Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 728 (GAU)

State of Assam v. Md. Azad Ali

2009-10-20

H.N.SARMA

body2009
JUDGMENT H.N. Sarma, J. 1. Being unable to accept the verdict of acquittal passed by the learned Sessions Judge, Morigaon acquitting the accused/respondents from the charges under Sections 147/447/448/323/325/436, IPC in Sessions case No. 16 of 2000 vide judgment and order dated 31-8-2001, the State of Assam preferred this appeal. 2. Heard Mr. K. Munir, learned Addl. PP, Assam for the State of Assam and Mr. HRA Choudhury, learned Sr. counsel assisted by Mr. I. Uddin, learned advocate for the accused/respondents. 3. The prosecution case was initiated on the basis of an FIR dated 21-2-1996 lodged by one Must. Pariban Nessa with the O/C, Morigaon Police Station who was examined in the case as P.W. 1 alleging inter alia that on 20-2-1996 at about 8.00 p.m. while her son Md. Mazibur Rahman was returning home an altercation took place with the accused persons who were engaged in erecting a gate for the Idd festival and after his returning home the accused persons namely Azad Ali, Tazimuddin Suleman Ali, Firoz Ali, Irfan Ali, Nurul Haque, Md. Pipili, Abu Hussain Babuli, Dilwar Hussain and Danti armed with dao, lathi etc. trespassed into their compound and assaulted her husband Md. Habibur Rahman. Accused also assaulted Md. Makinur Rahman, Miss Lilima Begum and Musstt. Pariban Nessa, informant with the blunt edge of dao causing grievous injuries on their person. The injured persons were brought to the Civil Hospital for treatment. The accused persons also set on fire the dwelling house of the informant causing damage to the extent of Rs. 25,000/-. On receipt of the FIR said Morigaon PS Case No. 26/96 was registered and the process of investigation was undertaken by the investigating agency. During the course of investigation, the statement of the witnesses were recorded, injury report of the victim was collected, articles seized, accused were arrested and upon completion of the investigation having found a prima facie case, charge-sheet under Sections 147/447/323/325/436, IPC was submitted against the accused. The case being triable by the Court of Sessions Judge was committed for necessary trial to the Court of learned Sessions Judge, Morigaon wherein it was registered as Sessions Case No. 16/2000. On the basis of the documents and materials submitted under Section 173, Cr. The case being triable by the Court of Sessions Judge was committed for necessary trial to the Court of learned Sessions Judge, Morigaon wherein it was registered as Sessions Case No. 16/2000. On the basis of the documents and materials submitted under Section 173, Cr. P.C. and upon hearing the prosecution and defence charges under the aforesaid Section of law were framed against the accused persons and on being explained, they denied the charges and claimed to be tried. 4. During the course of trial, the prosecution examined as many as eight witnesses including the Doctor and I.O., whereas the defence examined none. At the end of the trial, the learned Addl. Sessions Judge vide impugned judgment and order acquitted the accused persons holding them not to be guilty of the offence under which they were charged. Mr. Munir, learned PP has submitted that in spite of the prosecution having been able to prove the case against at least some of the accused persons, the learned Sessions Judge, after mis-appreciating and misconstruing both the oral as well as documentary evidence in most mechanical manner acquitted the accused persons on flimsy ground which cannot be supported by law. Learned PP further submits that careful appreciation of the evidence of the witnesses of the P.Ws. more particularly P.Ws. 1, 2 and 3, it cannot be held that the charges against the accused persons/respondents are clearly proved and hence, they are liable to be convicted setting aside the impugned judgment passed by the learned trial Judge. Mr. HRA Choudhury, learned Sr. counsel supporting the impugned judgment on the other hand submits that the appellate Court should be slow in decision in such a case of acquittal more particularly when, as the occurrence took place way back in the year 1996. Learned Sr. counsel further submits that there are lots of contradiction on the statement of the P.Ws. and the prosecution could not prove the case against any of the accused persons beyond all reasonable doubt and upon scrutiny of the case with the measuring rod of "Proof beyond Reasonable Doubt" the present one is a clear case of acquittal and the learned Sessions Judge committed no illegality and or irregularity in acquitting the accused/respondents. 5. I have considered the rival submission made by the learned Counsel for the parties. 6. 5. I have considered the rival submission made by the learned Counsel for the parties. 6. In order to appreciate the contentions raised by the learned Counsel for the parties, we are to examine and scrutinize the statements of the prosecution witnesses in the light of the allegations made by the prosecution. 