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2009 DIGILAW 938 (GAU)

Md. Ali Raja v. State of Assam

2009-12-23

BIPLAB KUMAR SHARMA, J.CHELAMESWAR

body2009
JUDGMENT B.K. Sharma, J. 1. These two appeals are directed against the judgment and order dated 24.6.2008 passed by the learned Addl. Sessions Judge, (FTC) Hojai at Sankardev Nagar in Sessions Case No. 67(N)/07 by which both the accused/appellants have been convicted under Section 302, IPC and sentenced to undergo RI for life and to pay fine of Rs. 1,000 each and in default, to undergo RI for six months. 2. The criminal case against the accused/appellants was set to motion with lodging of the FIR on 9.9.2005 with the Officer-in-Charge, Daboka Police Station. The FIR was lodged by one Smt. Kulshuma Begum (PW1). As per the FIR, the accused/appellants along with another Md. Asir Ali took the deceased away from his home at about 10 P.M. on 8.9.2005. While taking away the accused Md. Asir Ali stated that they had some special matter to discuss. The deceased who was the husband of the informant did not return home and in the morning at about 5 A.M. the informant went to the house of the accused Md. Asir Ali. She found the dead body of her husband with grievous injuries in the paddy field near the house of the said accused. In the FIR it was further stated that she came to know that her husband was murdered by the accused persons named in the FIR who are the present appellants and said Md. Asir Ali husband of the accused appellant in Criminal Appeal No. 115(J)/08. 3. On receipt of the FIR, the police carried out necessary investigation etc. and charge sheet was filed against the appellants under Section 302 / 34, IPC. The case being exclusively tribal by the court of sessions, same was committed to the Sessions Court by the learned Judicial Magistrate, 1st Class, Sankardev Nagar, Hojai. 4. The prosecution examined 5(five) witnesses and the defence examined 6 (six) witnesses. The statements of the accused under Section 313, Cr.PC were also recorded. 5. PW1 in her deposition stated as to how in the particular night the accused/appellant Md. Ali Raja along with Md. Asir Ali took her husband away from the house. They took him away stating that they had to settle something. Her husband did not return that night. In the following morning at about 5 A.M. she found her husband lying dead in the paddy field of the accused person. Ali Raja along with Md. Asir Ali took her husband away from the house. They took him away stating that they had to settle something. Her husband did not return that night. In the following morning at about 5 A.M. she found her husband lying dead in the paddy field of the accused person. She found many injuries in head, eyes and legs of her husband. She then went to the house of the accused and found blood sticking in the walls there. According to her, villagers namely Farid Ali, Safikur Rahman, Saidul Raman and many others saw the occurrence. She further deposed that Jubeda Khatoon, the co-accused herself appeared in the police station after the incident. According to her statement, her husband had no quarrel with the accused persons. 6. PW2 is one Shri Amin Ali and brother of the deceased. In his deposition also he stated about the occurrence. He was informed about the incident by one of his nephews who stated before him that it was the accused/appellant Md. Ali Raja who had killed the deceased along with Md. Asir Ali. He then rushed to the house of the deceased brother and enquired about the matter. On such enquiry, he was informed by his brother's wife as to how the deceased had gone out at night along with the said accused/appellant and Md. Asir Ali. He then went to the police station along with his brother's wife and she lodged the FIR. Thereafter the police came to the place of occurrence and seized an axe, two sticks and a dao. Ext. 2 is the seizure list. PW2 also stated about the injuries sustained by the deceased. 7. PW3 in his deposition stated that he knew the deceased and both the accused. On the particular day he woke up hearing commotion raised by the people. He heard that Fatir Ali, i.e., the deceased, had died. He did not know as to who had killed him. 8. PW4 is the S.I. of Police station at Daboka who carried out the investigation. As per his statement, on 9.9.2005, Jubeda Khatoon appeared in the police station in an injured state and informed that in the previous night her co-villager Md. Fatir Ali, i.e., the deceased had trespassed into her house and tried to rape her as a result of which there was a scuffle. As per his statement, on 9.9.2005, Jubeda Khatoon appeared in the police station in an injured state and informed that in the previous night her co-villager Md. Fatir Ali, i.e., the deceased had trespassed into her house and tried to rape her as a result of which there was a scuffle. According to her, Fatir Ali had attacked her and she sustained injuries. She managed to snatch the dao and the stick from Fatir Ali and went to the police station. PW4 stated about the injuries sustained by Jubeda Khatoon which was wrapped by clothes. Jubeda Khatoon deposited the dao and the stick in the police station. It was only thereafter the aforesaid FIR was lodged by the PW1, PW4 in his deposition generally stated about the investigation carried out by him. 9. PW5 is the Doctor who had conducted the post mortem examination over the dead body. He in his statement while stating about the injuries that were found on the dead body, opined that the cause of death was due to shock and haemorrhage resulting from the injuries sustained by the deceased. 