Saddam Hussain vs The State Of Assam And Anr.

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GAHC010087132023

2026:GAU-AS:6983-
DB

THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./150/2023
SADDAM HUSSAIN
S/O NUR MAHAMMAD ALI,
R/O HABIDONGRA,
P.O.- HABIDONGRA,
P.S.- BAGHBOR,
DIST.- BARPETA (ASSAM).
VERSUS
THE STATE OF ASSAM AND ANR.
TO BE REP. BY THE P.P., ASSAM.
2:KABEL MIA
S/O LATE RAHAM ALI

R/O HABIDONGRA

P.O.- HABIDONGRA

P.S.- BAGHBOR

DIST.- BARPETA (ASSAM)
PIN- 781308
Advocate for the Petitioner : MR. A AHMED
Advocate for the Respondent : MS. B BHUYAN, SR. COUNSEL & ADDL. PP
MS. N DAS

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BEFORE
HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON’BLE MR. JUSTICE SANJEEV KUMAR SHARMA

Date on which judgment is reserved : 13.05.2026
Date of pronouncement of judgment : 20.05.2026
Whether the pronouncement is of the : N/A

operative part of the judgment ?
Whether the full judgment has been : Yes
pronounced?

JUDGMENT & ORDER (CAV)

(Sanjeev Kumar Sharma, J)
Heard Mr. A Ahmed, learned counsel for the appellant. Also heard Ms. B
Bhuyan, learned Senior Counsel & Addl. Public Prosecutor for the State of
Assam.
2. This appeal is directed against the Judgment & Order dated 28.03.2023
passed by the learned Sessions Judge, Barpeta in connection with Sessions Case
No. 98/2018 convicting the accused/appellant under Section 302 IPC and
sentencing him to undergo Rigorous Imprisonment for life and to pay a fine of
Rs. 5,000/-, in default to undergo R.I for 1 year.

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3. The case of the prosecution in brief is that on 28.04.2017 one Kabel Miya
lodged an FIR before the I/C of Mandia Police Out Post under Baghbor police
station to that effect that in the year 2015, his daughter Farida Khatun was
married to accused Saddam Hussain, that since after her marriage she was
subjected to mental and physical torture by her husband accused Saddam
Hussain as per ill advice of the FIR-named accused, namely, Nur Mahammad Ali.
Mamtaz Begum, Sahanur, Mirjul, Matior Rahman, Sahera Khatun, wife of
Lalchan, Magrab Ali and Tara Bhanu. Four months before the date of filing the
FIR accused Saddam Hussain got the pregnancy of Farida Khatun aborted by
administering medicine. On 27.04.2017 at about 4:00 PM, accused Saddam
Hussain took Farida Khatun in a bike to the house of Tara Bhanu and on
28.04.2017 accused Saddam Hussain murdered Farida Khatun in the house of
accused Tara Bhanu and with the help of one driver of a Tempo the dead body
of Farida Khatun was taken to an unknown place and when it came to the
notice of public, the accused threw the dead body of Farida Khatun in the
compound of Chan Mamud of Habidongra village.
4. A case was registered against the accused persons U/S
120(B)/315/302/201/511 IPC.

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5. At the time of filing of the charge-sheet accused Saddam Hussain and
Mahar Ali were in a judicial custody. Accused Nur Mahammad Ali already got bail
and accused Mamtaz Begum was shown as absconder. Final report was
submitted by the I.O against Mirjul, Matior Rahman, Sahara Khatun, wife of
Lalchan, Magrab Ali and Tara Bhanu. The charge-sheet was submitted U/S
120(B)/201/511 IPC against accused Nur Mahammad Ali, Mamtaz Begum,
Mahar Ali and juvenile accused Sahanur and Saddam Hussain U/S
120(B)/302/201/511 IPC.
6. Upon committal, charge was framed against the four accused persons,
namely, Saddam Hussain, Mahar Ali, Mamtaz Begum and Nur Mahmad Ali,
under Section 302/201 IPC.
7. Upon conclusion of the prosecution evidence, the accused persons were
examined under Section 313 Cr.P.C and defence declined to adduce any
evidence. Thereafter, the present accused/appellant was convicted under
Section 302 IPC. Rest of the accused were acquitted. Hence, the present
appeal.
8. A perusal of the evidence on record would go to show that other than the
evidence of PW-1 informant, PW-2 Medical Officer and PW-12, the I.O., the rest