7. On perusal of the FIR it is found that the genesis of the occurrence started while the P.W. 7, Md. Mozibur Rahman, was returning home ironing his cloths, had an altercation with the accused persons in connection with the erection of gate in front of their house. Thereafter, P.W. 7 left the place and went to his house, but being followed by the accused persons with lethal weapons in their hand and trespassed into the courtyard of the complainant and the accused persons allegedly assaulted P.W. 2 and other inmates of the house. P.W. 1, Pariban Nessa, informant, supporting the prosecution case, categorically stated that the accused Suleman Ali, Azad Ali, Firoz Ali and Tazimuddin armed with dao and lathi trespassed into their courtyard and when her husband enquired as to what happened, as per order of accused Mokibur Rahman, accused Safian Ali and other accused attacked him with the blunt edge of the dao causing fracture of his ribs and teethes. Accused Safian Ali, Azad Ali, Mokibur Rahman and Suleman Ali also assaulted the victim. Tazimuddin assaulted her son with a dao and he sustained injury and she (informant) was also assaulted by Azad Ali. Her daughter Musstt. Lilima was assaulted by the accused Firoz. Police took them to the Morigaon Civil Hospital for treatment. Accused Suleman Ali, Azad Ali and Mokibur Rahman also set on fire their house. She raised hue and cry and the accused persons fled away from the seen. Her husband was treated in the Gauhati Medical College. In cross she reiterated that the accused persons assaulted her husband. She denied certain suggestion given to her as regards nondisclosure of certain facts under Section 161, Cr. P.C. while examined by the I.O. In her cross, she categorically stated that her husband was assaulted by Suleman, Safian Ali and Azad Ali with the blunt side of the dao as per order of accused Mokibur Rahman. In cross she further stated that she herself seen the fire set on by the accused persons. 8. P.W. 2, Md. P.C. while examined by the I.O. In her cross, she categorically stated that her husband was assaulted by Suleman, Safian Ali and Azad Ali with the blunt side of the dao as per order of accused Mokibur Rahman. In cross she further stated that she herself seen the fire set on by the accused persons. 8. P.W. 2, Md. Habibur Rahman, husband of the informant in his deposition stated inter alia that on the date of occurrence at about 7.30 p.m. while his son, Md. Mokibur Rahman was returning home, the accused persons for the purpose of constructing a gate erected a post in front of their house to which his son objected and altercation took place. At that stage, as per order of accused Mokibur Rahman, Azad Ali and other accused tried to attack his son by lathi but his son fled away and accused followed him and chased to their courtyard. Finding the door of his house closed, his son ran towards the garden and at that time P.W. 2 he came out of his house and on being enquired, accused Safian Ali attacked him with the blunt side of the dao on his chest as a result of which three of his ribs on the left side were broken and he fell down. Other accused persons also attacked him. His second son was also had cut by Tazimuddin with dao. His wife Pariban Nessa was also attacked by dao. The accused person brought police and they filed a case accusing them. He was taken to civil hospital and he regain sense at about 11.30 p.m. Her daughter informed him that the accused persons set their house on fire. He was in civil hospital for about 8/9 days thereafter he was at Guwahati for 20/25 days for treatment. In cross, he has stated that he has not seen the accused assaulting his son Mozibur Rahman and he lost his sense while he was attacked in his face and chest and he fell down and his ribs were broken and he also got injury on his teeth. He lost his sense when he was attacked by Firoz, Sofian, Azad. Police recorded his statement. He was first assaulted with the blunt side of the dao and first attack was given by Safian by the blunt side of the dao. He lost his sense when he was attacked by Firoz, Sofian, Azad. Police recorded his statement. He was first assaulted with the blunt side of the dao and first attack was given by Safian by the blunt side of the dao. He denied the suggestion that he never stated before the I.O. that the accused Suleman, Safian, Azad, Firoz Ali attacked with the blunt side of the dao. 9. P.W. 3 is the Doctor who examined the P.W. 2 at the Morigaon Civil Hospital. In his deposition he stated that on 20-2-1996 he was at Morigaon Civil Hospital as Sr. Medical and Health Officer-I and on that day at about 9.00 p.m. he examined Md. Habibur Rahman, P.W. 2 and he found the following injuries on his persons. i) Bleeding on the mouth with tenderness chin of the mandible. Clinical fracture of the mandible of both side of the chin. ii) Tenderness on left side of the chest of surgical emphysieze. The case was referred to the Regional Dental College Guwahati for further investigation and treatment. The injuries were fresh in origin, caused by blunt object and were clinically grievous in nature. The patient was discharged on 25-2-1996 and referred to Guwahati Medical college. In his cross, P.W. 3 explained that the clinical fracture means that the fracture that can be ascertained by touching of the body. At the relevant time the X-ray facilities are not available at Morigaon Civil Hospital. He further stated that the injury can also be caused by the hard substance. 