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2006 DIGILAW 1109 (GAU)

Amjad Ali v. State of Assam

2006-12-14

ANIMA HAZARIKA, P.G.AGARWAL

body2006
JUDGMENT A. Hazarika, J. 1. Heard Mr. J.M. Choudhury, learned Senior Counsel assisted by Mr. B.M. Choudhury, Advocate. Also heard Mr. K. Munir, learned Public Prosecutor, Assam. 2. This appeal is directed against the judgment and order dated 17.6.05 passed by the learned Sessions Judge, Bongaigaon, in Sessions Case No. 9(J)/2003, whereby the four accused-appellants have been convicted under Section 302/34 IPC and sentenced each of them to undergo rigorous imprisonment for life and to pay a fine of Rs. 1,000/- each, in default of payment of fine to undergo rigorous imprisonment for another six months each. 3. On 12.10.99, an ejahar was lodged by one Md. Moinul Haque (P.W. 6) before the Officer-in-Charge of Jogighopa Police Station, alleging that at around 11-30 pm in the night before, some assailants trespassed upon the house of his maternal uncle Md. Khalilur Rahman and killed him in his bed. In the FIR it was mentioned that the deceased had land disputes with Md. Samad Ali, Md. Salam Ali, Ali Haider, Sattar Ali and Amjad Ali from before. 4. On receipt of the FIR, police registered a case being Jogighopa PS case No. 50/99 under Section 302 IPC. The Investigating Officer (I.O. for short) visited the place of occurrence, recorded the statements of witnesses, held inquest on the deadbody, forwarded the dead body to the Goalpara Civil Hospital for postmortem examination. On being transferred from the Jogighopa Police Station, the I.O. handed over the case diary to the officer-in-charge (O.C. for short) of the police station. The O.C. collected the postmortem examination report. In the meantime, the four accused persons, namely, Amjad Ali, Samad Ali, Ali Haider and Salam Ali who were absconding, surrendered in the court of SDJM, North Salmara at Abhayapuri. Thereafter, on the basis of the statements of the witnesses, he had submitted charge sheet under Section 302/34 IPC against the four accused persons. 5. On commitment, the learned sessions Judge, Goalpara framed charge against the appellants under Section 302/34 IPC. Charges were read over and explained to the accused to which they pleaded not guilty and claimed to be tried. 6. During the course of trial, the prosecution examined as many as 10 witnesses including he Investigating Officer and the Medical Officer. The defence examined none. Charges were read over and explained to the accused to which they pleaded not guilty and claimed to be tried. 6. During the course of trial, the prosecution examined as many as 10 witnesses including he Investigating Officer and the Medical Officer. The defence examined none. From the trend in the cross examination as well as from the answers given to the questions put under Section 313 CrPC by the accused persons, it appears that the defence case is of complete denial. 7. In the present case, the incident of assault was witnessed by two witnesses, PW1 and PW3. We have perused the evidence and found that these two witnesses have supported and corroborated the statements of each other. 8. PW1, wife of the deceased, is a eye witness, who deposed that the occurrence took place on the night of 11.10.99. After taking meals, she laid a quilt on the floor and slept on it alongwith her husband and young children. The lamp had been burning inside the room. At about 11-30 or 12 O'clock in the night, the accused persons, namely Amzad Ali, Smad Ali, Salam Ali Salam Ali and Ali Haider, carrying torch lights in their hands entered the room. She further deposed that the door was wooden door and the hook of the door had not been locked. The accused persons came into the room by opening the door. Amjad Ali was carrying a dao. Having entered inside the room, Amjad had hacked husband of PW 1 in the neck with the dao. Samad was flashing the torch, while the rest two were standing beside the door. On being dealt with dao blow, her husband died instantly. His neck was completely severed. Clothes of PW1 also got blood stained. Seeing the occurrence, PW1 raised a shout and became unconscious. Hearing her shout, her daughter Saida Khatun and son Duna Miyan woke up. They also saw the accused persons. Dilwar Hussain, Siddique Ali, Moinul Haque all her neighbour came there. In the meanwhile the accused persons had fled away. Moinul Haque informed the police about the occurrence. The police came in the next day. She told the police the same thing. She narrated the incident before the police. During the cross-examination, PW1 stated that her husband, the deceased, had three other brothers. Mojibur is the eldest of them followed by Nur and Dilwar. Her husband