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of the witnesses are not relevant for the purpose of the present appeal as the
evidence of the remaining witnesses are clearly hearsay, some of them having
turned hostile while some others were declined to be cross-examined by the
defence.
9. Informant Kabel Miya (PW-1) in his evidence has stated that his daughter
Farida Khatun was subjected to physical torture by her accused husband in his
house. But he cannot say as to why Farida Khatun was ill treated physically by
her husband. Having learnt about physical torture one day he visited her with a
dewani (village headman). On that day he noticed injuries particularly in her
neck. Accused Saddam Hussain, Matiur and the other family members of
accused Saddam assured him that they would provide her medical treatment.
Then he was advised to approach police by the villagers. When he reached the
house of accused with police, an attempt was made to assault her physically by
Matiur. At that time also Farida was not allowed to leave her marital home.
Thereafter, police arranged a settlement between the two sides. One week
thereafter Saddam Hussain took Farida to the house of Mahar Ali and killed
Farida there and thereafter the dead body of Farida Khatun was taken away in
an Auto. Having learnt about the incident he informed the police. Thereafter, the
dead body of Farida was recovered under a mango tree in the compound of
Lalchan, elder brother of accused Saddam. By that time the accused absconded.

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Police took the dead body and got the postmortem done. Thereafter the dead
body of Farida Khatun was handed over to him. On that day he filed the FIR.
10. In his cross examination, he stated that accused Saddam Hussain and
Farida Khatun had a love affair and it culminated into a registered marriage
between them. Farida was suffering from paralysis in her left side and therefore
she walked slowly. In spite of her paralytic condition, Saddam Hussain married
her. He denied the suggestion that he did not state before the I.O. that after
knowing the fact of ill treatment caused to Farida Khatun he went to the house
of the accused with one dewani and Farida Khatun was found with injuries and
that the accused Saddam Hussain Matiur and the family members of Saddam
Hussain assured him to provide medical treatment to Farida Khatun as the fact
of attempt to assault her physically by Matiur, and also the fact of a settlement
arrived between the parties at the instance of police in the police station. In his
cross examination he also stated that he was not aware the fact of breathing
problem of Farida Khatun that occurred at about 6:30 AM and also the fact of
taking of Farida Khatun to Barpeta medical in an Auto rickshaw by accused
Saddam Hussain. He denied the suggestion that Farida Khatun lost her life on
her way to hospital.

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11. PW-2 Dr. Mamta Devi conducted postmortem of dead body of Farida
Khatun on 29.04.2017 and found no ligature mark on the neck of the dead body
but on dissection neck muscles are contused, blue in colour. An inward
compression fracture of the left side of hyoid bone at the junction of greater
and scenes horn is present. As per the deposition of doctor nothing abnormal is
detected in cranium, spinal canal, thorax, abdomen, muscles, bones and joints.
Her opinion is that the death was due to asphyxia as a result of manual
strangulation and all injuries described were antemortem and homicidal in
nature. She did not find any ligature mark on the neck of the dead body of the
deceased. A fracture on the neck was detected. There was no external injury
around the neck. The injury on the neck of the deceased cannot be caused on
falling, opined the M.O.
12. PW-12 Mwblik Brahma has stated that on 28.04.2017 he received a phone
call from Gaonburah of Habidongra regarding the murder of Farida Khatun by
her husband Saddam Hussain. He made a G.D. entry and thereafter he
proceeded to the place of occurrence. He found the dead body of Farida Khatun
in the courtyard of Lalchan. He recorded the statement of the witnesses, drew
sketch map of the place of occurrence and the dead body was taken to the
police station where the inquest was done and thereafter the dead body was

