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2005 DIGILAW 684 (GAU)

Moyazzam Hussain v. State of Assam

2005-09-15

AFTAB H.SAIKIA, D.BISWAS

body2005
D. BISWAS, C.J. (ACTG.)— The appellant Moyazzam Hussain was tried by the learned Ad-hoc Addl. Sessions Judge, Bongaigaon in Sessions Case No. 57(A)/2001 and on conviction under Section 302 of the Indian Penal Code, was sentenced to imprisonment for life and to pay a fine of Rs. 2000/-, in default to undergo further R.I. for one month. Being aggrieved, this appeal has been preferred controverting the legality and correctness of the judgment of the learned Ad-hoc Addl. Sessions Judge. 2. We have heard Mr. S.K. Medhi, learned amicus curiae appearing on behalf of the appellant and Mr. D. Das, learned Public Prosecutor, Assam. 3. The prosecution story as unfurled in the FIR, Exhibit-1 lodged by Jahidul Islam, P.W. 1 is that the accused-appellant along with his younger brother Md. Aminul Islam and sister Afreja Khatun went out for cutting grass on 25.10.99. There the appellant killed Aminul Islam by hacking him on his neck and fled away from the place of occurrence. Afreja came home crying and informed about the occurrence. All the family members along with the neighbours rushed to the place of occurrence where Aminul was found lying dead. The Officer-in-Charge, Abhayapuri P.S. on receipt of the FIR registered Abhayapuri P.S. Case No. 125/99 under Section 302 IPC and endorsed the same for investigation to Baliram Bora, S.I. of Police. The Investigating Officer during the course of investigation prepared the inquest report, Exhibit-2 and sent the dead body, to Goalpara Civil Hospital for post mortem examination. He also prepared a sketch map, Exhibit-5 and eventually submitted chargesheet against the appellant under Section 302 IPC for causing death of Aminul Islam. 4. The learned Ad-hoc Addl. Sessions Judge, on commitment of the case, framed charge against the appellant under Section 302 IPC for causing death of Aminul Islam intentionally. The appellant denied the charge framed against him and pleaded not guilty. Thereafter, the learned Sessions Judge proceeded with the trial, recorded evidence of ten witnesses produced by the prosecution including the Medical Officer and the Investigating Officer and delivered the judgment convicting and sentencing the appellant as aforesaid. 5. The inquest report, Exhibit-2 shows that the deceased was aged about 3 years and was lying dead near a 'gamari' tree beside a bamboo groove with injury on the neck. The inquest report was prepared after the dead body of Aminul Islam was identified by Md. 5. The inquest report, Exhibit-2 shows that the deceased was aged about 3 years and was lying dead near a 'gamari' tree beside a bamboo groove with injury on the neck. The inquest report was prepared after the dead body of Aminul Islam was identified by Md. Eyad Ali, father of the deceased and others. 6. Let us at this stage refer to the evidence of P. W. 8 Dr. Dipak Kr. Sarma who had performed the post mortem examination on the dead body of deceased Aminul Islam. According to this witness, the deceased was aged about 3 years and identified by Sri Kanak Boro, Constable No. 220. The injuries found by him and the opinion tendered are quoted below: "(1) A cut throat injury just below the thyroid cartilage, size-3 in length 11/2 in breadth and 2 in depth. Blood clot is present on the wound. Margin is well defined. (2) Trachea and oesophagus cut completely by the cut throat injury. Carotid vessels cut completely by the injury on both sides. Injuries were antemortem in nature. Opinion: In my opinion the death of the deceased was due to shock and haemorrhage as a result of injuries sustained by the deceased which was homicidal and antemortem in nature. The injuries found above is sufficient in the ordinary course of nature to cause a person dead. Ext. 3 is the post-mortem report. Ext. 3 (1) is my signature. Ext. 3(2) is the signature of Joint Director, Health Services, Goalpara." 7. The evidence of P. W. 8 read with the inquest report clearly establish that Aminul died due to shock and haemorrhage resulting from the injuries sustained by him. Being satisfied as to the cause of death of Aminul, we now propose to examine the evidence on record to examine and determine as to whether the prosecution has been able to discharge its burden to prove beyond reasonable doubt that the appellant had intentionally caused death of his younger brother Aminul. 8. P. W. 1 Jahidul Islam is the informant. He lodged the FIR, Exhibit-1. He is not an eye-witness to the occurrence. He returned from Barpeta Road Market at around 3 p.m. and heard that Aminul was dead and his dead body was lying at a distance of 11/2 k.m. from their house. 8. P. W. 1 Jahidul Islam is the informant. He lodged the FIR, Exhibit-1. He is not an eye-witness to the occurrence. He returned from Barpeta Road Market at around 3 p.m. and heard that Aminul was dead and his dead body was lying at a distance of 11/2 k.m. from their house. He also heard from Afreza Khatun, P.W. 3, sister of the deceased and the appellant that the appellant had killed Aminul. P.W. 2 Eyad Ali is the father of the deceased as well as the appellant. According to him, the appellant is his son through his first wife Sofia Khatoon and Aminul (since deceased) was also his son through his second wife. Afreza Khatun, P.W. 3 is his daughter through the second wife. On the day of occurrence he along with his second wife went to the field for chilly cultivation. At that time a boy came to the field and informed that something had happened and in that incident the appellant killed Aminul. This witness became senseless and remained unconscious for seven days. He only heard from Afreza Khatun that the appellant had killed Aminul. At this stage the witness was declared hostile and suggestions put to him by the prosecution were denied. Of all the suggestions the most important is with regard to his statement to the police that he learnt from his daughter Afreza that accused Moyazzam dragged Aminul to the paddy field, confined him by a rope, assaulted him by sandal and cut him on the stomach and the neck by 'Khanti'. P. W. 9 Baliram Boro, the Investigating Officer in his evidence proved this contradiction. 