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Gauhati High Court · body

2008 DIGILAW 108 (GAU)

Fazar Ali v. State of Assam

2008-02-07

BIPLAB KUMAR SHARMA

body2008
JUDGMENT B.K. Sharma, J. 1. This appeal is directed against the dated 10.08.2006 passed by the learned Additional District & Sessions Judge (FTC No. 4), Kamrup, Guwahati in Sessions Case No. 124(K)/05 convicting the accused Appellants under Sections 436/323/149 IPC. In terms of the said judgment, the accused Appellants numbering 8 (eight), are sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs. 2000/-, in default, further rigorous imprisonment for six months each for offence punishable under Sections 436/149 IPC and also to pay fine of Rs. 500/-, in default, simple imprisonment of one month each for offence punishable under Section 323/149 IPC. Be it stated here that the accused Appellant Nos. 4 and 8, namely, Md. Jahur Ali and Md. Chukur Ali respectively are on bail in terms of the order passed by this Court on 18.12.2006 in Misc. Case No. 486/06. 2. The prosecution story, in brief, is that on 06.01.1996 at about 1.30 p.m. some miscreants came to the house of Md. Nurul Islam Choudhury and set fire in his Pharmacy house and cowshed. The miscreants also assaulted his daughter Ms. Sahnewaz Choudhury and other family members. The Appellant were the named miscreants. It was said Ms. Sahnewaz Choudhury, who lodged the FIR with the Rangia Police Station. 3. On the basis of the above FIR, police registered case and started investigation and on completion of the investigation submitted charge sheet against the accused persons under Sections147/148/149/436/323 IPC. 4. Initially, G.R. Case No. 11/96 was registered in the Court of the Judicial Magistrate 1st Class, Rangia and the offence being exclusively triable by the Court of Sessions, subsequently by order dated 30.03.2005 the case was committed to the court of learned Sessions Judge, Kamrup, Guwahati by the learned Judicial Magistrate First Class, Rangia. Thereafter the case was transferred to the court of learned Additional District & Sessions Judge (FTC No. 4), Kamrup at Guwahati. Eventually, the charges were framed against the accused under Sections 323/486/149 IPC. 5. The prosecution examined as many as nine witnesses including the Investigation Officer. The accused persons were also examined under Section 313 Code of Criminal Procedure. Further they also examined four witnesses in support of their defence of alibi. 6. Eventually, the charges were framed against the accused under Sections 323/486/149 IPC. 5. The prosecution examined as many as nine witnesses including the Investigation Officer. The accused persons were also examined under Section 313 Code of Criminal Procedure. Further they also examined four witnesses in support of their defence of alibi. 6. The learned trial court upon framing of points for determination as to (1) whether on 06.01.1996 at about 1.30 p.m. the accused persons being the members of unlawful assembly, voluntarily caused hurt to Sahnewaz Choudhury by blunt weapon in persecution of their common object and also as to whether the said accused persons being members of unlawful assembly committed mischief by setting the pharmacy into fire and also the cowshed in prosecution of their common object and in appreciation of evidence on record has held that prosecution case is duly established and consequently has imposed the sentence against the accused Appellants about which mention has been made above. 8. I have heard Mr. H.R.A. Choudhury, learned Senior Counsel assisted by Mr. J.Islam and Mr. I. Uddin, learned Counsel representing the accused Appellants. I have also heard Mr. D. Das, learned Public Prosecutor, Assam. 9. Mr. H.R.A. Choudhury, learned Senior Counsel representing the Appellants exclusively referring to the evidence on record, submitted that having regard to the earlier enmity between the parties, false case against the accused Appellants was lodged. According to him prosecution case being highly improbable and there being inherent contradictions in respect of evidence adduced by the prosecution, the accused Appellants are liable to be acquitted. 10. Countering the above argument, Mr. D. Das, learned Public Prosecutor, Assam on the other hand submitted that the trial court having appreciated the evidence on record towards convicting the accused Appellants, the same is not liable to be interfered with. According to him the evidence against the accused Appellants are overwhelming and the learned trial court in appreciation of such evidence has rightly convicted the accused Appellants. 11. I have considered the trial submissions made by learned Counsel for the parties and have gone through the entire evidence on record. The matter will have to be tested in the touchstone of the fact that on the basis of an FIR lodged by the accused Appellant No. 5 against the PW 1 (Md. 11. I have considered the trial submissions made by learned Counsel for the parties and have gone through the entire evidence on record. The matter will have to be tested in the touchstone of the fact that on the basis of an FIR lodged by the accused Appellant No. 5 against the PW 1 (Md. Nurul Islam Choudhury) and his son relating to the incident of murder of one Abed Ali, brother of the accused Appellant No. 5, Rangia RS. Case No. 3/1996 under Sections 143/326/341/302 IPC was registered and the same is now stated to be pending in the Court of learned Ad hoc Additional Sessions Judge No. 1, Kamrup, Guwahati. That apart, the case will also have to be considered taking into account the plea of the accused Appellants that there is no independent eye-witness relating to the alleged incident of burning and that the evidence of PWs 1 to 5 is not trustworthy, all of them being interested witness. Another plea of the accused Appellant is that on the date of the incident they did not visit the place, but were busy in performing the last rites of the deceased Abed Ali. 12. Let us now examine the evidence on record so as to find out whether the aforesaid stand on the part of the accused Appellants find support or not. As per the FIR lodged on 06.01.96 many people came to the house of Md. Nurul Islam Choudhury i.e. the father of the informant (PW 4) and they caused damage to the house (Pharmacy and cowshed). It was also alleged in the FIR that medicine and medical equipments worth rupees fifty thousand, were taken away and also destroyed by the miscreants. In the FIR the informant named the accused Appellants with the statement that she could not recognize others. According to the FIR, there was no male member at that point of time. However, the PW 5, namely, Ms. Sabina Choudhury, younger sister of the informant who had written the FIR, in her deposition, stated that at the time of incident her brother Ziaul Haque was present along with others. 