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sent for postmortem. He proved Ext.P-4 an extract copy of GD entry No.487
dated 28.04.2017. He submitted charge-sheet Ext.P-6 and Ext.P-6(1) as his
signature.
13. In his cross examination PW-12 stated that PW-1 Kabil Miya did not tell
him that he had gone to the house of Farida Khatun with a dewani to fetch her
and also noticed injuries in the neck of Farida or that the accused Saddam,
Matiur and the family members told him that they would provide medical
treatment to Farida, that accused Matiur had chased after him to cause assault
on him, that even in presence of police Farida was not allowed to leave her
marital home, that thereafter police intervened the matter and allowed the
accused persons to take the custody of Farida, that receiving information when
he went to the house of Saddam Hussain he found the dead body of Farida
under a mango tree located in the house of his elder brother, and the fact of
fleeing away of accused Saddam Hussain.
14. Mr. A Ahmed, learned counsel for the appellant submitted that the findings
and conclusions of the learned trial court, which was based on circumstantial
evidence, inasmuch as there is no eye witness to the occurrence, are
themselves based on hearsay evidence as emanating from the deposition of the

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PWs. PW-1, the informant, is not an eye witness and the said fact is evident
upon a perusal of his evidence. Although the PW-1 had deposed that prior to
one week of the occurrence, having learnt about the physical torture upon the
victim by the accused, the informant/father of the victim visited her with a
diwani and he noticed injuries upon the victim, particularly on her neck and
when he subsequently reached the house of the accused with the police upon
advise of the villagers, an attempt was made to assault the victim by the
accused Matiur, and the victim was not allowed to leave her marital home, but
the same did not relate to the day of the occurrence which was one week later.
It is further stated that the medical evidence also does not conclusively prove
that the death of the deceased was homicidal in nature. As for the rest of the
witnesses, it is apparent upon a perusal of the same that all of their depositions
are hearsay in nature.
15. At this juncture, our attention is drawn to the cross-examination of PW-1
to whom it was asked whether he was aware of the fact of breathing problem of
the victim having occurred at about 6:30 a.m and also the taking of the victim
to Barpeta Medical College & Hospital in an Auto-rickshaw by the
accused/appellant Saddam Hussain, the awareness of which facts PW-1 denied.
He further denied the suggestion that the victim lost her life on her way to the

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hospital. Therefore, it appears from the aforesaid suggestions that the defence
stand is that the deceased was with the appellant at the time of her death.
16. In the impugned judgment, at paragraph 26 thereafter, the learned trial
court had held as follows:
“26…….If we believe the projected fact for the accused Saddam
Hussain that on that day Farida Khatun was sick and he was
carrying Farida Khatun to the hospital then it will show that accused
Saddam Hussain was near his wife. There is no explanation from the
side of the accused Saddam Hussain as to how the body of Farida
Khatun came to the compound of Lalchan. In the evidence of PW-4
Joygon Nessa and PW-6 Abu Taleb Azad, it has come that they
found the dead body of Farida Khatun in the compound of Lalchan.”
17. From the above, it appears that the learned trial court had relied on the
aforesaid material, amongst others to return a finding of guilt as against the
present appellant. However, upon a perusal of the defence statement recorded
under Section 313 Cr.P.C., it is clear that the only questions put to the
accused/appellant and the answers thereof are as follows:
“Q: P.W. Kabel Miya has deposed that you physically assaulted your
wife Farida and when he wanted to take her with him, you did not
allow it. Do you have anything to say regarding this?

