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2009 DIGILAW 105 (GAU)

State of Assam v. Muhammad Abdul Jalil

2009-02-12

ANIMA HAZARIKA, RANJAN GOGOI

body2009
JUDGMENT Ranjan Gogoi, J. 1. The appeal is directed against the judgment and order dated 8.8.2002 passed by the learned Sessions Judge, Morigaon, in Sessions Case No. 30 of 1999. By the aforesaid order the learned Sessions Judge has acquitted the Respondents in the appeal of the charge under Section 302, IPC. Aggrieved by the said acquittal the State is in appeal before this Court. 2. The case of the prosecution in short is that a FIR was lodged in the Moirabari Police Station under Morigaon District by one Md. Nazrul Islam (PW 3) stating that at about 7.00 A.M. of 17.3.97 while the father of the informant, one Keramat Ali Maral, was having tea in the tea stall of Sri Dilip Modak at Moirabari Bazar, at that time accused Nos. 1 to 6 named in the FIR entered the tea stall. Thereafter, the accused Nos. 2 and 3 fired at Keramat Ali with a pistol while the other accused injured the aforesaid Keramat Ali by stabbing and hacking him with daggers and sword etc. In the FIR filed it is further stated that on account of the assault committed and the injuries sustained Keramat Ali died on the spot. It is further stated that the first informant along with five witnesses named in the FIR were present at the spot and when they had tried to offer resistance they were threatened with pistols as a consequence of which they had to flee away from the place of occurrence. In the FIR filed it was specifically alleged that the incident took place at the instigation of accused Nos. 7, 8 and 9. 3. On the basis of the FIR filed Moirabari P.S. Case No. 21 of 1997 was registered and investigated. On completion of investigation the accused persons were charge-sheeted under Sections 147/148/149/302/210/448, IPC. The offences alleged being exclusively triable by the Court of Sessions the case was committed for trial to the Court of the learned Sessions Judge at Morigaon. In the Court of Sessions charge was framed against all the accused under Sections 147/148/149/302/109, IPC to which they pleaded not guilty. In the course of the trial accused Adbul Hai died whereas the accused Rahul Amin was declared absconder. 4. In support of its case the prosecution examined as many as 9 witnesses whereas the defence examined one witness. In the Court of Sessions charge was framed against all the accused under Sections 147/148/149/302/109, IPC to which they pleaded not guilty. In the course of the trial accused Adbul Hai died whereas the accused Rahul Amin was declared absconder. 4. In support of its case the prosecution examined as many as 9 witnesses whereas the defence examined one witness. At the conclusion of the trial the learned Sessions Judge by order dated 8.8.2002 convicted the accused Mofizuddin Islam and Abdul Rahim Faruqi under Section 302, IPC and sentenced them to undergo rigorous imprisonment for life and to pay a fine of Rs. 1000/- each in default R.I. for another six months. The remaining five accused i.e. (1) Abdul Jalil, (2) Abdul Rashid, (3) Giasuddin Muktar, (4) Samsul Haque and (5) Imdadul Islam were acquitted by the learned Sessions Judge on benefit of doubt. Accused Rahul Amin was declared an absconder. It is the correctness of the said view that has to be determined by us in the present appeal. 5. Before proceeding any further it will be necessary for the Court to notice the core of the evidence adduced in support of the prosecution case as well as the evidence adduced by the sole defence witness. 6. PW 1, Taher Ali, in his deposition had stated that on the day of occurrence at about 6/6.30 A.M. he had gone to Moirabari Bazar where he met Siraj Ali (DW 1) near Kalia Hotel. According to this witness, both of them had entered into the hotel for taking tea. On entering the hotel they found deceased Keramat Ali sitting inside the hotel. PW 1 had deposed that while they were sipping tea they found deceased Keramat rising to his feet by saying hosiar. Accused Abdul Hai (since deceased) came running towards Keramat with a dagger in his hand. When this witness tried to stop Abdul Hai, accused Rahul Amin threatened him by showing a pistol. According to this witness, he thereafter ran away from the hotel out of fear and on coming back along with others he found Keramat Ali lying with bleeding injuries on different parts of his body. This witness had categorically stated that he saw stab injuries on the legs, face and chest of the deceased Keramat Ali. From the cross-examination of PW 1 it has come out that the son of the deceased, i.e. Md. This witness had categorically stated that he saw stab injuries on the legs, face and chest of the deceased Keramat Ali. From the cross-examination of PW 1 it has come out that the son of the deceased, i.e. Md. Nazrul Islam (PW 3) was present at that time in the hotel along with other members of Keramat's family besides some other persons. 