13. PW 4 in her cross-examination stated that she did not see any Fire Brigade engaged in extinguishing the fire. She further stated that the pharmacy was completely gutted. Sabina Choudhury, younger sister of the informant who had written the FIR, in her deposition, stated that at the time of incident her brother Ziaul Haque was present along with others. 13. PW 4 in her cross-examination stated that she did not see any Fire Brigade engaged in extinguishing the fire. She further stated that the pharmacy was completely gutted. On the other hand, the PW 5, her sister who was also present at the time of incident stated that the Fire Brigade came to the spot for extinguishing the fire. She further stated that she did not know about the case registered against her father. She denied the suggestion that the FIR was falsely lodged as a counter blast to the case registered against her father. 14. It will have to be borne in mind that both the PWs 4 and 5 are the daughters of PW 1, against whom the aforesaid case is pending. In fact, PWs 1 to 5 are from the same family and thus interested witnesses. PWs 6 arid 7 are stated to be independent witnesses and PWs 8 and 9 are the police officials. In the testimony of PWs 4 and 5 there is also variation in respect of presence number of miscreants, who allegedly visited the place of occurrence. 15. PW1 is Md. Nurul Islam Choudhury, against whom the aforesaid case is pending, has allegedly murdered said Abed Ali, the brother of accused/Appellants No. 5, 6 and 7. He is not an eye-witness, but was reported about the incident. 16. PW 2 is the sister of the first informant. As against the statement of other witnesses, more particularly PWs 4 and 5, that about 10/15 persons came to the spot, this witness stated that about 100 Nos. of miscreants visited the spot. She in her cross-examination stated that the seized articles had not been produced before the Court. According to her, she could notice the miscreants only after they started to flee from the place. She denied the suggestion that the case was a concocted one as counter blast to the case lodged against her father. 17. PW 4 is the mother of the first informant. According to her, apart from the accused Appellants some other miscreants also with them. She denied the suggestion that the case was a concocted one as counter blast to the case lodged against her father. 17. PW 4 is the mother of the first informant. According to her, apart from the accused Appellants some other miscreants also with them. Contrary to the statement of PWs 4 and 5 that the Fire Brigade had come, she in her cross-examination stated that the villagers extinguished the fire. As against the statement of other witnesses that the house was completely gutted, she stated that the house was in a half-burnt condition. In her cross-examination she also stated that the seized articles had not been produced before the Court. Contrary to the statement that about 100 miscreants took part, she in her cross-examination stated that about 20 miscreants were there. Interestingly, she could not recognize any other person except the accused Appellants. 18. PW 6 is Md. Kader Ali, who in his cross-examination stated that he could not recognize the miscreants. This witness is an independent witness and belongs to the same village. In his chief, he stated that he knew the accused. 19. PW 7 is another independent witness. His statement is of no evidentiary value. He did not state that it is the accused Appellant who were engaged in the offence. 20. PWs 8 and 9 are the police officials. While PW 8 carried out the investigation, the PW 9 submitted the charge-sheet. PW 8 in his cross-examination could not state anything about the injury on the body of the first informant. There is nothing to show that the first informant was given medical treatment. This witness also did not seize even a single article from the half-burnt pharmacy, which he could have easily done. 21. As against the statement of PWs 1, 4 and 5 that the whole pharmacy was burnt, the PW 8 stated that it was only the thatched roof which was burnt. PW 8 also stated that the pharmacy was found in half-burnt position. Although the P W 8 in his examination-in-chief stated about medical report relating to treatment of the injured, but the same was never exhibited. Similarly, the Doctor, who allegedly examined the injured, was also not examined. Further, in his cross-examination, the PW 8 stated that he himself did not send any of the injured persons for treatment. Although the P W 8 in his examination-in-chief stated about medical report relating to treatment of the injured, but the same was never exhibited. Similarly, the Doctor, who allegedly examined the injured, was also not examined. Further, in his cross-examination, the PW 8 stated that he himself did not send any of the injured persons for treatment. According to him the Fire Brigade did not come to the place, which is quite contradictory to the statement of PW 5 who in her cross-examination stated that Fire Brigade had come to the place of occurrence. Most importantly, PW 8 clearly admitted that the brother of the aforesaid accused Appellants namely, Abed Ali, died on the previous day and that on the basis of an FIR lodged by the accused Appellant No. 5 Rangia RS. Case No. 3/96, which eventually culminated to Sessions Case No. 43 (K)/98, was registered. 