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Ans: This is false.
Q: He has also deposed that that you took Farida to Mahar Ali's
house, killed her there, and brought back the dead body to your
home. Do you have anything to say regarding this?
Ans: This is false.
Q: P.W. Jakir Hussain has deposed that you threw Farida's dead
body on the courtyard of Lalchand's house. Do you have anything to
say?
Ans: This is false.
Q: Do you have anything to say regarding the incident?
Ans: No.
Q: Do you want to adduce evidence in defense?
Ans: No.”
18. It is trite law that all the incriminating circumstances appearing in the
evidence against the accused must be put to him in his examination under
Section 313 Cr.P.C., and the Court cannot rely upon any such circumstance if the
same has not been put to the accused, which resultantly causes prejudice to the
accused.
19. In the instant case, a perusal of the defence statement recoded under
Section 313 Cr.P.C makes it clear that the evidence of PW-1 towards the end of

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his cross-examination when certain questions/suggestions were put to the PW-
1, which he denied and which amount to an admission on the part of the
defence and therefore, constitute an incriminating piece of material against the
accused/appellant, was not put to the accused/appellant while recording his
defence statement, but at the same time the learned trial court, at paragraph 26
of the impugned judgment has specifically relied upon the same, as stated
hereinbefore, while arriving at its conclusion and returning a finding of guilt
against the present appellant, which has caused prejudice to the
accused/appellant.
20. In Paramjeet Singh @ Pamma vs. State of Uttarakhanda, reported in
(2010) 10 SCC 439 the Hon'ble Apex Court held that it is evident from the above
that the provisions of Section 313 Code of Criminal Procedure make it obligatory
for the court to question the accused on the evidence and circumstances against
him so as to offer the accused an opportunity to explain the same. But, it would
not be enough for the accused to show that he has not been questioned or
examined on a particular circumstances, instead, he must show that such non-
examination has actually and materially prejudiced him and has resulted in the
failure of justice. In other words, in the event of any inadvertent omission on
the part of the court to question the accused on an incriminating circumstances

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cannot ipso facto vitiate the trial unless it is shown that some material prejudice
was caused to the accused by the omission of the court.
21. It is also held in Nar Singh vs. State of Haryana, reported in AIR 2015 SC
310 that the question whether a trial is vitiated or not depends upon the degree
of the error and the accused must show the non-compliance of Section 313
Code of Criminal Procedure has materially prejudiced him or is likely to cause
prejudice to him. Merely because of defective question Under Section 313 Code
of Criminal Procedure, it cannot be inferred that any prejudice had been caused
to the accused, even assuming that some incriminating circumstances in the
prosecution case had been left out. When prejudice to the accused is alleged, it
has to be shown that accused has suffered some disability or detriment in
relation to the safeguard given to him Under Section 313 Code of Criminal
Procedure. Such prejudice should also demonstrate that it has occasioned failure
of justice to the accused. The burden is upon the accused to prove that
prejudice has been caused to him in the facts and circumstances of the case,
such prejudice may be implicit and the Court may draw an inference of such
prejudice. Facts of each case have to be examined to determine whether
actually any prejudice has been caused to the Appellant due to omission of
some incriminating circumstances being put to the accused.

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22. In the present case, in view of the fact that an important and vital piece of
incriminating material which has been relied upon by the learned Court, to
convict the accused appellant having been omitted during the examination of
the accused/appellant under Section 313 Cr.P.C., the prejudice caused to him is
implicit and need not be proved by the accused separately by the accused.
23. Under the aforesaid circumstances, we are of the view that this is a fit
case for remanding the matter back to the learned trial court for the limited
purpose of putting all the incriminating circumstances, as may be available in
the evidence recorded, including the one referred to above to the accused, by
way of an additional examination under Section 313 Cr.P.C to be conducted by
the learned trial court and to pass judgment afresh, taking into consideration
all relevant material and after hearing the parties.
24. The questions already put to the accused previously during his
examination under section 313 Cr.P.C need not be reiterated.
25. With the aforesaid direction, the matter is remanded to the learned trial
court by setting aside the impugned judgment.
26. Needless to say that this shall not entitle the appellant to be released on

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bail and he shall continue to remain in custody untill further order.
27. Send back the TCR.
28. It is expected that upon receipt of the case records, the learned trial court
shall complete the exercise, preferably within a period of 1 (one) month
thereof, and pass fresh judgment as per law.
29. The appeal stands disposed of.
JUDGE JUDGE

Comparing Assistant