10. P.W. 4, Mustt. Lilima Begum, the daughter of the informant who corroborated the statement of the P.W. 1. She categorically stated that the accused Safian attacked her father, P.W. 2, by blunt side of the dao as a result of which his left side ribs were broken. Accused Azad Ali along with other assaulted her father by the blunt side of the dao. Her mother Pariban Nessa was attacked by Azad with lathi. She was also assaulted by Firoj by the blunt side of the dao. Her elder brother was attacked by accused Tazimuddin by dao as a result of which 3-4 stitches were required to be given to him. Police took the injured person to the hospital and her father and elder brother were kept in hospital. She was also assaulted by Firoj by the blunt side of the dao. Her elder brother was attacked by accused Tazimuddin by dao as a result of which 3-4 stitches were required to be given to him. Police took the injured person to the hospital and her father and elder brother were kept in hospital. She also found that her house was set on fire and on being raised hulla accused person also told them to put on fire. Her father was in Morigaon Civil Hospital for 4/5 days and thereafter he was treated at Dental hospital. In cross she maintained her statement made in chief-examination and she denied the suggestion about not speaking of some statement before the I.O. She reiterates that four of the accused persons assaulted her father by the blunt side of the dao on his face. He denied that suggestion that she has not stated before the I.O. that her father was not attacked by the blunt side of the dao and four Nos. of his rib were broken and accused Azad, Mokibur, Suleman and Safian Ali attacked in his face. 11. P.W. 5, another daughter of P.W. 1 also corroborated the statement given by the P.W. 1. She specifically stated that Safian attacked her father and her father fell down. She stated that her father was admitted in the Morigaon civil hospital and was kept there for 5/6 days and thereafter he was shifted to Guwahati Dental College. 12. P.W. 6 is Mokibur Rahman who deposed that he has not seen the occurrence. There was no light and I could not recognize the accused and about 100/150 people were assembled. 13. P.W. 7 is Mozibur Rahman who is one of the victim. He supported the statements made by P.W. 1 and 2. He stated that the accused Safian attacked him on his left leg by a rod on being asked as to why he is erecting gate in front of their gate and he ran away to his house. When his father came out Suleman, Safian and Azad attacked him with blunt side of the dao causing injuries. Accused Firoz Ali attacked his sister with lathi. Accused Dadu assaulted her mother with a lathi and on arrival of police, the accused person fled away. Accused also set into fire their house. In cross he stated that except accused no other persons were there. Accused Firoz Ali attacked his sister with lathi. Accused Dadu assaulted her mother with a lathi and on arrival of police, the accused person fled away. Accused also set into fire their house. In cross he stated that except accused no other persons were there. His mother was assaulted by lathi and her sister Lilima was assaulted by Firoj, his father was assaulted by Safian, Azad, Suleman and other accused persons. 14. P.W. 8 who is the I.O. of the case deposed inter alia that on 21-2-1996 he was O/C of the Morigaon P.S. On receipt of the FIR lodged by P.W. 1 the case was registered and he himself took charge of the investigation. He inspected the case of the occurrence, drew the sketch of the place of occurrence and seized articles. Exbt. 1 is the seizure list and Exbt. 1(1) is his signature. He recorded the statement of the witnesses and at this stage he was transferred and he handed over the CD to the next Officer In-charge of the Police Station. Exbt. 2 is the Ejahar and Exbt. 2(1) is the signature S.I. Sri. Dhaniram Bora submitted the charge-sheet. Exbt. 3 is the charge-sheet and Exbt. 3(1) is the signature of S.I., Sri. Dhaniram Bora. In cross he stated that the accused persons were not transferred to medical by him. He also stated that there is also a cross case which was registered by him. In his cross he stated that he recorded the statement of P.W. 1. He stated that P.W. 1 stated before him that as per instruction given by the accused Mokibur to attack the accused Soleman, Safian and Azad assaulted her. P.W. 1 also stated before him that rib and teeth of her husband was broken. She further stated