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2007 DIGILAW 536 (GAU)

Nazrul Islam v. State of Assam

2007-08-10

AFTAB H.SAIKIA, T.NANDA KUMAR SINGH

body2007
T. Nanda Kumar Singh, J.:- 1. The challenge in this appeal is to the impugned judgment and sentence dated 4.9.2003 passed by the learned Sessions Judge, Morigaon in Sessions Case No. 45/2002 (G.R. Case No. 274/2001) convicting the appellant-accused for the offence punishable under section 302, Indian Penal Code ('IPC') and sentencing him to undergo rigorous life imprisonment with a fine of Rs. 5,000 in default for another year for committing the murder of his father Late Haji Abdul Hasen Mir. 2. Heard Mr. R. Adhikary, learned amicus curiae for the appellant- accused as- well as Mr. K.A. Mazumdar, learned Public Prosecutor, Assam for the respondent. 3. The appellant-accused faced for a trial for the offence under section 302, IPC on the case of the prosecution, in a nut shell, mentioned hereunder. 4. PW No. 11 Md. Mainol Haque (brother of the appellant-accused) lodged an ejahar to the Officer-in-charge, Mayong P.S. on 23.6.2001 stating that at about 5 A.M on 23.6.2001 his father (deceased) arrived at Kuranibari through the Government road from Nakarahabi Village. On reaching the pond belonged to Abdul Jalil (PW-4), his brother Nazrul Islam (appellant-accused) had killed his father Late Haji Abdul Hasen Mir by stabbing with a dagger in the greed of ancestral property and threw the dead body into the water. After committing such offence the appellant-accused fled away. Just at that time PW-2, Nur Mohammed Maulana, a Madrassa teacher who was coming from Kukuwari on his . way towards Garumara Moktab Madrassa witnessed the entire occurrence. 5. In support of the prosecution case, the prosecution examined 8(eight) witnesses, namely, PW-1 Mainul Haque (brother of the appellant-accused/informant), PW-2 NoorMahammad, PW-3, Md Julmat Ali (son-in-law of the deceased/brother-in-law of the appellant-accused). PW-4 Abdul Jalil, PW-5 Smti Forida Begum (eye witness), PW-6 Must. Bedena Khatoon, PW-7 Dr. Rajendra Prasad Bora (who performed the post mortem) and PW-8 Abdul Hasen, (I.O.). 6. PW-1, Mainul Haque (informant/ brother of the appellant-accused and PW-2 (Noor Mahammad) had been declared hostile by the prosecution. PW-1 and PW-2 are the important witnesses so far as the case of the prosecution is concerned. 7. The Apex Court in Koli Lakhmanbhai Chanabhai v. State of Gujarat, AIR 2000 SC 210 held that the evidence of the hostile witness cannot be treated as washed off the record. PW-1 and PW-2 are the important witnesses so far as the case of the prosecution is concerned. 7. The Apex Court in Koli Lakhmanbhai Chanabhai v. State of Gujarat, AIR 2000 SC 210 held that the evidence of the hostile witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence. By section 9 of the Criminal Law (Amendment) Act, 2005 (Act No. 2 of 2006) sub-section (2) has been inserted to section 154 of the Evidence Act. Section 9 of the Criminal Law (Amended) Act, 2005 (No. 2 of 2006) r«ad as follows : "CHAPTER IV AMENDMENT TO THE INDIAN EVIDENCE ACT, 1872. 9. Amendment of section 154 of Act 1 of 1872. - In the Indian Evidence Act, 1872, section 154 shall be numbered as sub-section (1) thereof and after sub-section (1) as so numbered, the following sub-section shall be inserted, namely: - "(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness." 8. The Apex Court in Pandappa Hanumappa Hanamar and Another v. State of Karnataka, (1997) 10 SCO 197 held that the entire evidence of the hostile witness does not necessarily stand discredited and there is no legal bar to base conviction upon the statement of hostile witness if corroborated by other reliable witness. The Apex Court further held that conviction could be based on the statement of solitary witness if found credible. Paras 15 and 16 of the SCC in Pandappa Hanumappa Hanamar (supra) read as follows : "15. In Sat Paul v. Delhi Admn. this court had occasion to consider the question whether the entire evidence of a prosecution witness, who turns hostile and is cross-examined by the public prosecution with the leave of the court, is to be discarded altogether. After discussing the law on the subject and the decisions of this court and High Courts on the aspect the court observed as under: (SCC pp. 745-46, Para 52). "From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. 745-46, Para 52). "From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact 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 in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto." 16. A similar view was expressed by a three-Judge Bench of this court in Bhagwan Singh v. State of Haryana when it stated that the fact that the court gave permission to the prosecution to cross-examine his own witness, thus, characterizing him as, what is described as a hostile witness, does not completely efface his evidence. ^Tie evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence." 9. The Apex Court is of the similar view in Leila Srinivasa Rao v. State of A.P., (2004) 9 SCC 713 . 