was the youngest. Moinul Haque informed the police about the occurrence. The police came in the next day. She told the police the same thing. She narrated the incident before the police. During the cross-examination, PW1 stated that her husband, the deceased, had three other brothers. Mojibur is the eldest of them followed by Nur and Dilwar. Her husband was the youngest. They used to live in the same village. Complainant Moinul is Dilwar's son. The family of PW1 comprises of four sons and five daughters. She further deposed that her late husband used to do business. He also had the money lending business. He used to lend money after borrowing the same from others. PW1 stated that she could not recognize the person who had flashed the torch in to her eyes on the fateful night. She deposed that her deceased husband had disputes with the accused persons over the western boundary of their land but there had been no litigation in that regard. She went to the Police Station in connection with the incident. Other suggestions put to her by the defence have been denied. 9. PW 2 Dilowar Hussain is the younger brother of the deceased. His house is 3/4 houses away from the Khalilur's house. At the time of occurrence, he woke up hearing commotion from Khalilur's house. Immediately, he came to the house of Khalilur, the deceased and saw with his throat cut. On enquiry, he came to know that Amjad Ali, Samad Ali, Ali Haider and Salam Ali had killed Khalilur. He stayed there till the next morning. He was present till the police held inquest on the deadbody and after completion of the inquest, he signed in the inquest report vide Exhibit-1(1). During cross examination, PW 2 deposed that the deceased was a cultivator but he used to do money lending business also. He further deposed that there was a market in the name of Barjaha Madrassa School. The deceased had submitted a tender in connection with that market. Other suggestions put to him have been denied. 10. Saida Khatun (PW3) who is also an eye witness to the occurrence is the daughter of the deceased, Khalilur Rahman. Her deposition fully corroborates with that of PW 1. PW3 stated that her parents, younger brother and she had slept together. The hook of the door had not been closed. Other suggestions put to him have been denied. 10. Saida Khatun (PW3) who is also an eye witness to the occurrence is the daughter of the deceased, Khalilur Rahman. Her deposition fully corroborates with that of PW 1. PW3 stated that her parents, younger brother and she had slept together. The hook of the door had not been closed. At about 11-30pm, her mother (PW-1) raised a commotion. She woke up and saw the accused Samad Ali and Amjad Ali entering into the room. She saw Salam and Ali Haider at the door of the room and saw a dao in Amjad's hand. She saw her father lying dead with his throat cut and also saw the accused persons going out of the house. Later, hearing the commotion raised by her mother, Siddique Ali, Dilowar Hussain and Moinul Haque from the neighbour hood came there. Having seen their father with his throat cut, her brother became unconscious. Moinul Haque informed the police. On the next day Police came and held investigation. During the cross-examination, PW3 deposed that her father deceased Khalilur Rahman used to do cultivation work as well as money lending business. She further deposed that a lamp was burning in the room when the occurrence took place. The police took away the lamp during investigation. Other suggestions put to her have been denied. 11. PW4 Siddique Ali is the co-villager of the accused as well as the deceased. He deposed that hearing a commotion in the night, he came to the place of occurrence and saw Khalilur lying dead with his throat cut. From the family members of the deceased, he came to know that Amjad, Ali Haider, Samad Ali and Salam Ali had killed Khalilur. He was told that Amjad Had killed Khalilur by cutting his throat and other three accused were with him and subsequently they fled away. Police came in the next morning, held inquest on the dead body, signed and he had in the inquest report vide Ext. 1(2). During the cross examination, PW4 stated that the deceased was his paternal uncle. He wrote the ejahar as told by Moinul Haque (PW 6). He also stated that they had put the names of accused persons in the ejahar, though in the night none of the family members of the deceased told him about the occurrence. 12. 1(2). During the cross examination, PW4 stated that the deceased was his paternal uncle. He wrote the ejahar as told by Moinul Haque (PW 6). He also stated that they had put the names of accused persons in the ejahar, though in the night none of the family members of the deceased told him about the occurrence. 