that P.W. 2 has not stated before him that the accused Firoj assaulted him by blunt side of the dao and the accused. Safian, Mokibur and Azad assaulted upon Mojibur. He further stated that he was not told by the witness that Safian assaulted on his father by blunt side of the dao as result of which his ribs were broken. He further stated that the P.W. 4, Lilima Begum has stated about assaulting by Safion. Similarly, P.W. 4 Lalima Begum has not stated before the I.O. about the assaulting her father by Azad, Safion with lathi causing fracture of four Nos. He further stated that the P.W. 4, Lilima Begum has stated about assaulting by Safion. Similarly, P.W. 4 Lalima Begum has not stated before the I.O. about the assaulting her father by Azad, Safion with lathi causing fracture of four Nos. of ribs and they were threatened to put on fire by the accused. 15. Circumstances that appeared against the accused persons as per statements of P.Ws. were put before them while they were examined under Section 313, Cr. P.C. to which they denied. No defence witness was adduced. 16. Learned trial Judge upon scrutiny of the evidence of the P.Ws. noticed that there are contradiction of the statement of the P.Ws. on material part and they did not state before the I.O. while they were examined under Section 161, Cr. PC. about the name of the accused person who assaulted them. On the basis of such findings the learned trial Judge held that two inconsistent statements were put forward by the prosecution, one before the I.O. and one before the Court. The learned trial Judge also noticed that there was glaring failure on the part of the police to seize the articles allegedly to have been used by the accused person while committing the crime and no corroborative evidence as regards illegal trespass into the compound of the complainant and committing of mischief by setting fire in their dwelling house by the accused persons were found, to hold the accused/appellant them guilty. 17. Meticulous scrutiny and appreciation of the prosecution witnesses disclose that there are two parts of occurrence. Initially when the P.W. 7 was returning home in the evening of the date of occurrence, he fell down upon dashing on the post which was erected for construction of the gate in front of their house, on being contested the accused person chased him to his house. Although he deposed that the accused. Safian attacked him by a spade in the road in front of the gate, there is no corroborative evidence in this regard. Thereafter, the accused chased him up to his residence and trespassing into the compound assaulted P.W. 1, P.W. 2, P.W. 4, P.W. 5, P.W. 6 and P.W. 7. Although the prosecution witness deposed about such assault upon them by the accused person in the Court but there is no supporting medical evidence to that effect. Thereafter, the accused chased him up to his residence and trespassing into the compound assaulted P.W. 1, P.W. 2, P.W. 4, P.W. 5, P.W. 6 and P.W. 7. Although the prosecution witness deposed about such assault upon them by the accused person in the Court but there is no supporting medical evidence to that effect. Only medical evidence is available about the assault by the accused upon the P.W. 2, Md. Habibur Rahman. The evidence of P.W. 3, Doctor discloses that the P.W. 2 sustained injuries on his face and bleeding came out from his mouth and there was clinical fracture of the mandible of both side of the face. Tenderness on left side of the chest were also found by the Doctor and it was stated that the injuries were fresh in origin caused by blunt object and were clinically grievous in nature. In the statement of the prosecution witnesses we find that all the P.Ws. are consistent to the effect that P.W. 2 was assaulted by the blunt side of the dao. It is also on record that the P.W. 2 was treated for some time in Mortgaon Civil Hospital and thereafter he was sent to Dental Hospital for necessary treatment. Contradiction as referred to by the learned trial Judge is not in support of the injuries inflicted upon the P.W. 2. P.W. 2 is very specific that Safian attacked him with the blunt side of the dao on his face. The said fact is corroborated by the statement of the other witnesses. The record also discloses that such statement was made by the P.W. 2 while he was examined by the I.O., during the investigation. On the face of the aforesaid proved facts, the finding of the learned trial Judge that the prosecution failed to prove the injuries inflicted upon the P.W. 2 is not sustainable. There is ample materials on record as discussed above which clearly disclose that the P.W. 2 was assaulted by the blunt side of the dao on his face there was fracture of the mandible of both side of the face. It is also clear from the evidence on record that the aforesaid injury was caused by the Safion. There is ample materials on record as discussed above which clearly disclose that the P.W. 2 was assaulted by the blunt side of the dao on his face there was fracture of the mandible