7. PW 2, Imran Hussain, is a seizure witness. 8. PW 3, Nazrul Islam is the son of the deceased. According to him, at about 7.00 A.M. on the date of occurrence he was present in front of Kalia Hotel at Moirabari Bazaar. At about that time his father, deceased Keramat entered the hotel for taking tea. PW 3 had deposed that at that time his uncle Sorhab Ali (PW 4) was also in front of the hotel. After about 10 minutes Mozammil Hussain (PW 6) came to the place. At that time all the accused came to the hotel. PW 3 had deposed that the accused Giasuddin, Jalil Master (Adbul Jalil) and Samsul Haque had ordered the others to catch hold of the deceased whereupon the accused Abdul Hai, Abdul Rashid, Rahul Amin, Mufiz Uddin and Abdul Rahim Faruqi went inside the hotel. Thereafter accused Adbul Rashid shot at Keramat with a pistol whereas accused Abdul Hai hit him in the chest with a sword. PW 3 had further deposed that Rahul Amin, Mufizuddin and Abdul Rahim Faruqi had struck the deceased with daggers and that he alongwith others had run away when accused Imdadul came charging at them. PW 3 had further deposed that after about half an hour when he came back along with others he found his father dead. Thereafter he lodged the ejahar. In cross-examination this witness had admitted that he was an accused in the case involving the murder of accused Abdul Hai and that his father Keramat had undergone life imprisonment in another murder case. This witness had admitted that PW 4 Sorhab Ali and PW 6 Mujammil Hussain were his relatives. In cross-examination he had further stated that his father had been shot with a pistol but that he did not know whether the pistol shot had hit him or not. 9. PW 4 Sorhab Ali in his deposition had stated that on the day of occurrence at about 6.30 or 7.00 A.M. he was in front of Kalia hotel. In cross-examination he had further stated that his father had been shot with a pistol but that he did not know whether the pistol shot had hit him or not. 9. PW 4 Sorhab Ali in his deposition had stated that on the day of occurrence at about 6.30 or 7.00 A.M. he was in front of Kalia hotel. After a little while deceased Keramat and Nazrul Islam (PW 3) had arrived there. This witness had deposed that Keramat was inside the hotel while Nazrul had come near him. Shortly thereafter Muzammil (PW 6) also came. Thereafter all the accused persons had come to the hotel. While the accused Gias Uddin, Jalil Master (Adbul Jalil) and Samsul Master (Samsul Haque) had asked the others to get hold of deceased Keramat, the other accused went inside the hotel. PW 4 had categorically deposed that accused Abdul Rashid had shot at Keramat Ali with a pistol whereas accused Abdul Hai (since deceased) had hit him with a sword. This witness had further deposed that the accused Rahul Amin, Imdadul, Mufijuddin and Abdul Rahim Faruqi had assaulted the deceased with daggers. PW 4 had further deposed that when they were about to go to the aid of the deceased, Keramat, Jalil Master (Abdul Jalil), Samsul Master (Samsul Haque) and Gias Uddin had asked the other accused to catch hold of them also. At this accused Imdadul came charging towards them. Consequently, they ran away. Subsequently, along with others this witness came to the place of occurrence and found Keramat dead. 10. PW 5, Dr. Mobidur Rahman, who held the post mortem examination had found the following injuries on the deceased: 1. Sharp cutting injury starting from angle of the mouth to the level of the middle of the neck of 5" length. The depth is whole thickness of the cheek. Blood clot present on the wound. 2. Sharp cutting injury at the level of the 2nd rib (left side) at the nipple line 1 1/2" length and skin thickness which directed laterally. Clotted blood with serosenguious present. 3. Sharp cutting injury on the left side at the nipple level starting from the left nipple to the right side 3" in length and 5" depth which penetrated the pleurae, pericardium and heart injuring 4th and 5th ribs. 4. Clotted blood with serosenguious present. 3. Sharp cutting injury on the left side at the nipple level starting from the left nipple to the right side 3" in length and 5" depth which penetrated the pleurae, pericardium and heart injuring 4th and 5th ribs. 4. Sharp cutting wound at the level of right lower rib which penetrated the pleural cavity and the liver. 5. Sharp cutting injury at the right leg which cut the skin and the tibia at the mid level size 3" x 2". There was clotted blood present. 