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2010 DIGILAW 635 (GAU)

Abdul Motleb v. State of Assam

2010-08-23

AMITAVA ROY, C.R.SARMA

body2010
JUDGMENT Amitava Roy, J. 1. The appellants are aggrieved by their conviction under section 302/201/149 of the Indian Penal Code ('the Code/IPC') and the sentence of imprisonment for life together with a fine of Rs. 10,000 each, in default, rigorous imprisonment for another two years for the offence under section302/149, IPC as well as the sentence of rigorous imprisonment for a period of three years for the offence under section 201/149, IPC as recorded in the judgment and order dated 15.2.2005 passed by the learned Sessions Judge, Morigaon in Sessions Case No. 22 of 2001. Both the sentences were ordered to run concurrently. 2. We have heard Mr. A.S. Choudhury, senior advocate and Mr. M.H. Ahmed, advocate for the appellants and Mr. K.A. Majumder, learned Public Prosecutor, Assam, for the state. 3. On an FIR lodged on 15.6.1996 by one Md. Hazarat Ali with the Officer-in-Charge, Mairabari police station to the effect that in the same evening, the appellant Nos. 1, 2, 4, 5 and two others had hacked and stabbed his younger brother Abdul Kashem to death and had further caused severe injuries to Abu Taher and Abdul Hakim by assaulting with spears and does Mairabari P.S. case No. 57 of 96 under section 147/148/149/326/302/201, IPC was registered. On the conclusion of the investigation, charge sheet was submitted against all the accused-appellants along with four others. Eventually, charge was framed against the appellants and one Md. Giyasuddin under section302/201/149, IPC to which they pleaded "not guilty". The prosecution examined fourteen witnesses where after the statements of the accused persons, who stood the trial, were recorded under section 313, Cr.PC. No evidence was adduced on behalf of the defence. The impugned judgment and order followed. During the pendency of the trial, Md. Giyasuddin expired. 4. The learned counsel for the appellants have persuasively argued that as the evidence on record does not establish the ingredients of section 149, IPC, in absence of the proof of individual roles of the appellants in the alleged assaults, their conviction as recorded is wholly unsustainable in law and on facts and is liable to be interfered with. Asserting want of proof of motive of the appellants in committing the alleged offence, the learned counsel have argued that the evidence of the only eye witness Abdul Hakim, PW3 is deficient in material particulars and insufficient to establish the complicity of all the accused-appellants. Asserting want of proof of motive of the appellants in committing the alleged offence, the learned counsel have argued that the evidence of the only eye witness Abdul Hakim, PW3 is deficient in material particulars and insufficient to establish the complicity of all the accused-appellants. The evidence of PW2 and PW7 who endeavoured to reproduce the disclosures made by the deceased Abu Taher implicating the accused-appellants has been dismissed on the ground that their testimony is wholly incompatible with that of PW9 rendering their presence at the place of occurrence highly doubtful. Moreover, if the version of the eye witness, PW3 is accepted having regard to the injuries sustained by him, he by no means could have been in a state to have noticed the assaults on the deceased person. 5. The learned counsel for the appellants have, however, urged that as admittedly the alleged incident took place late in the evening, in the absence of any convincing proof of the identification of the appellants as the assailants, they cannot be said to be unmistakably involved therein. The omission on the part of the Investigating Officer to record the dying declaration of Abu Taher though he was alive for over 48 hours after the incident is fatal for the prosecution, they urged. According to them, the evidence of PW2 and PW7 about the disclosures made to them of the incident by Abu Taher does not deserve any credence they having omitted without any explanation to mention about the same in their statement recorded under section 161, Cr.PC. While contending that the prosecution has miserably failed to prove the charge against the accused-appellants, it has been urged without prejudice to this stance that even if the testimony of PW3 is accepted on its face value only a stray assault by the appellant No. 3 on Abu Taher stands established. In absence of any prior concert or pre-meditation the assault made by him cannot attract