual mode. On the very same date, an order was passed for summoning the prosecution witnesses. Strangely enough, an application was filed by the Investigating Officer to record the evidence of four witnesses in a single day, as a confidential information obtained, indicated that there was pressure from the family members of the accused. No notice was served either on the accused or his counsel, and the order was passed, without taking into consideration the Witness Protection Scheme, 2018. In disregard of the provisions of the Rules for Video Conferencing for Courts, 2020, the statements of the witnesses were recorded. After two days i.e. 24.01.2022, the remaining witnesses, including the Investigating Officer, were examined. There was no material to show that the accused was present at that point of time. To question under Section 313 of the CrPC, 1973 alone, the accused was brought through video conferencing. The repeated plea of adjournment by one week made by the counsel for the defence was once again rejected, while ultimately facilitating a day’s adjournment.

Two days thereafter i.e. 27.01.2022, the case was posted for sentencing. Upon hearing the accused, the death sentence was imposed by the trial court. The High Court, by the impugned judgment, called for the records and went through them thoroughly, finding that there is non-compliance of Sections 207, 226, 227 and 230 of the CrPC, 1973, set aside the conviction and sentence awarded by the trial Court, and ordered for a de novo trial. Incidentally, the approach adopted by the Trial Court was found faulty. Assailing the impugned judgment on merit, the informant has filed Criminal Appeal No. 3924 of 2023. Aggrieved over the observations made by the High Court, the learned Trial Judge has filed Criminal Appeal Nos. 3926-3927 of 2023.


The Protection of Children from Sexual Offences Act (POCSO Act), 2012, enacted to address child abuse and exploitation.

The Rules for Video Conferencing of Courts, 2020, enacted by India’s Supreme Court, established a framework for conducting court hearings virtually.

The Witness Protection Scheme, 2018, enacted to shield witnesses from intimidation and threats, ensuring they can testify freely in court.



The Learned Senior Counsel appearing for both the informant and the learned Trial Judge, submitted that the procedure established by law has been followed. The appellant has kept in mind the rigor of Section 309 of the CrPC, 1973 read with the provisions contained under the POCSO Act, 2012. Even assuming that there was a procedural flaw, given the mandate contained under Section 465 of the CrPC, 1973 he argued that there was no need for remittal. The Learned Senior Counsel further submitted that the appellant has discharged his judicial function and, therefore, any action without hearing him is contrary to law. Though the charges had been dropped, the observations made would be detrimental to his future career progression. The accused had antecedents and, therefore, the Trial Court rightly exercised due caution and mentioned that it was a case where no witness was produced on behalf of the defence.


The Learned Senior counsel appearing for the High Court and the accused submitted that admittedly there were serious procedural violations. Prejudice was sufficiently demonstrated before the court and stated that it would be impossible for a Judge to deliver the judgment within such a short span of time and no opportunity was given at every stage of the trial to the accused. The Learned Senior Counsel further stated that it was a clear case of  “justice hurried is justice buried”. And that there is no question of giving an opportunity to the appellant, the judicial officer, as no action is pending against him.


The Hon’ble Supreme Court found that the High Court, while passing both the impugned judgments, had not only called for the records and rendered findings of fact, but has also considered them in detail. At every stage, the accused was denied due opportunity to defend himself and was also of the notion that the appellant judicial officer was obviously acting in utmost haste. They noticed that at every stage, including framing of charges, there was a constant denial of due opportunity and hearing. The accused was not able to consult his lawyer. He was not even served with the copies, though his lawyer received the same before framing of the charges. The held that receiving of documents by his lawyer would not be sufficient compliance, unless there was sufficient time given for him to peruse them and thereafter have a consultation and also noted that neither the provisions of the Witness Protection Scheme, 2018 have been invoked nor the Rules for Video Conferencing for Courts, 2020 were followed. And also said that regarding the application filed seeking intervention over the action taken on the administrative side, it is for the appellant to approach the High Court. The present appeals were then dismissed by the Hon’ble Supreme Court and also gave instructions for the Trial Court to go over the case again while keeping in mind the POCSO Act, 2012 while recording the evidence of the victim.

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Judgement Reviewed by – Gnaneswarran Beemarao

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Proclamation against the accused was set aside when the time specified was less than 30 days to appear in a specific for an absconded accused : Bombay HC

TITLE : Deepak Sitaram Modhe v State of Maharashtra

CORAM : Hon’ble Justice Sarang V Kotwal

DATE :  22nd   December, 2023

CITATION : Criminal Application No. 1647 of 2023


The applicant was challenging the order passed by JMFC issuing proclamation under Section 82 of the CrPC. The applicant was accused under multiple provisions of the IPC, Arms Act and under Section 37 of the Maharashtra Police Act. The proclamation issued against the applicant directs him to appear before the Court in a short period from issuance of the order; whereas, Section 82 of the Cr.P.C. requires that there has to be period of at least 30 days after which only such offender can be directed to remain present. The magistrate while issuing arrest warrant noticed that the accused was not found and that he has absconded.


Section 82 – Proclamation for person absconding

(1) If Any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specific place and at a specified time not less than thirty days from the date of publishing such proclamation.


  1. Whether the proclamation be under 30 days?


The court held that  period cannot be less than 30 days. In the present case, the order is passed on 29.11.2023 and the applicant was directed to appear on 04.12.2023 and the order of the JMFC was set aside. It was also ordered that the said Court can initiate fresh process for issuing proclamation in accordance with requirement of Section 82 of the Cr.P.C.

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Written by- Sanjana Ravichandran

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