9. RW. 3 Afreza Khatun is the star witness of this case as it is only she who was present at the time of occurrence. On the date of her examination she was nine years old and on the date of occurrence it appears that she was five years old. The learned Ad-hoc Addl. Sessions Judge before recording her statement tested her prudence to understand and answer the questions and on being satisfied, proceeded to record her statement dispensing with the administration of oath. This witness in her evidence stated as follows: "I know accused Moyazzam Hussain who is my elder brother. Before four years, occurrence of this case had taken place. Sessions Judge before recording her statement tested her prudence to understand and answer the questions and on being satisfied, proceeded to record her statement dispensing with the administration of oath. This witness in her evidence stated as follows: "I know accused Moyazzam Hussain who is my elder brother. Before four years, occurrence of this case had taken place. On the date of incident at noon I went to paddy field along with my younger brother Aminul to play. After some time, accused Moyazzam Hussain came to the field and he called back my brother Aminul, thereafter, Aminul was confined with a rope, assaulted him by sandal on stomach and neck. Thereafter, my brother Aminul Islam fell upon ground and then struck him on neck by a 'Khanti' (an instrument of digging earth). Seeing this I reported to my father and mother who was in chilli plantation." 10. RW. 3 was cross-examined at length. But defence could not elicit anything out of her in favour of the appellant. She had reiterated her allegation against the appellant. 11. RW. 4 Md. Sultan Mamood is a signatory to the inquest report. He is not an eye witness. He went to the place of occurrence after hearing from Afreza Khatun, P. W. 3 that Aminul was killed by the appellant. Similar is the evidence of RW. 5, RW. 6 and RW. 7. They are all hear-say witnesses and, therefore, their evidence as such is not of much significant. After hearing about the murder of Aminul, all of them went to the place of occurrence and saw the dead body of Aminul lying with cut injuries. All of them have stated uniformly that they came to know from P. W. 3 that the appellant had killed Aminul. 12. RW. 3 Afreza Khatun is the only eye witness. She was five years old at the time of occurrence. From her evidence we find that the appellant tied Aminul with a tree, assaulted him and, thereafter, killed him with a 'khanti'. Considering the tender age of this witness it would have been a difficult proposition to found conviction on a charge of murder. But the surrounding circumstances available from the evidence on record are so clinching that there cannot be any room for any doubt that the appellant had killed Aminul. Considering the tender age of this witness it would have been a difficult proposition to found conviction on a charge of murder. But the surrounding circumstances available from the evidence on record are so clinching that there cannot be any room for any doubt that the appellant had killed Aminul. The surrounding circumstances are as follows: i) The evidence of P. W 2 that he heard 'from Afreza that the accused appellant had killed Aminul gains support from the evidence of other witnesses who had stated that they were told by Afreza that the appellant had killed Aminul. ii) All the witnesses immediately rushed to the place of occurrence and found that Aminul was lying dead with injuries on his neck. iii) RW. Mahendra Barman, S.I. who had ultimately submitted the chargesheet after collection of the post mortem report, stated that he had tried to arrest the accused and gone to his house on several days to apprehend him but he could not arrest the accused since he was absconding. Thereafter, P. W. 10 submitted the chargesheet showing the appellant as absconder. 13. From the above circumstances, the evidence of P. W. 3 Afreza Khatun that she had seen the appellant causing death of Aminul .by a 'Khanti' by cutting him on the neck stands established. In a given case the evidence of the lone child witness may also be relied upon for the purpose of conviction, provided the attending circumstances read with the evidence of the child witness inspire the Court to act upon the evidence of the child witness. 14. The motive for the crime is not discernible from the evidence on record. There is also no evidence to suggest any pre-meditation before the offence was committed. The accused-appellant was around 19 years of age on the date of occurrence and he has been in custody since conviction. All these justify a lighter punishment than the imprisonment for life. Hence, the conviction is converted to one under Section 304, Part-n of the Indian Penal Code and on such conviction the appellant is sentenced to imprisonment for five years. The period spent in custody shall be set off from the above sentence. 15. The appeal, thus, stands partly allowed.