6. Oblique sharp cutting injury at the right gluteal region which is 8" in length and 3" depth. There was blood clot at the injury. The direction of the wound was lateral to the medial side. 7. There was scattered sharp cutting injury on the chest wall, abdominal wall, right palm and right index finger. The injuries are antemortem in nature. The death, in the opinion of the Doctor, PW 5, was due to the haemorrhage and shock as a result of multiple injuries caused by sharp pointed object on his person. In cross-examination PW 5 had deposed that "none of the injuries is gun shot injury. Injury No. 6 may be caused by heavy knife. All the injuries will lead to profuse bleeding." 11. PW 6, Mujammil Hussain in his deposition had stated that at about 6.30 A.M. on the day of occurrence he had gone to Moirabari Bazaar and in the bazaar when he was taking tea with Nazrul Islam (PW 3) and Sorhab Ali (PW 4) in Dilip Maktar's tea stall all the accused had come to the tea stall from the eastern side. The accused Gias Uddin, Abdul Jalil and Samsul Haque had asked the other accused to kill Keramat. At this the other accused persons went inside the hotel. PW 6 had deposed that he heard the sound of gun shot inside the hotel and had seen a pistol in the hands of Abdul Rashid. The other accused were armed with daggers and swords. This witness had further deposed that when they were about to enter the hotel accused Imdadul threatened them with a pistol. Consequently, they ran away and after about half an hour when they came to the spot they found the dead body of Keramat lying in the hotel. 12. The other accused were armed with daggers and swords. This witness had further deposed that when they were about to enter the hotel accused Imdadul threatened them with a pistol. Consequently, they ran away and after about half an hour when they came to the spot they found the dead body of Keramat lying in the hotel. 12. PW 7, Somnath Bora, Sub-Inspector of Police, had conducted the main part of the investigation of the case. In his deposition PW 7 had stated that at the place of occurrence he had found Muzammil Hussain (PW 6), Nazrul Islam (PW 3) and Sorhab Ali (PW 4) and further that they had arrived at the spot after the inquest of the dead body was over. In his deposition PW 7 had also stated that PW 3 Nazrul Islam had not stated before him about the details of the assault committed by each of the accused though he had stated that all of them had participated in the assault on the deceased, Keramat. Similarly, PW 7 had testified with regard to the absence of any statement of PW 4 Sorhab Ali and PW 6 Mujammil Hussain with regard to the specific details of the assault committed by each of the accused on the deceased. 13. PW 8, Robindra Nath Bezbaruah, is the Officer-in-charge of Moirabari Police Station, who had carried out a part of the investigation. 14. PW 9, Sri Thaneswar Sharma, is an Inspector of the CID who had also investigated the case and had examined the same persons who were earlier examined by PW 7, Somnath Bora. This witness in cross-examination had admitted that the statement of the persons examined by PWs 7 and 8 in course of the investigation undertaken by them were, once again, recorded by him and no further witness was examined. 15. DW 1, Siraj Ali, who has been named in the FIR as one of the eye-witnesses had stated in his deposition that on the date of occurrence at about 7.00 A.M. he was having tea in the Kalia Hotel along with Taher Ali (PW 1). According to this witness, deceased Keramat was also having tea at that time. DW 1 had deposed that accused Abdul Hai (since deceased) and two other unknown persons came to the hotel and Abdul Hai had dealt several blows in the abdomen of deceased Keramat with a sword. According to this witness, deceased Keramat was also having tea at that time. DW 1 had deposed that accused Abdul Hai (since deceased) and two other unknown persons came to the hotel and Abdul Hai had dealt several blows in the abdomen of deceased Keramat with a sword. In his deposition he had stated that out of fear he came out from the hotel and at that time he did not see any other accused persons; neither did he see any of the member of the deceased Keramat's family. This witness had deposed with regard to rivalry over property between the deceased Keramat and the accused Abdul Jalil and Mufizuddin. In cross-examination this witness had categorically stated that at the time of the incident there were four other customers in the hotel and that he did not hear any gun shot. 16. The learned Sessions Judge after a threadbare consideration of the evidence adduced by the parties, the core of which has been noticed above, came to the conclusion that the said evidence conclusively pointed to the guilt of accused Abdul Hai who, however, had died during the pendency of the trial. Insofar as the other accused are concerned, the learned trial Judge was of the view that the evidence tendered by PW 3 should be accepted only after a close