Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 879 (GAU)

Ambar Ali v. State of Assam

2009-12-08

ASHOK POTSANGBAM, RANJAN GOGOI

body2009
JUDGMENT A. Postangbam, J. 1. The appeal is preferred from jail by the Appellants, who have been found guilty of the offence under section, 302/34, IPC by the learned Sessions Judge, Cachar, Silchar, in his judgment dated 9.12.2003 passed in Sessions Case No. 43/2000. By the aforesaid judgment, under appeal, the Appellants were sentenced to life imprisonment with a fine of Rs. 10,000,00 each, in default thereto, Appellants were, to suffer rigorous Imprisonment for six months and the fine amount, if realised, would be paid to the wife of the deceased by way of compensation. 2. We have heard Smt. R.S. Chowdhury, learned amicus curiae for the Appellants and Mr. Z. Kamar and learned Public Prosecutor for the State. 3. The prosecution story, in brief, is that the deceased Mona Miya purchased 8 bighas of land from one Abdul Khaliq, a co-villager, for consideration of a sum of Rs. 30,000 of which Rs. 2,000 remaining as unpaid balance. In order to pay the aforesaid balance amount, paddy worth of Rs. 2,000 was sold, in credit, by deceased Mona Miya to late Jair Uddin, a co-villager of the deceased. On 7.11.1996, the deceased Mona Miya went to the house of Late Jair Uddin to collect the aforesaid sum of Rs. 2,000, being the price of the sold-out paddy and there, at about 6 p.m., instead of paying the money, a quarrel was ensued and the deceased Mona Miya was chased out of the house of late Jair Uddin by the Appellants and some others named in the FIR. Later on, the deceased was caught by the accused on the bottom of the Tilla (residential house of the deceased) and assaulted him with lathi, dao and ballam. As a result, the deceased sustained multiple injuries on his body and he died on way to the Police Station. Msstt. Narul Nessa, wife of the deceased lodged a FIR on 8.11.1996 to the Officer in-Charge, Jirighat Police Station, alleging that at 6. p.m. of 7.11.1996, the following accused persons namely, Md. Ambar Ali, Md. Fuler Uddin, Md. Jilan Miya, Md. Jamal Uddin and Mr. Jair Uddin came into the house of the deceased Mona Miya and assaulted her deceased husband with dao, ballam and lathi and as a result, the deceased succumbed to his injuries. Accordingly, G.R. Case No. 2790/1996 was registered under Sections 147/148/149/448/427/325/323/302, IPC. 4. Ambar Ali, Md. Fuler Uddin, Md. Jilan Miya, Md. Jamal Uddin and Mr. Jair Uddin came into the house of the deceased Mona Miya and assaulted her deceased husband with dao, ballam and lathi and as a result, the deceased succumbed to his injuries. Accordingly, G.R. Case No. 2790/1996 was registered under Sections 147/148/149/448/427/325/323/302, IPC. 4. An inquest was held by the Investigating Officer on 8.11.1996. On the same day, post-mortem on the dead body of the deceased was performed at Silchar Medical College and Hospital by the Professor and Head of the Deptt. of the Forensic Medicine. Altogether, the investigation cited 8 persons as P Ws including the Doctor who performed the autopsy and the Police Officer who conducted the investigation. 5. The police, after completion of investigation, submitted charge sheet and the offences being triable by the Court of Sessions, the case was committed by the Judicial Magistrate, First Class, Silchar, on 3.4.2000 to the Court of Sessions Judge, Cachar, Silchar, who framed the charges on 30.3.2001 against four of the five accused persons named in the FIR, i.e., Jamal Uddin, Fular Uddin, Ambar Ali and Jilan Ali for offences punishable under Sections 147/148 and 302, IPC. The accused Jair Uddin expired during investigation and as such, his name was struck off from being an accused in the case. All the accused persons pleaded not guilty. Thereafter, after trial, the learned Sessions Judge found the two Appellants guilty of offence punishable under Section 302/34, IPC and sentenced them to life imprisonment and fine. 6. We will now examine the evidence on record and the reasoning adopted by the learned Sessions Judge, Kachar, Silchar, to find out whether the conviction and the sentence imposed by the impugned judgment dated 9.12.2003, can be sustained or not. 7. The case of the prosecution rests on the evidence of PW Nos. 1, 2, 3 and 5, who were said to be the eye witnesses to the incident. PW Nos. 1 and 3 are the brothers of deceased and PW No. 2 is the wife of the deceased. All the PW Nos. 1, 2 and 3 have stated in their evidence that deceased Mona Miya visited the house of Late Md. Jair Uddin on 7.11.1996 to collect a sum of Rs. 2,000 being the price of the sold-out paddy and a quarrel developed there and thereafter, the accused Md. Ambar Ali and Md. All the PW Nos. 1, 2 and 3 have stated in their evidence that deceased Mona Miya visited