22. As against the aforesaid statement of PWs, the DWs 1, 2, 3 and 4 have stated in their examination-in-chief that the accused Appellants were engaged in the last rites of the deceased Abed Ali on the date of occurrence from morning to evening. 23. The trial Court after noticing the aforesaid evidence declined to believe the case of the accused Appellants on two fold grounds namely, (1) although the PWs 1 to 5 are relations of one another, their evidence is trustworthy and (2) the DW 4 in his deposition stated that the accused Appellants had left the cremation ground before 5 P.M. Accordingly, a presumption was drawn that the testimony of DWs is not credible. According to the trial Court although PWs 1 to 5 are interested witnesses, being from the same family, but the incident of burning the house of PW 1 being supported by testimony of independent witnesses i.e. PWs 6 & 7, their testimony cannot be brushed aside. 24. There is no quarrel with the proposition that merely because some of the witnesses are interested witnesses, the same by itself cannot render their evidence inadmissible. But in the instant case the same will have to be considered in the background of the fact that on the previous day the brother of the accused Appellants No. 5, 6, and 7 died and an FIR was lodged by accused Appellant No. 5 against PW 1. But in the instant case the same will have to be considered in the background of the fact that on the previous day the brother of the accused Appellants No. 5, 6, and 7 died and an FIR was lodged by accused Appellant No. 5 against PW 1. It need not be reiterated that the evidence of an interested witness cannot be discarded merely on the ground that he is either partisan or interested or closely related to the informant. At the same time, such testimony requires scrutiny with more care and caution, so that neither the guilty escape nor the innocent is wrongly convicted. 25. In the instant case, upon scrutiny of evidence on record, which has been discussed above, there is inherent contradictions and there is likelihood or motive to falsely implicate the accused Appellants. Upon a critical scrutiny of the evidence on record, what is found is that there is inherent contradiction in the testimony of PWs of which PWs 2 to 5 being from the same family of PW 1 are interested witnesses. 26. While some of the witnesses stated about presence of 15/20 miscreants, PW 2 stated that about 100 miscreants. There is also inherent contradiction regarding presence of Fire Brigade to extinguish the fire. On the other hand, DWs in their statement unequivocally stated that the accused Appellants were engaged in the last rites of deceased Abed Ali during the whole day. However, the learned trial Court on the basis of the statement of DW 4 that the Appellants went away before 5 p.m. in the evening to invite more people, recorded the finding that the story that the accused Appellants were not present at the spot was not believable. It will have to be borne in mind that the incident occurred at about 1.30 p.m. The fact that accused Appellants left the cremation ground just before 5 p.m. to invite more people by itself cannot lead to the proof of the accused Appellants being present at the place of occurrence. 27. From the materials on record, I am of the considered opinion that it is not a case of establishing the case beyond all reasonable doubt against the accused Appellants. 27. From the materials on record, I am of the considered opinion that it is not a case of establishing the case beyond all reasonable doubt against the accused Appellants. As stated above, it is a case of enmity between two parties in view of the fact that brother of the accused Appellants No. 5, 6 and 7 died on the previous day for which the accused Appellant No. 5 had lodged an FIR implicating the PW 1. In this context, Mr. Choudhury, appearing for the accused Appellants has submitted that the PWs 1 to 5 being all partisan and interested witness, their testimony relating to the incident is not trustworthy. When the oral testimony of PWs 1 to 5 is tested along with the testimony of PWs 6 and 7, who are independent witnesses, I do not find any corroboration towards implicating the accused Appellants. These two independent witnesses have never implicated the accused Appellants in respect of the incident. As noticed above, the PW 6 although claimed to have identified the accused Appellants, but stated that he did not recognize the miscreants. From the materials on record, there is no ingredient of establishing any offence under Section 323 IPC. That apart, there is also no clinching evidence so as to establish offence under Sections 436 and 149 IPC against the accused Appellants beyond reasonable doubt. Having regard to the place of occurrence of the incident, it was quite possible for the prosecution to examine other Independent witnesses, which it did not do. 28. In view of the above, I am of the considered opinion that the accused Appellants are entitled to the benefit of doubt. Consequently, the appeal is allowed and the accused Appellants are discharged from the offence. They shall be set at liberty forthwith, if not wanted in connection with any other case. As stated earlier, the accused Appellant Nos. 4 and 8 are already on bail. Accordingly, their bail bonds are also discharged. 29. The appeal stands allowed. Consequently, the impugned judgment of conviction and sentence dated 10.08.2006 passed by the learned Additional District & Sessions Judge (FTC No. 4), Kamrup, Guwahati in Sessions Case No. 124(K)/05 is set aside and quashed. 30. Registry shall send down the records forthwith along with a copy of this judgment.