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2008 DIGILAW 789 (GAU)

Sarif Uddin v. State of Assam

2008-11-12

AFTAB H.SAIKIA, ANIMA HAZARIKA

body2008
JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. C. Goswami and Smt. M. Ahmed, Learned Counsel for the appellant. Also heard Mr. Z. Kamar, learned P.P. Assam. 2. This criminal appeal is directed against the judgment and order dated 20.5.2002 rendered by the learned ad hoc Additional Sessions Judge, Nagaon in Sessions Case No. 163(N)/96 whereby the appellant was convicted under Section 302, IPC and sentenced to suffer rigorous imprisonment for life ('R.I.') and also to pay a fine of Rs. 1,000, in default, to undergo further R.I. for another 1(one) month. 3. The prosecution case in brief is that on 23.11.1991 at around 3 p.m. in the afternoon one Mustt Suletna Khatun called Allauddin ('the deceased') from outside his house. As soon as the deceased came out of his house, one Ashabuddin inflicted a "Khukri" blow on the back of his neck. On being sustained such 'Khukri' blow, the deceased ran from his house towards north and entered into the house of one Ali Hussain and took shelter therein. However, the accused Ashabuddin along with other persons namely, Sarifuddin, the appellant, Jagir Hussain, Mofizuddin and Faizuddin chased the deceased to the house of Ali Hussain and killed the deceased causing injuries on his head, cheast, neck/belly, stomach and legs with "khukri", "Dagger" and 'Kathiar'. To this effect, an Ejahar was lodged by Md. Taher Ali, PW1 with Dhing Police Station on the very date, i.e., on 23.11.1991. 4. On the basis of the above FIR, the police started investigation and on completion of the investigation, submitted charge sheet against all the above mentioned persons including the appellant. However, the appellant herein along with some other accused were declared absconders. 5. The learned ad hoc Additional Sessions Judge, ('Sessions Judge') Nagaon framed charges under Section 147/302, IPC read with Section 149, IPC against the other accused persons namely, Ahmed Ali, Akkas Ali. Abdul Rahman, Abbas Ali, Siddique Ali Munchi, Raj Mamud and Faizuddin. 6. On completion of the said initial trial wherein 4 witnesses, namely, Mustt. Kod Banu Mustt. Roshida Khatun/Newaj Ali, Mustt. Abdul Subhan Laskar were examined by the prosecution as PW1, PW2, PW3 and PW4 respectively, the learned Sessions Judge, acquitted all the accused persons above named from the charges under Section 302 read with Section 147/149, IPC. 7. 6. On completion of the said initial trial wherein 4 witnesses, namely, Mustt. Kod Banu Mustt. Roshida Khatun/Newaj Ali, Mustt. Abdul Subhan Laskar were examined by the prosecution as PW1, PW2, PW3 and PW4 respectively, the learned Sessions Judge, acquitted all the accused persons above named from the charges under Section 302 read with Section 147/149, IPC. 7. The appellant who was earlier declared as absconder was subsequently apprehended by police and he was sent for trial before the learned Sessions Judge who after hearing the appellant as well as the learned P.P., Assam, framed the charges under Section 302/147/ 149, IPC against the appellant to which he pleaded not guilty and claimed to stand trial. 8. During the course of trial, the prosecution examined as many as 8 witnesses. The appellant was examined under Section 313, Cr.PC. 9. Having considered the deposition of all those eight witnesses and upon hearing the Learned Counsel for the parties, the learned Sessions Judge found the appellant guilty of the offence of killing the deceased and convicted and sentenced the appellant as already indicated above. 10. Challenging the impugned conviction and sentence, Mr. Goswami and Smt. Ahmed, have jointly argued that the impugned conviction and sentence of the appellant cannot be sustained on the basis of present set of evidence. According to them, the evidence of the witnesses more particularly, the testimony of PW2 Mustt. Kod Banu who was projected as sole eye witness appears to be unreliable and unbelievable. The so-called ocular evidence of PW2 totally failed to prove the prosecution case. The attention of this Court has been drawn to the deposition of PW2 word by word. 11. Having gone through the deposition of PW2 Mustt. Kod Banu who was the wife of the deceased, it is seen that, on the day of occurrence at around 3 p.m. her husband and she both were at home, She knew the appellant. The accused was her co-villager. According to her, as deposed, as soon as her husband stepped out in order to go to the Dhing bazaar, the appellant, Sarifuddin along with Ashabuddin, Nizamuddin, Mofizuddin, Sahabuddin, Ashabuddin came and Sarifuddin struck him first. They were armed with dao, spear, etc., and after assaulting her husband they went away. They assaulted her husband by felling him at her younger brother Ali Hussain's garden. They were armed with dao, spear, etc., and after assaulting her husband they went away. They assaulted her husband by felling him at her younger brother Ali Hussain's garden. For the reason best known to the prosecution, Ali Hussain was not examined. 