10. The learned Sessions Judge, Morigaon, after meticulously considered the statements of the PWs and also the exhibits of the prosecution, has come to a finding that the prosecution could prove beyond reasonable doubt that the appellant-accused had committed the murder of his father late Haji Abdul Hasen at about 5 a.m. (Saturday 23.6.2001) and accordingly convicted the appellant - accused for the offence under section 302, IPC and sentenced him to undergo the life imprisonment with a fine of Rs. 5,000 in case of failure to pay the fine for another period of one year imprisonment. Hence, the present appeal. 11. 5,000 in case of failure to pay the fine for another period of one year imprisonment. Hence, the present appeal. 11. This court being the first appellate court against the impugned judgment and order and the order of sentence passed by the learned trial court (learned Sessions Judge) is required to consider and re-appreciate the evidence on record. The High Court while considering the appeal, which is an extremely valuable right to the appellants/ accused, against the judgment and order convicting him under section 302, IPC cannot dispose of the appeal without going into the .facts and the question of law involved in the case. The disposal of the appeal on the basis of some general observation without making any effort to go into the evidence on record would amount to denial of the right of appeal to the appellants/accused. [Reference : Narendra Nath Khware v. Parasnath Khware and Ors. (2003) 5 SCC 488 ]. 12. PW-1 Mainul Haque deposed in his examination-in-chief recorded on 1.8.2002 that about one year ago occurrence took place at about 5.00/ 5.30A.M. at a distance of one and half Km. from his house. After getting information about the fact he went there and found that a good number of people gathered there. He saw the dead body of his father with bleeding injury at the neck. On seeing the dead body of his father, he became faint. After he was declared hostile by the prosecution, he was allowed to be examined by the prosecution by putting question in the form of cross examination, and in his cross examination, he stated that his father late Haji Abdul Hasen had a quarreled in the last Romjan month with his elder brother Fazrul Islam and Nazrul Islam (appellant-accused) due to distribution of landed property by his father. Due to such quarrel, his father left to the house of Nurul Islam, his maternal uncle. When he went to purchase a bullock at about 6.30 A.M. of the day of occurrence from Md. Abul of Phula Bhuyagaon, he was informed by this brother-in-law Md. Saha Ali that his father was death. He also stated that he heard from the mouth of the people that tfie appellant-accused killed his father, Haji Abdul Hasen. He also stated that Jurmat Ali (his brother-in-law) took some amount of money about Rs. Abul of Phula Bhuyagaon, he was informed by this brother-in-law Md. Saha Ali that his father was death. He also stated that he heard from the mouth of the people that tfie appellant-accused killed his father, Haji Abdul Hasen. He also stated that Jurmat Ali (his brother-in-law) took some amount of money about Rs. 50,000 from his father for his business but his brother-in-law could not carry on the business. He also did not return the same amount. At the direction of his father one day he went to Jurmat to demand the return of the amount. 13. PW-2 Noor Mahammad deposed that the occurrence took place on 23.6.2001 in between 4.30 A.M. to 6.00/6.30 A.M. at Kurabubori in the pond of one Jalil (PW-4) at about 6.00A.M. After he was declared hostile, the prosecution continued to examine him in the form of cross-examination. He stated before the Police that while he was going by bicycle on the day of occurrence, he over took the appellant-accused and also while going he met Md. Abdul Hasen Meer. He also saw both the appellant-accused and victim talking to each other. He also stated before the Police that he along with Jalil and Barek brought out dead body of the deceased from the said pond. 14. PW-4 (Abdul Jalil) deposed that the occurrence took place at a distance of about 150/200 metres from his house. It was dawn, some body got up from sleep and some body not. He was sleeping at his home. Hiswife got up from sleep and called him. By that time their maid servant Must Forida Begum (PW-5) cried that a man was killed and had thrown to their pond, i.e., the pond of the PW-4 (Abdul Jalil). Immediately, PW-4 went to the road and saw Nur Mahammad Maulana (PW No. 2) on the road. Then he asked him what happened. Then Mahammad Maulana told him to save the victim (deceased). He also stated that he saw a packet of tobacco, one cap and one pair of chappal floating on water of the pond. He also stated that PW-2 Noor Mahammad asked him to go to water of the pond and thereafter both of them got down into water. One Barek also came there. PW-2 Noor Mahammad brought up the dead body of the deceased. He also stated that PW-2 Noor Mahammad asked him to go to water of the pond and thereafter both of them got down into water. One Barek also came there. PW-2 Noor Mahammad brought up the dead body of the deceased. PW-4 Abdul Jalil also stated that while they were taking up the dead body of the deceased from the pond, they saw the appellant-accused at a distance of about 300 metre. He also stated that PW-5 (Forida Begum) told him that two persons quarreling on the road and one fell down into the pond. After they brought the dead body, they learnt that the victim was Haji Abdul Hasen (deceased). He also stated that the victim Haji Abdul Hasen Meer was his "Peha" (uncle through aunt). He also stated that he could not even imagine that the appellant-accussed had killed his father in such manner. He along with Mr. Barek went to the house of the appellant-accused to apprehend him but the appellant-accused was not at home but found him coming from southern side. He then asked the appellant-accused whether he killed his father for landed property. He then replied negative rather admitting his guilt of killing his father for different reasons. 