10. DW1 Asab Ali in his deposition stated that the deceased had stolen a cow from one Samiruddin about six months prior to the incident. The cow was slaughtered and thereafter the deceased distributed beef. According to him the deceased was caught by the accused/appellant Md. Ali Raja along with public and an FIR was lodged. Later on the matter was settled and the deceased paid Rs. 4,000 to Samiruddin's father Manik Raja. DW2 Manik Raja stated in tune with DW1, DW3 is the son of Asir Ali. He in his deposition stated that on the particular night he saw his mother scuffling with the deceased. According to him the deceased had hit his mother on her head with a dao and when he gave another blow her mother could snatch away the dao and raised hue and cry and then the deceased ran away. He also stated that he saw two men running on the road and following them the deceased was also running. According to him on the same night he along with his mother went to his maternal uncle's house and he was informed about the occurrence. In the morning his mother went to the police station and lodged the FIR. 11. DW4 is the accused/appellant Jubeda Khatoon. According to him on the same night he along with his mother went to his maternal uncle's house and he was informed about the occurrence. In the morning his mother went to the police station and lodged the FIR. 11. DW4 is the accused/appellant Jubeda Khatoon. She in her deposition also stated about entering her house by the deceased and how he tried to rape her. She also narrated about the scuffle and the injuries sustained by her. She further stated about getting hold of the dao and snatching away the same from the accused and thereafter going to the police station along with her son, DW3. 12. DW5 is the accused/appellant Md. Ali Raja. He in his deposition stated about stealing of a cow by the deceased and as to how he, along with the public caught hold of the deceased. He also stated about the settlement of the matter by the public and as to how the deceased paid Rs. 4,000 to his brother. DW6 is one Shri Kabir Hussain who in his deposition stated that the deceased was involved in theft, robbery, murder and rape cases. He also stated as to how he tried to take Jubeda to his house by dragging her. He further stated that the villagers told him that the deceased hacked jubeda by entering into her house. 13. Both the accused persons in their depositions under Section 313, Cr.PC denied their involvement in the offence alleged. 14. We have heard Mr. H.R.A. Choudhury, learned senior Counsel assisted by Ms. S.K. Nargis, learned Counsel for the accused/appellants. We have also heard Mr. Z. Kamar learned P.P., Assam along with Mr. K.A. Majumdar, learned Addl. P.P., Assam. We have also gone through the entire materials on record. 15. The case of the prosecution is based on circumstantial evidence. According to the trial court incriminating evidences on record have completed the chain from which an irresistible conclusion can be drawn that it was the accused persons who had committed the murder and none else. While arriving at such a conclusion the trial court has disbelieved the statements made by the DWs. 16. Scrutinizing the evidences on record, what we find is that except the evidence that the deceased was called by the accused/appellant Md. Ali Raja along with Md. While arriving at such a conclusion the trial court has disbelieved the statements made by the DWs. 16. Scrutinizing the evidences on record, what we find is that except the evidence that the deceased was called by the accused/appellant Md. Ali Raja along with Md. Asir Ali from his house, there is nothing to suggest that it was the accused/appellants who had committed his murder. Merely because the dead body was found in the paddy field near the house of Md. Asir Ali, same by itself cannot conclusively establish that it was the accused/appellants who had killed the deceased. As per the statement of PW1, the occurrence was witnessed by Farid Ali, Safikur Rahman, Saidul Raman and many other villagers, but none were examined by the prosecution. 17. Merely because the accused/appellant Jubeda Khatoon had appeared before the police station with a dao and stick and with injuries on her body, same by itself cannot lead to the irresistible conclusion that it was she who had killed the deceased. Rather it is in evidence that the deceased had entered into her house and tried to rape her following which a scuffle took place in which the deceased inflicted grievous injuries on her body. Thereafter snatching the dao and stick from his hand she went to the police station along with her son. It is not the case of the prosecution that because of such offence on the part of the deceased she had committed his murder. 