12. PW2 further deposed that she witnessed the occurrence going behind her husband. The accused persons chased her husband on, got him inside Ali Hussain's garden and assaulted him there. They took away her husband a little away and left him there. Going there, she found her husband dead. Then she raised hue and cry whereupon people turned up. When Taher Ali asked her about the occurrence she narrated the same to him. 13. From the close assessment of this witness, projected by the prosecution as eye witness, it would demonstrate that according to her, Sarifuddin struck first but there was no whisper in the evidence what weapon was used by the appellant in striking her husband because, according to her clear evidence, all the accused persons, five in number, being armed with dao, spear, etc., assaulted her husband at a time. 14. At this juncture, it would be appropriate and apt to examine the medical evidence of PW7, Dr. Bijoy Kumar Chamuah, as regard the injuries inflicted upon the dead body of the deceased. 15. According to the medical evidence, the following injuries were found on the dead body of the deceased: Wounds: (1) Sharp cut injury over forehead including frontal and parietal bone, deep to brain with the size of 5" in length and 2" in breadth. (2) Sharp cut injury on right cheek bony deep length 4" and 1" in breadth. (3) Sharp oblique cut injury on right side of neck bony deep with the length 6" breadth 2". (4) Sharp oblique cut injury on right side of the back towards upper part. Bony deep 4" in length 2" in breadth. (5) Sharp cut injury on right hypocomitrac region 1" in length and 1/2" in breadth. (6) Sharp cut injury, on epigastric region 1" in length and 1/2" in breadth. 16. The Doctor, in his opinion stated that the cause of death was due to shock and haemorrhage as a result of injuries sustained by the deceased. 17. (5) Sharp cut injury on right hypocomitrac region 1" in length and 1/2" in breadth. (6) Sharp cut injury, on epigastric region 1" in length and 1/2" in breadth. 16. The Doctor, in his opinion stated that the cause of death was due to shock and haemorrhage as a result of injuries sustained by the deceased. 17. Keeping in view the injuries already quoted hereinabove as well as the deposition of PW2 that the accused first struck the deceased, it can be easily said that all those six injuries so suffered by the deceased were the result of the joint attack by all those accused persons named hereinabove. But in the instant case, all the other accused except the appellant who during the trial found to be absconder, were acquitted by the learned Sessions Judge from the charges of Section 302/147/149, IPC. 18. That being so, we have basic doubt as regard the actual participation of the accused/appellant in the incident and that too what weapon was used by the appellant in inflicting the deceased. It is seen that all the injuries were of sharp cut injuries. Even PW2 who was produced by the prosecution as eye witness, failed to say specifically as to what weapon was possessed by the appellant. It casts doubt pertaining to the veracity and genuineness of this eye witness so as to rope in the appellant into the charges so levelled against him. 19. We have also thoroughly analyzed and evaluated the testimony of other witnesses, namely, PW3, PW4 and PW5 and PW6 out of whom PW3, PW6 were declared hostile. 20. Having gone through the entire evidence of these witnesses, we do got find any such clinching materials to inspire confidence to substantiate the charges as levelled against the appellant. 21. Given the facts and circumstances of this case in its totality and also upon hearing the Learned Counsel for the parties, we are of the considered view that the appellant is entitled to get the benefit of doubt and the impugned conviction and sentence deserves to be interfered with. The same stands quashed and set aside accordingly. 22. The appellant is set at liberty forthwith unless his detention is necessary in any other case. 23. Send down the LCR forthwith. 24. The appeal succeeds and stands allowed. Appeal allowed.