scrutiny as he is the son of the deceased and also an accused in the case involving the killing of accused Abdul Hai. For the same reason i.e. relationship with the deceased as also the fact that his son was an accused in the same case, the learned trial Court did not readily accept the evidence tendered by PW 4, Sorhab Ali. Similarly, the learned Sessions Judge recorded the finding that PW 6, Mujammil Hussain, being related to the deceased, his evidence should be carefully scrutinized. Such scrutiny, according to the learned Sessions Judge, revealed that PW 6 had not stated before the police that the accused Giasuddin, Samsul Haque and Abdul Jalil had instigated the other accused. Further, PW 6 had stated that all the accused were armed statement was not supported by the evidence of PW 3 and 4. That apart, the learned Sessions Judge also took note of the fact that the evidence of PW 5, Dr. Further, PW 6 had stated that all the accused were armed statement was not supported by the evidence of PW 3 and 4. That apart, the learned Sessions Judge also took note of the fact that the evidence of PW 5, Dr. Mubidur Rahman, though had revealed that a number of injuries caused by sharp pointed weapon was found on the body of the deceased. PW 5 had clearly stated that there was no gun shot injury on the deceased. The fact that all the eye-witnesses had reported the use of a gun shot and the said firearm was not seized in the course of the investigation were considered to be other relevant circumstances which should be relied upon in determining the culpability of the accused. On the aforesaid basis the learned Sessions Judge had thought it proper to hold that apart from accused Abdul Hai who was dead, the prosecution had succeeded in proving the involvement of accused Mofizuddin Islam and Abdul Rahim Faruqi in the crime. Accordingly, the aforesaid two persons were convicted whereas the remaining five accused, namely, (1) Abdul Jalil, (2) Abdul Rashid, (3) Giasuddin Muktar, (4) Samsul Haque and (5) Imdadul Islam i.e. the Respondents in the appeal were acquitted on the benefit of doubt. The other remaining accused i.e. Respondent Rahul Amin was already declared an absconder. 17. The acceptability of the evidence tendered by PWs 3, 4 and 6 who are related to the deceased is the first issue that will require consideration of the Court. There is no law that the evidence of a relative of a deceased person cannot be acted upon by the Court in determining the culpability of the accused. However, as a matter of prudence evidence of such witness are scrutinized by the Courts with extra care and caution to exclude interested and tainted evidence from being relied upon. The availability of disinterested witnesses and non-examination of such disinterested witness by the prosecution without there being any explanation, is one circumstance against relying on the evidence tendered by relatives of the deceased. The availability of disinterested witnesses and non-examination of such disinterested witness by the prosecution without there being any explanation, is one circumstance against relying on the evidence tendered by relatives of the deceased. The inherent credibility or intrinsic worth of the evidence tendered by the relatives of the deceased; the consistency of the statement made by them if there are more than one such witness and the inherent contradictions, if any, between the evidence tendered by such witnesses are other aspects that must receive the Courts consideration before the Court proceeds to rely on the evidence of such witnesses. 18. In the present case though the evidence of PW 3 as well as DW 1 is capable of suggesting that other persons, not related to the family of the deceased, were at the place of occurrence and the prosecution had offered no explanation for not examining such witnesses, the said lacuna in the prosecution case, by itself, cannot be understood to be fatal. The other tests laid down above, which are by no means exhaustive, will have to be applied and the cumulative result of all such tests will have to be considered by the Court before any decision to act or not to act on the evidence tendered by the PWs 3, 4 and 6 is finally arrived at by the Court. 