18. PW2 in his deposition has only stated that on the previous night the accused/appellant Md. AH Raja along with Asir Ali had taken away his sister's husband, i.e., the deceased. It is not the case of the prosecution that while he was taken away force was applied. Merely because the deceased was called by the accused/appellant along with Asir Ali and they had gone out together, without establishing anything more much less completion of any chain of events, it cannot be said to be a case of circumstantial evidence so as to establish the offence under Section 302, IPC. As already noticed above, charge was framed only against the accused/appellants and not against the remaining co-accused, namely Asir Ali. Asir Ali was shown as absconder in the charge sheet and the case against him was filed vide order dated 31.10.2006 passed by the learned SDJM, Sankardev Nagar, Hojai. 19. As already noticed above, charge was framed only against the accused/appellants and not against the remaining co-accused, namely Asir Ali. Asir Ali was shown as absconder in the charge sheet and the case against him was filed vide order dated 31.10.2006 passed by the learned SDJM, Sankardev Nagar, Hojai. 19. Apart from PW1 and PW2, other witnesses have not stated anything even in respect of the fact of calling the deceased by the accused/appellants. Even if the statements made by PW1 and PW2 regarding such a state of affair are accepted, same by itself does not lead to establish every link in the circumstances leading to the death of the deceased. It cannot be said to be a case of establishing the chain of events as is required in case of establishing an offence by way of circumstantial evidence, lb base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however, grave it may be, cannot he a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. Refer to Anil Kumar Singh v. State of Bihar : (2003) 9 SCC 67 and Reddy Sampath Kumar v. State of A.P. (2005) 7 SCC 603 . 20. As has been held by the Apex Court in Ramreddy Rajesh Khanna Reddy and Anr. v. State of A.P. (2006) 10 SCC 172 , the last seen theory comes to play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration. As has been held in State of U.P. v. Satish (2005) 3 SCC 114 , in the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt. Even in such a case the courts should look for some corroboration. As has been held in State of U.P. v. Satish (2005) 3 SCC 114 , in the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt. It is well known that motive by itself is not sufficient to prove the guilt. 21. In the instant case except the statements of PW1 and PW2 that the deceased was called by the accused/appellant in criminal appeal No. 136/08 along with other co-accused, namely Md. Asir Ali, there is no other evidence that could be said to have been led by the prosecution to positively conclude that it was the accused/appellants who had killed the deceased. Merely because the dead body was found in the nearby paddy field of the house of Md. Asir Ali, that by itself cannot lead to irresistible conclusion as is required for conviction, that it was the accused/appellants who committed the murder. 22. In so far as the accused/appellant Jubeda Khatoon in criminal appeal No. 115(J)/2008 is concerned, there is absolutely no evidence against her. Even in the FIR no overt act on her part has been narrated. The only evidence against her is that there was a scuffle between, her and the deceased and she had snatched away the dao and the stick from the hand of the deceased. That was only after she had sustained injuries at the hands of the deceased. Thereafter, she had gone to the police station along with her son. It is not the case of the prosecution that she had killed the deceased. 23. For all the aforesaid reasons, it cannot be said to be a case of establishing the offence under Section 302, IPC against both the accused/appellants based on circumstantial evidence. There is no evidence at all which can be said to have established a chain of events so required to be established in case of conviction based on circumstantial evidence. This, being the position, we have no hesitation to set aside and quash the impugned judgment of conviction dated 24.6.2008 passed by the learned Addl. Sessions Judge, (FTC) Hojai at Sankardev Nagar in Sessions Case No. 67(N)/07. 24. This, being the position, we have no hesitation to set aside and quash the impugned judgment of conviction dated 24.6.2008 passed by the learned Addl. Sessions Judge, (FTC) Hojai at Sankardev Nagar in Sessions Case No. 67(N)/07. 24. Upon setting aside and quashing the impugned judgment and order dated 24.6.2008, both the accused/appellants shall be set at liberty forthwith, if not wanted in connection with any other case. Let the case records be sent down to the trial court along with a copy of this judgment and order.