12. PW5 Samsul Haque is a Co-villager of the deceased and the accused. He stated that his nephew Jamiruddin informed him about the occurrence. Hearing the same, he went to the house of Khalilur and found Khalilur lying dead with cut in his person. People gathered at the place of occurrence verbally discussing that the accused persons might be behind Khalilur's murder. Police came in the morning and held inquest on the dead body and he had singed in the inquest report, Ext. 1. During the cross examination, he deposed that Khalilur was a "Dewani". The deceased had empty with Isahak, the decoit of Pahartali, as he had Isahak, the decoit, arrested by police. The PW 5 further deposed that Sattar and Moinul (PW 6) had quarrel over the land. 13. PW 6 is Moinul Haque. The deceased was his father's elder brother. He deposed that on the day of occurrence, hearing commotion in the east side, he came out of his house and saw Khalilur lying injured with cut mark on his person. He found the wife and daughter of the deceased alongwith other villagers. He further deposed that late Khalilur had dispute with the accused persons from before. PW6 lodged the ejahar in the next morning. He also signed in the Inquest report. During the cross examination, PW 6 stated that three days before the occurrence, the deceased had a quarrel with the accused Amjad in his presence. PW 6 also had quarrel with Sattar over land. He deposed that in his statement made before the police he told that the incident had probably been caused by the accused Amjad, Salam, Mansur and Sattar. 14. Md. Saflul Haque, PW7 is a co-villager of the deceased. He stated that hearing the commotion, he went to the place of occurrence and found the dead body of Khalilur with cut mark. He also found the wife and children of the deceased were crying. He also signed the Inquest Report vide Ext. 1(5). 14. Md. Saflul Haque, PW7 is a co-villager of the deceased. He stated that hearing the commotion, he went to the place of occurrence and found the dead body of Khalilur with cut mark. He also found the wife and children of the deceased were crying. He also signed the Inquest Report vide Ext. 1(5). During the cross examination, PW7 stated that all the accused persons alongwith other people arrived at the place of occurrence. 15. PW8 is the Investigating Officer. He deposed that after receipt of the FIR on 12.10.99 a case was registered and entrusted the same to him for investigation. During investigation, he visited the place of occurrence, recorded the statements of the witnesses, held inquest on the dead body vide inquest report Ext. I, forwarded the dead body for post mortem examination. He further deposed that during investigation he found sufficient materials against the accused persons but could not arrest them as they were found absconding. In the meantime, PW8 being transferred, he handed over the case diary to the O.C. of the concerned police station. During Cross examination, PW 8 stated that from 13.10.99 to 27.11.99 he was searching for the accused persons but could not traced them out. 16. PW9 the Officer-in-charge of Jogighopa Police Station deposed that on transfer of PW 8, the case diary was handed over to him. On going through the case diary, he found that the accused persons were to be arrested and postmortem report to be collected. Accordingly, he had collected the post mortem report and recorded the statement of one more witness namely, Joinal Abedin. The four accused persons meanwhile surrendered in the court of SDJM, North Salmara, Abhayapuri. Thereafter, he had submitted charge sheet under Section 302/34 IPC against the four accused persons vide Ext. 3. During the course of cross examination, he deposed that he had not interrogated the accused persons. 17. So far the death of the deceased on the day of occurrence at the time and place and as a result of injury sustained by him is concerned, there is overwhelming oral evidence as well as the medical evidence on record. Dr. Harmohan Mudoi (PW 10), who held the autopsy over the body of the deceased, Khalilur Rahman had found the following injuries: A deep cut wound from right to left. Size about 10x6 inch with sharp margin on neck. Dr. Harmohan Mudoi (PW 10), who held the autopsy over the body of the deceased, Khalilur Rahman had found the following injuries: A deep cut wound from right to left. Size about 10x6 inch with sharp margin on neck. Clotted blood was present which could not be washed out easily. Trachea cut, carotid vessel cut, Jugular vein cut. Bones cut with a gap of 2 inch. In the opinion of the doctor, the cause of death is due to haemorrhage and shock due to antemortem chopping of the neck by sharp cutting heavy weapon. In view of the above, the trial Court rightly held that this is a case of homicidal. 