19. In the FIR filed by PW 3 on the very day of the occurrence the involvement of all the accused have been clearly stated. The said version unfolded by the witnesses in the trial therefore found manifestation in the earliest version of the case. The cross-examination of PW 1 clearly reveals that the son of the deceased Nazrul Islam (PW 3) and other members of the deceased's family were present at the place of occurrence when the incident took place. In this regard it would be significant to note that PW 1 had not fully supported the prosecution version. The presence of PWs 3, 4, and 6 at the place of occurrence when the incident took place, therefore, can be accepted. In this regard it would be significant to note that PW 1 had not fully supported the prosecution version. The presence of PWs 3, 4, and 6 at the place of occurrence when the incident took place, therefore, can be accepted. The evidence of PW 7 (I.O.) that PWs 3, 4 and 6 had come to the place of occurrence after the inquest over the dead body was completed is capable of being understood on the basis of the evidence of the said witnesses who had clearly deposed that on being threatened by some of the accused they had left the place of occurrence only to return later along with other persons. A reading of the evidence of PWs 3, 4 and 6 reveals a fair amount of consistency and uniformity showing the involvement of all the accused including the present Respondents. The instigation by the accused Giasuddin, Samsul Haque and Abdul Jalil; the firing by accused Abdul Rashid; the assault by the accused Rahul Amin, Imdadul, Mufijuddin and Abdul Rahim Faruqi, the threat given to PWs 3, 4 and 6 by accused Imdadul stands fully established. The absence of any gun shot injury on the body of the deceased is capable of being understood by the evidence of PW 3 who clearly stated that though a gun was fired at the deceased he did not know whether shot had hit the deceased or not. In the above circumstances, the Court is of the view that it would be a travesty of justice to reject the evidence of as many as three eye-witnesses merely on the ground that the said witnesses were related to the deceased. The evidence of the aforesaid three eye-witnesses indicate the clear involvement of the present Respondents in the incident leading to the death of Keramat Ali though on the evidence on record the precise role of any of the accused-Respondents in inflicting the fatal injury/injuries is not very clear. The question, therefore, is whether the accused-Respondents can still be held liable for commission of the offence under Section 302, IPC. 20. The question, therefore, is whether the accused-Respondents can still be held liable for commission of the offence under Section 302, IPC. 20. If the evidence adduced by the prosecution witnesses that all the accused had come to the place of occurrence in one group and three of them i.e. Giasuddin, Samsul Haque and Abdul Jalil had asked the other accused to catch hold of the deceased Keramat whereafter the other accused had entered the hotel and an assault took place leading to the death of Keramat, which evidence the Court is inclined to believe, there can be hardly any manner of doubt that the common intention of the accused to cause the death of Keramat stands established. However, in the charge framed against the accused they were not charged for commission of the offence under Section 302 read with Section 34 of the IPC. 21. In State of Orissa vs. Arjun Das Agarwal and another reported in AIR 1999 SC 3229 , it has been held by the Apex Court that:- Section 34 does not create a distinct offence and it is the participation of the accused that the intention of committing crime is established and Section 34 IPC is attracted. To rope in a person with the aid of Section 34 IPC, prosecution has to prove that the criminal act was done by actual participation of more than one person and that the said act was done in furtherance of common intention of all engaged at a prior concert. 22. We are conscious of the fact that in the present case the Court has been called upon to decide the culpability of 5 (five) of the accused Respondents for the death of one single person, in addition to the two other accused who have already been found to be guilty. However, on due consideration of the evidence and materials on record we are left with no option but to take the view that the judgment and order of acquittal of the accused/Respondents passed by the learned Sessions Judge suffers from fundamental errors which would need correction at the hands of this Court. We, therefore, reverse the judgment under appeal insofar as the accused/Respondents are concerned and convict each of the accused/Respondents for commission of the offence under Section 302 read with Section 34, IPC. We, therefore, reverse the judgment under appeal insofar as the accused/Respondents are concerned and convict each of the accused/Respondents for commission of the offence under Section 302 read with Section 34, IPC. Each of the accused-Respondents is sentenced to undergo R.I. for life and to pay a fine of Rs. 2,000/- each, in default, to suffer R.I. for six months more. The accused/Respondents (1) Abdul Jalil, (2) Abdul Rashid, (3) Giasuddin Muktar, (4) Samsul Haque and (5) Imdadul Islam be taken into custody forthwith. 23. In the result the appeal is allowed. Office to transmit the L.C.R. forthwith. Appeal allowed.