of both side of the face. It is also clear from the evidence on record that the aforesaid injury was caused by the Safion. As regards the injuries alleged to have been sustain by the other P.Ws., there is no clear, cogent and unimpeachable evidence to come to a definite findings as regards sustenance of such injuries, more particularly, in the absence of the medical report in this respect. Contradiction referred to by the learned trial Judge is not in respect of the injury sustained by the P.W. 2 and the part played by the accused Safian in this regard. There are evidence on record that the other accused persons were also present at the time of attacking the P.W. 2 by Safian but no charge under Section 149, Cr. P.C. is framed nor the aid of Section 34, IPC has been taken to rope with the accused Safian. 18. Mr. HRA Choudhury, learned Sr. counsel submits that in the instant case no independent witnesses were examined by the prosecution and all the members are from the same family. That apart, there are vital contradiction as regards the statements of the P.Ws. and there are no convincing medical evidence. Learned Counsel in support of his defence refers the following decision of the Apex Court: i) AIR 2002 SC 2821 : 2002 Cri LJ 3751 (Harijana Thirupala v. Public Prosecutor, High Court of A.P., Hyderabad). ii) AIR 2002 SC 620 : 2002 Cri LJ 987 (Rai Saheb v. State of Haryana) and iii) (2009) 3 SCC (Cri.) 1 : AIR 2009 SC 2292 (Himmat Sukhadeo Wahurwagh v. State of Maharashtra). 19. The law laid down by the Apex Court in the aforesaid cases are in the context of facts totally different from the facts of the present case and the law reiterated in the Apex Court are not applicable to the facts and circumstances of the present case. In such cases, as in hand, the members of the family are the most vital witnesses and the prosecution is at liberty to examine the witnesses they like in support of the case to get a definite clue to the facts of the case. In such cases, as in hand, the members of the family are the most vital witnesses and the prosecution is at liberty to examine the witnesses they like in support of the case to get a definite clue to the facts of the case. In the instant case, it has not brought on record that other persons also witnessed the occurrence that took place in the courtyard of the informant. There is also no discrepancy as regards ocular evidence and medical evidence and both the type of evidence are pointed to the allegations leveled against the accused Safian Ali. 20. The proved facts of the case in the instant case clearly disclose that the act committed by the accused falls within the category's defined under Section 320(7), IPC. Weapon used in the instant case is a dao but blunt side of the dao was used and not the edging side. Considering all these aspects of the matter, I hold that the prosecution has been able to prove the case against the accused Safian Ali and that the provisions of Section 325 of the IPC would be attracted. As regards the other accused person, the prosecution could not establish the case against them by clear, cogent and unimpeachable evidence so as to take a different view from what have been arrived at by the learned trial Judge and their acquittal stands confirmed. 21. In view of the above discussions, the accused Safian is convicted under Section 305, IPC. It is further proved that the accused Safian Ali trespassed into the house of the informant with intent to assault P.W. 2 and/or to annoy the informant and her family members and ultimately attacked P.W. 2 and caused grievous injury and as such the accused has also committed offence punishable under Section 447, Cr. P.C. 22. At this stage Mr. Choudhury submits that since the occurrence took place in the year and the accused was set on free by the impugned judgment dated 31-8-2001, some leniency may be shown in imposing the sentence. Learned PP is also heard on this point. 23. Upon hearing the learned Counsel for the parties and taking note of the entire facts and circumstances of the case including the injury sustained by the victim, the accused Safian Ali is sentenced to pay fine of Rs. 300/- (Rupees three hundred) for commission of offence under Section447, Cr. Learned PP is also heard on this point. 23. Upon hearing the learned Counsel for the parties and taking note of the entire facts and circumstances of the case including the injury sustained by the victim, the accused Safian Ali is sentenced to pay fine of Rs. 300/- (Rupees three hundred) for commission of offence under Section447, Cr. P.C. and in default to undergo RI for 15 days. He is further convicted under Section 325, Cr. P.C. to undergo RI for six months and to pay fine of Rs. 5,000/- (Rupees Five Thousand) in default further to undergo RI for three months. The fine or being realized be paid to P.W. 2, Md. Habibur Rahman. The accused Safian Ali is directed to surrender before the learned trial Court to serve out the sentence. 24. Accordingly, the appeal is partly allowed.