the house of Late Md. Jair Uddin on 7.11.1996 to collect a sum of Rs. 2,000 being the price of the sold-out paddy and a quarrel developed there and thereafter, the accused Md. Ambar Ali and Md. Jilan Miya along with others chased the deceased Mona Miya. For fear of assault, Mona Miya took shelter in the nearby Tilla where he was caught and assaulted by the accused persons with lathi, dao and ballam and as a result, the deceased sustained multiple injuries on his body and thereafter he died on way to Police Station. PW No. 2 corroborated the evidence of the PW No. 1, by stating in her evidence that accused Md. Ambar Ali and Md. Jilan Miya assaulted her husband by holding a dao and ballam respectively. As a result, the deceased who received multiple injuries succumbed to his injuries. Similarly, the PW No. 3 stated that he saw Md. Ambar Ali and Md. Jilan Miya assaulting the deceased and Md. Ambar Ali was seen giving a dao blow to the deceased. The narration and evidence of the PW Nos. 1, 2 and 3 appear to be natural and corroborative to each other and their evidence remained unshaken in the cross-examination and therefore, there is no reason to disbelieve the evidence of PW Nos. 1, 2 and 3. 8. Even assuming that evidences of P Ws. 1, 2 and 3 are to be disbelieved or are to be discarded on the ground that they are interested witnesses, the evidence of PW 5, Md. Jamal Uddin Barbhuiya who is an independent eye witness and not related with any of the prosecution witnesses or the accused, cannot be ignored. PW 5 stated in his evidence that on the fateful day, he went to the house of the accused, namely Md. Fuler Uddin, to purchase rice and at that point of time he saw Md. Ambar Ali and Md. Jilan Miya, the Appellants, being accompanied by others, assaulting Mona Miya by means of lathi and Ballam. It is also in the evidence of PW No. 5 that Md. Sona Mia and Nurun Nessa, brother and wife of the deceased respectively, rushed to the place of occurrence but they were also assaulted by the accused. Ambar Ali and Md. Jilan Miya, the Appellants, being accompanied by others, assaulting Mona Miya by means of lathi and Ballam. It is also in the evidence of PW No. 5 that Md. Sona Mia and Nurun Nessa, brother and wife of the deceased respectively, rushed to the place of occurrence but they were also assaulted by the accused. The evidence of PW No. 5 who is an independent eye witness remained unshaken in the cross-examination thereby clearly establishing the commission of the charged offence by the Appellants. It is seen from the record that Md. Fuler Uddin is one of the accused against whom charges were framed by the learned Sessions Judge, along with the Appellants but at the end of the trial, he was acquitted for want of evidence against him. 9. The doctor who performed the post-mortem examination on the dead body of deceased Moha Miya, found the following injuries: External appearance: The deceased was of average built and the wearing garment was blood stained. The trunk and feet were blood stained and with soil. Rigor mortis present all over the body. Injuries: (1) Linear bruises 10 c.m. long with 1.2 c.m. wide with 3 mm. Interventing the healthy area placed over front and medial side of the left thigh, one placed vertically and the other transversely in a T-shaped manner. The bruises were bluish in colour. (2) Lacerated would over the right side upper part of face below the medial end of lower eyelid measuring 1.2 x. 1 x 1 c.m. covered with blood clot. (3) Punctured would with irregular margins over left iliac fossa region (mid part of inguinal ligament) measuring 1 c.m. x 5 c.m. x 1 c.m. Margins covered with blood clot. (4) Lacerated would on left side of the forehead closed to the hair measuring 5 x 2 c.m. x scalp deep, the wound gapping and exposing the underlying frontal bone. (5) Lacerated would of left side vertex part of scalp on posterior aspect measuring 5 x 1 c.m. x scalp deep. Blood clots adherent to the wound margins. Massive contusion of frontal and parietal scalp. (6) Fissured facture of parietal bone 10 cm long extended up to the frontal bone with leakage of blood. (7) Sub-arachnoid haemorrhage over the right side of the brain. (8) Cerebral cortex contused as a whole. The abdomen and thoracic organs were congested. Blood clots adherent to the wound margins. Massive contusion of frontal and parietal scalp. (6) Fissured facture of parietal bone 10 cm long extended up to the frontal bone with leakage of blood. (7) Sub-arachnoid haemorrhage over the right side of the brain. (8) Cerebral cortex contused as a whole. The abdomen and thoracic organs were congested. The Doctor who performed the post-mortem was of the opinion that the death of the deceased resulted from ante mortem head injury. The evidence of the Medical Officer also made it clear that the death of deceased Mona Miya was homicidal in nature. 