the offence of section 302/149, IPC and that as meanwhile he (appellant No. 3) along with other appellants are in imprisonment for five years, the sentence, if any, awarded for his individual act ought to be set off against the same. In all, the learned counsel for the appellants argued that having regard to the gross Infirmities in the prosecution case, the accused-appellants are at present entitled to be acquitted. In all, the learned counsel for the appellants argued that having regard to the gross Infirmities in the prosecution case, the accused-appellants are at present entitled to be acquitted. To reinforce their arguments reliance have been placed on the decisions of the Apex Court in Anil Rai v. State of Bihar, 2001 Cri. LJ 3969; Bhima alias Bhima Rao Sida Kamble and Others v. State of Maharashtra, AIR 2002 SC 3086 and Shrishti Narain Jha v. Bindeshwar Jha and Others, (2009) 6 SCC 457 . 6. The learned Public Prosecutor while referring to the evidence of PW2, PW3, PW7 and PW9 has urged that a cumulative reading thereof establish the charge against the accused-appellants beyond all reasonable doubt and therefore, the impugned judgment and order is valid and does not warrant any interference by this court. 7. A brief survey of the evidence at this stage is called for. PW1 Md. Billal Hussain is a witness to the inquest of the deceased Abdul Kashem and he proved the inquest report as Ext.1 and his signature thereon as Ext. 1/1. While expressing ignorance about the genesis of the occurrence, this witness referred to another injured named Abu Taher who after the occurrence received medical treatment in a nearby civil hospital. PW2 Md. Abdul Motin deposed that at about 2 am of 16.6.1996, the wife of the deceased Abdul Kashem came to his house and informed him that her son-in-law Abu Taher, her husband Abdul Kashem and Abdul Hakim were assaulted in the house of appellant No. 1. The witness stated that along with Sekender Ali and others he went to the house of the appellant No. 1 and in the way on hearing a cry located Abu Taher and he (Abu Taher) on being queried stated that he had been assaulted by the appellant Nos. 1, 2 and 3 and two others, namely, Giyasuddin and Samsuddin. The witness further stated that they then took Abu Taher to the Mairabari police station en route to Naogaon Civil hospital where he died a day after. The witness also stated to have located the dead body of Abdul Kashem at a distance of one furlong from the house of the appellant No. 1 by the side of a stream. In cross-examination, this witness stated about the murder of Abdul Kashem as well as infliction of injury on Abdul Hakim. The witness also stated to have located the dead body of Abdul Kashem at a distance of one furlong from the house of the appellant No. 1 by the side of a stream. In cross-examination, this witness stated about the murder of Abdul Kashem as well as infliction of injury on Abdul Hakim. He denied the suggestion that he had not stated before the police that the wife of the deceased Abdul Kashem had come to his house in the mid-night and had informed about the occurrence and that on receiving the said information he along with others had proceeded to the place of occurrence and in the way hearing the cry of Abu Taher met him and that the latter had disclosed to him about the incident and the involvement of the accused appellants. 8. PW3 Abdul Hakim who has been presented as the only eye witness by the prosecution, testified that the deceased Abdul Kashem had married the daughter of the appellant No. 1 and as his wife was not being allowed to return by her father, he (deceased) complained about the same to the villagers. The witness stated that the appellant No. 1 on the date of occurrence asked the deceased Abdul Kashem to go to his house to bring his wife and accordingly, a meeting was held in his (appellant No. 1) house in which he (witness), Abu Taher, Suraj Ali and others assembled. The witness also mentioned about the presence of some other persons. The witness stated that during deliberations, a 'marpit' took place in course of which the accused-appellant No. 3 assaulted Abu Taher with a lance in his chest. The witness further stated that Rafiq assaulted Abdul Kashem with some weapon and accused-appellant No. 1 impaled his back with a lance. At that stage, the witness stated, all the persons started to flee and Abu Taher took shelter in a paddy cultivation having received injuries in his chest. He also stated that Abdul Kashem, however, being injured fell in the courtyard of the appellant No. 1. 