18. Coming to the question, as to who killed the deceased, we find that the two eyewitnesses have stated the names of the accused persons as assailants. The accused belong to the same village. They are known to the eyewitnesses as well as the other witnesses. 19. In the present case, we find that the two eyewitnesses had the occasion to see the accused persons from close quarter, inasmuch as, there was a lamp burning in side the room and as deposed by PW1 that Salam Ali and Ali Haider had torch lights in their hands. The names of the accused-appellants were also mentioned in the FIR, which was lodged immediately after the incident. The other evidences of the prosecution witnesses are all reported witnesses, who came after hearing the commotion and in the meantime, the accused persons had left the scene. But their evidences corroborated and supported the evidences of the two eyewitnesses. 20. The two eye witnesses along with PW2, PW4 and PW6 examined by the prosecution belong to the same family. They are closely related. The testimony of the witnesses in conjunction, leads to the inevitable conclusion that the accused persons in furtherance of their common intention had killed Khalilur by cutting his neck. The witnesses had been cross-examined at length but nothing could be elicited out of them to show that their substantive incriminating statement made against the appellants are not worthy of credence. The defence also could not bring out any omission or contradiction in their evidence. This is also evident from the evidence of PW 8 and PW 9 (the Investigation Officers). The evidence of Dr. The defence also could not bring out any omission or contradiction in their evidence. This is also evident from the evidence of PW 8 and PW 9 (the Investigation Officers). The evidence of Dr. Harmohan Mudoi (PW 10) shows that the death was due to haemorrhage and shock due to antemortem chopping of the neck by sharp cutting heavy weapon. 21. The two eyewitnesses have specifically mentioned the names of the accused and the defence has not suggested anything to the witnesses and also there was no reason on the part of these eyewitnesses to falsely implicate the accused persons in the case. 22. We have perused the case diary and found that in the statement made under Section 161 CrPC, the witnesses, more particularly, PW1 and 3 have deposed about the matter in the same manner and language in which they have deposed before the court. 23. In the present case, we find no reason on the part of PW1 and PW 3 to falsely implicate the accused appellants alleging killing of her husband and father respectively and allow the others to go scot-free. Further, we find the names of accused appellant were mentioned in the FIR which was lodged immediately after the incident and as such there was no scope for concoction or fabrication. 24. Mr. J.M. Choudhury, learned Senior Counsel, submitted that the evidence on record does not conclusively prove that the accused-appellants are the perpetrator of the alleged offence of murder in as much as, the deceased had received only one injury and as such the evidence of prosecution witnesses that all the accused-appellants had participate in the alleged commission of murder of Khalilur is not at all believable and therefore, the finding of guilt of the accused-appellants by the learned trial Judge is liable to be set aside. Learned Sr. Counsel further submitted that PW 1 and PW 3 being closely related to the deceased, they are interested witnesses and therefore, finding of guilt on the basis of inimical and interested witnesses is liable to be set aside and quashed. The learned Sr. Counsel drawing the attention of the court to the grounds set forth in the appeal, submitted that, the accused appellants are entitled for acquittal on benefit of doubt. 25. Mr. K. Munir, learned P.P., while repelling the argument advanced by the learned Sr. The learned Sr. Counsel drawing the attention of the court to the grounds set forth in the appeal, submitted that, the accused appellants are entitled for acquittal on benefit of doubt. 