10. The Officer-in-Charge of the Jirighat Police Station, who received and reregistered the FIR case, i.e., G.R. Case No. 2790 of 1996, deposed as PW No. 8. The FIR and endorsement on it were proved by Respondent No. 8 as Exhibit 2 and Exhibit 2(1) respectively. He also stated that the statement of the witnesses were recorded by him under Section 161 of Code of Criminal Procedure. Inquest report as well as post-mortem report were also collected during his tenure as Officer-in-Charge of the Police Station and after completion of the investigation, the charge sheet was submitted to the court. 11. On perusal of the impugned judgment and evidences on record, it appears that the accused have taken the plea of alibi, i.e., absence from the place of occurrence at the relevant point of time and alternatively, the plea of grave and sudden provocation was also taken so as to bring the case of the Appellants within Exception-1 to Section 300, IPC. No evidence is adduced in respect to the plea of alibi and therefore, we do not find it necessary to discuss anything on this plea. 12. The case of the defence is that Mona Bibi, aged about 14 years, younger sister of accused Md. Ambar Ali, went and physically appeared at Jirighat Police Station on 7.11.1996 and complained that the deceased Mona Miya, taking advantage of absence of male members in the house, trespassed and forcibly committed rape on her and on her raising hue and cry, the deceased was chased away by the villagers. But Mona Bibi did not submit any FIR, complaint in writing despite being asked by the Jirighat Police Station to do so. But Mona Bibi did not submit any FIR, complaint in writing despite being asked by the Jirighat Police Station to do so. However, on requisition from the Jirighat Police Station, the said Mona Bibi was medically examined by one Doctor namely, Sri Homeswar Sharma, Professor and head of the Forensic Department, Silchar Medical College on 9.11.1996 and Dr. Homeswar Sharma was also examined as PW No. 6 by the prosecution. 13. Defence has produced two witnesses, DW No. 1 is one Sri Khitindra Kr. Deb, who was a Sub-inspector of Police in the Jirighat Police Station at that relevant point of time. According to the evidence of DW No. 1, Mona Bibi, the younger sister of the accused Md. Ambar Alt, appeared at the Police Station on 7.11.1996 and informed that taking advantage of absence of other inmates in the house, the deceased Md. Mona Miya trespassed and forcibly committed rape on her. After recording G.D. entry No. 125, the victim was sent for medical examination and no written FIR or complaint in writing was submitted by Mona Bibi despite having asked to do so by the DW No. 1. DW No. 2 is a Doctor, who physically examined the said Mona Bibi on 9.11.1996, on requisition from the Jirighat Police Station. On examination of Mona Bibi, who was approximately 14 years old at the relevant point of time, the Doctor found that she sustained injuries on her breasts, face and hymen. However, evidence of recent sexual intercourse was ruled out. The Doctor, DW No. 2 opined that nature of the injuries sustained by the Mona Bibi was suggestive of forcible sexual intercourse but no complaint in writing or FIR has been lodged by the alleged victim girl nor by any member of her family against the forcible rape or attempt of forcible rape on her by the deceased. That apart, the alleged victim, Mona Bibi, was not examined as a witness in the proceedings of the trial and this non-examination is not only fatal to the case of the defence but it has also demolished the plea of the defence that Mona Miya forcibly attempted to commit rape on Mona Bibi and on hue and cry being raised by Mona Bibi, the villagers rushed, chased and killed Mona Miya. Thus, defence has failed to establish their case. 14. Thus, defence has failed to establish their case. 14. We have perused the evidence of the witnesses and also the impugned judgment and order dated 9.12.2003. We are of the considered opinion that there are sufficient evidence to justify the conclusion of the learned Sessions Judge that the Appellants were responsible for the death of the deceased Mona Miya and as such, the conviction and the sentence imposed by the learned Sessions Judge, Cachar, Silchar on the Appellants, need no interference. We have also noticed that the two other accused persons, namely Md. Fuler Uddin and Md. Jamal Uddin were rightly acquitted by the learned Sessions Judge as there was no evidence to bring home the charges framed against the two accused persons. In the result, the appeal fails and accordingly, the same is dismissed. 14. There shall be no order as to costs. 15. It is ordered that the learned amicus curiae shall be paid a sum of Rs. 5,000 (Rupees five thousand) only as her fees. 16. Send down the LCR.