15. The Statements of the PW-1 Mainul Haque, PW-2 Noor Mahammad and PW-4 Abdul Jalil are not contradictory but corroborating to each other about the fact that PW-2 Noor Mahammad saw the appellant-accused and the deceased were going together on the day of occurrence towards Diprang through the Govt. road from Kuranbari and PW-2 and PW- 4 brought out the dead body of the deceased from the pond of the PW-4 and they also saw the appellant-accused at a distance of about 300 metres from the said pond while they were taking out the dead body of the deceased. 01 PW-3 Md. Julmat Ali deposed that the occurrence took place at a distance of 1 km. from his house. At the time of occurrence, he was in bed. A minor boy informed his wife that his father-in-law (deceased) was killed. He also deposed that his father-in-law, the deceased was in his house since a week till the date of occurrence. As his father (deceased) was not at his house, he asked his wife where about of his father-in-law. She told him that her father left the house for house of Mainul. He also deposed that his father-in-law, the deceased was in his house since a week till the date of occurrence. As his father (deceased) was not at his house, he asked his wife where about of his father-in-law. She told him that her father left the house for house of Mainul. Hearing about the occurrence, he went to the place of occurrence and saw the dead body of his father-in-law (deceased). He saw a cut mark on the neck of his father-in-law and at the time of arrival he saw a good number of people there and told him that the appellant-accused killed his father. Almost simultaneously police arrived there. The police prepared an inquest report on which he put his signature. Police also seized one cycle and two pairs Hawai chapel. Ext. 3 is seizure list and Ext. 3(2) his signature. 17. PW-5 Smti. Forida Begum (eye witness) deposed in her statement recorded on 23.9.02 that at about 1 year 2/3 months ago one day early in the morning occurrence took place at the pond to the south of house of PW-4 (Abdul Jalil). She was residing in the house of PW-4 for the last 4/5 years as maid servant. On that morning she got up and came out of her house. She heard a sound of falling something in water of the pond. Then she immediately went to the pond and saw an old man in the water and his son was on the bank. Then, the person who was on the bank asked the old man to come out of water and thereafter he jumped on the old man into the water. She did not know the identify the appellant-accused who jumped on the old man. Later on she came to know that the name of the old man is Haji Abdul Hasen Meer. She also stated that after the appellant-accused jumped on the old man (deceased) into the water, the appellant-accused started to cry to assault the old man. The appellant-accused had drawn the old man under water and left the place hurriedly. She also deposed that, she immediately ran to the house of the PW-4 Abdul Jalil and told him about the occurrence. PW 4 Abdul Jalil an4 PW-2 Noor Mahammad had recovered the dead body of the old man from the pond. The appellant-accused had drawn the old man under water and left the place hurriedly. She also deposed that, she immediately ran to the house of the PW-4 Abdul Jalil and told him about the occurrence. PW 4 Abdul Jalil an4 PW-2 Noor Mahammad had recovered the dead body of the old man from the pond. She also deposed that she saw the neck injury of the old man (deceased). PW-6 Must Bedena Khatoon also corroborated the statement of the PW-2 and PW-4. 18. PW-5 Smti Forida Begum (eye witness) was aged about 12 years on the day of occurrence. As such we have given the anxious consideration as to whether the statement of the child witness was credible and also the child witness was sufficiently intelligent. From the careful appreciation of the statement of the PW-5, we found that the child witness was sufficiently intelligent and credible. The Apex Court in a catena of cases held that if the statement of the child witness is found credible and reliable after careful scrutiny of the evidence, conviction could be made on the basis of the statement of the child witnesses. We may refer to the decision of the Apex Court in Ratan singh Dalsukhbhai Nayak v. State of Gujarat, (2004) 1 SCC 64 . Paras 6 and 7 of the SCC in Ratan singh Dalsukhbhai Nayak (supra) read as follows : "6. Pivotal submission of the appellant is regarding acceptability of PW 11's evidence. The age of the witness during examination was taken to be about 10 years. The Indian Evidence Act, 1872 ('the Evidence Act') does not prescribe any particular age as a determinative factor to treat a witness to be competent one. On the contrary, section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age , disease- whether of mind, or any other cause of the same kind. A child offender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer, J in Wheeler v. United States. A child offender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer, J in Wheeler v. United States. The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. (See Suryanarayana v. State of Karnataka)." 