25. Mr. K. Munir, learned P.P., while repelling the argument advanced by the learned Sr. Counsel for the appellant submitted that the learned Sessions Judge convicted the accused appellant according to law on the basis of the evidence adduced by the prosecution. He had specifically drawn our attention to the fact that immediately after occurrence the accused persons absconded from their respective residences for a pretty long time and ultimately surrendered in the court of learned SDJM, North Salmara. The learned P.P. further submitted that the ocular evidence of PW 1 and PW 3 and the immediate absconding of the accused persons just after the occurrence and their surrender in the court below are sufficient to rope the accused appellants under Section 302/34 IPC. 26. Regarding credibility of related witnesses in the case of State of U.P. v. Samman Das reported in 1972 CriLJ 487, the Apex Court observed as follows: ...relationship of the prosecution witness to the deceased itself is not sufficient for disbelieving his testimony unless the motive is alleged and proved against them to spare the real assailant it is well known that the close relative of a murdered person are most reluctant to spare the real assailant and alsely involve another person in place of the assailants.... 27. Coming to the point of receiving single injury, this Court finds that though the eyewitness PW1 has deposed that accused Amjad Ali gave blow by means of dao on the neck of the deceased causing his death, the presence of the other accused persons on the fateful night in the house of the deceased as stated by PW 1, clearly indicates that all the accused persons had a common intention to commit the crime. As all the four accused persons had moved together to the house of the deceased on the fateful night armed with dao and one of them caused the death of the deceased by cutting his neck, it must be held that they had premeditated plan of killing the deceased and in furtherance of their common intention had committed the offence, more so, PW1 has deposed that the accused Samad focussed the torch and accused Amjad gave blow on the neck of the deceased by means of dao and the other two accused persons Salam and Ali Haider were standing at the door. In view of the above, it is proved that the accused persons had common intention in commission of the crime. Hence, we hold that the accused persons had common intention and in furtherance of there common intention, caused the death of the deceased Khalilur Rahman. 28. In this regard we may refer to a decision in Israr v. State of U.P. reported in AIR 2005 SC 249 wherein the Hon'ble Apex Court held as follows: 21. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true contents of the section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab the existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. 22. As it originally stood Section 34 was in the following terms: 34. When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone. 23. In 1870, it was amended by the insertion of the words "in furtherance of the common intention of all" after the word "persons" and before the word "each", so as to make the object of Section 34 clear. This position was noted in Mahbub Shah v. Emperor. 24. The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy v. State of A.P. Section 34 is applicable even if no injury has been caused by the particular accused himself. As was observed in Chinta Pulla Reddy v. State of A.P. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused. 25. The above position was highlighted recently in Anil Sharma v. State of Jharkhand. 26. In Afrahim Sheikh v. State of W.B. this Court stated that no doubt a person is only responsible ordinarily for what he does and Section 38 IPC ensures that. But Section 34 as well as Section 35 provide that if the criminal act is the result of the common intention, then every person who did the criminal act with such intention would be responsible for the total offence irrespective of the share which he had in its perpetration. The logic highlighted illuminatingly by the Judicial Committee in the illustrious case of Barendra Kumar Ghosh v. King Emperor, is that in crimes as in other things "they also serve who only stand and wait." 29. Section 34 IPC has, therefore, been rightly applied in the instant case. The evidence of all the witnesses read together alongwith the nature of the injury and weapon used and also taking into consideration, the incriminating circumstances of absconding of the accused persons immediately after the occurrence and their subsequent surrender in the Court of SDJM, North Salmara at Abhayapuri, which remained uncontroverted, clearly indicate that the accused appellants were responsible for causing death of Khalilur in furtherance of their common intention. In our considered opinion, prosecution has been able to prove the charge beyond all reasonable doubt. 30. In view of the legal and factual position noted above, the irresistible conclusion is that the accused appellants have been rightly found guilty by the learned trial court under Section 302/34 IPC for causing death of Khalilur and sentenced them according to law. 31. we find no merit in this appeal and hence, the appeal stands dismissed. Send down the records. Appeal dismissed.