1. In Duttu Ramrao Sakhare v. State of Maharashtra it was held as follows : (SCC p. 343, para 5). "A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored." The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, in shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness." 19. The golden thread which runs throughout the cobweb of criminal jurisprudence as administered in India is that nine guilty may escape but on innocent should not suffer. But at the same time no guilty should escape unpunished once the guilt has been proved to hilt. An unmerited acquittal does not good to the society. If the prosecution has succeeded in making out a convicting case for recording a finding as to the accused being guilty, the court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and give benefit thereof where none exists. A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and not an excuse for a finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on the prowl for easy prey. [Reference : State ofRajasthan v. N.K. the accused (2000) 5 SCO 30]. 20. We have given our conscious application of mind to the statements of the PWs for proper appreciation. After meticulously appreciated the statements of the PWs, we are of the firm view, that the prosecution had proved beyond reasonable doubt that the appellant-accused killed his father Haji Abdul Hasen Meer on 23.6.2001. But the strenuous submission of the learned Amicus Curiae in challenging the impugned judgment is that the offence committed by the appellant-accused cannot be the offence under section 302, IPC but the offence under section 304, Part II, of the IPC, in the peculiar facts and circumstances so far succeeded to be proved by the prosecution. But the strenuous submission of the learned Amicus Curiae in challenging the impugned judgment is that the offence committed by the appellant-accused cannot be the offence under section 302, IPC but the offence under section 304, Part II, of the IPC, in the peculiar facts and circumstances so far succeeded to be proved by the prosecution. The main thrust of argument of the learned amicus curiae is that for committing the offence of murder under section 302, IPC, there should be intention of causing death of the deceased by the appellant-accused and also the prosecutions have to prove the essential requirements mentioned in section 300, IPC beyond reasonable for coming to conclusion that the offence committed by the appellant-accused is an offence under section 302, IPC. 21. We are of the firm view, that the essential requirements mentioned in section 300 of the IPC are completely lacking in the present case and that the offence committed by the appellant-accused is not an offence under section 302, IPC, in as much as, there is no evidence that the appellant-accused had the intention of causing death to the deceased knowing fully well that injury inflicted by the appellant-accused to the deceased was sufficient to cause death. 22. Therefore, we are interfering to the extent of finding by the learned Sessions Judge, Morigaon in the impugned judgment and order that the offence committed by the appellant-accused is an offence under section 302, IPC and we accordingly interfere with. We are of the firm view that the offence committed by the appellant-accused would be the offence under section 304, Part II, IPC. 23. For deciding the quantum of punishment, we also carefully perused the record and also heard the submissions of the learned counsels for the parties and come to the conclusion that justice would serve if the appellant-accused is convicted to a sentence of 10 years Rigorous Imprisonment. Accordingly, the appellant-accused is convicted to a sentence of 10 years rigorous imprisonment. It is made clear that while calculating the period of 10 years, the period already undergone by the appellant-accused in the Jail as an under trial prisoner and convict shall be set off. 24. Before parting with the judgment and order, we would like to put on record the appreciation for the assistance of Mr. R. Adhikary as learned amicus curiae rendered by him in deciding this appeal as indicated above. 24. Before parting with the judgment and order, we would like to put on record the appreciation for the assistance of Mr. R. Adhikary as learned amicus curiae rendered by him in deciding this appeal as indicated above. Accordingly, he is entitled to get his professional fees which is quantified at Rs. 3,000. 25. The appeal stands partly allowed with the modification of sentence as indicated above. 26. Send down the L.C.R. forth with.