9. PW4 Khalibur Rahman is a reported witness and was present at the time of inquest. PW5 Dr. K.C. Basumatari who performed the post mortem examination on the dead body of Abu Taher stated to have found the following injuries : -- Injury No. 1. 9. PW4 Khalibur Rahman is a reported witness and was present at the time of inquest. PW5 Dr. K.C. Basumatari who performed the post mortem examination on the dead body of Abu Taher stated to have found the following injuries : -- Injury No. 1. One surgical wound with stitches in the middle of the abdominal wall 17.2 cm in length in vertical plane. Injury No. 2. One surgical wound 13.5 cm in length with stitches in the left side of the abdominal wall in transverse plane. This would joined with the surgical wound No. 1. Injury No. 3. One stab wound 2.5 cm x 0.4 cm in the abdominal cavity deep elliptical in shape in the right side of the abdominal wall 19 cm above the right iliac crest and 6.5 cm lateral to the midplane of the body. The margins of the would are sharp and clean, ecchymosis present in the margins of the wound. He proved the post mortem report as Ext.3 and stated that the cause of death was due to shock and haemorrhage resulting from the injuries sustained. PW6 Dr. Kalyan Kr. Bora had performed the autopsy on the dead body of Abdul Kashem. He stated about the following injuries on the dead body : - (1) One punctured wound over fourth left inter costal space in the mid axillary line of size 1 x " caused by sharp weapon. (2) One incised wound of size " x 1/8" x 1/8" over right elbor. The penis is covered by insects and eaten away. Skin and soft tissues were eaten by maggots. Cranium and spinal cord: Pale and healthy. Scalp, vertebrae, membrane and spinal cord: Pale and healthy. Walls, ribs and cartilage: Ribs and cartilage are intact. Pleura contains dark liquid blood, lacerated injury in right pleura 1" x 1" (3) Right lung collapsed, lacerated injury in lower lobe, size 1" x 1". (4) Pericardium : Lacerated injury of size W1 x W on anterior aspect. (5) Heart: Lacerated injury of wall of the right atrium of size 2" x 2". The witness stated that the injuries were ante mortem and were caused by sharp weapon. (4) Pericardium : Lacerated injury of size W1 x W on anterior aspect. (5) Heart: Lacerated injury of wall of the right atrium of size 2" x 2". The witness stated that the injuries were ante mortem and were caused by sharp weapon. PW7 Sekender Ali stated that he received the information of the occurrence at about 2 a.m. on 16.6.1996 through the wife of the deceased Abdul Kashem and then went to the house of accused-appellant No. 1 and in course of search, found Abu Taher in the midst of the field, groaning. This witness stated that Abu Taher on being asked stated that he had accompanied Abdul Kashem to the house of appellant No. 1 and that he (Abdul Kashem) had been killed by the appellants and Giyasuddin and Samsuddin. He denied the suggestion that he was informed by the wife of the deceased Abdul Kashem and that Abu Taher did not state before him that appellant No. 1, Rafiq and Giyasuddin had assaulted him. PW8 Abdul Khaleque testified that though he was in the group to search out the injured persons and had met Abu Taher in the middle of a field, on being asked he (Abu Taher) stated that he could not recognise the assailants. PW9 Ms. Jahura Khatoon, the wife of the deceased Abdul Kashem stated that at about 8 p.m. on the date of the occurrence, the accused-appellants and Giyasuddin had visited her house and they asked her husband to bring her second wife from her father's house. She stated that at about 3 a.m. in the next morning Abdul Hakim (PW3) came to her house and informed her that her husband had been killed and Abu Taher had been injured. She then went to the house of the appellant No. 1 and later on found her husband dead and Abu Taher injured. She stated that Abu Taher was taken to the Guwahati hospital for treatment where he died after three days. 10. PW10 Mufiz Ali stated that after the occurrence, he found Abu Taher in a 'nala'. He also stated about the location of Abdul Kashem in a nearby 'nala'. 11. She stated that Abu Taher was taken to the Guwahati hospital for treatment where he died after three days. 10. PW10 Mufiz Ali stated that after the occurrence, he found Abu Taher in a 'nala'. He also stated about the location of Abdul Kashem in a nearby 'nala'. 11. PW11 Idris Ali, the elder brother of Taher Ali though stated that he (Taher) was injured and had to be referred to Nagaon civil hospital for treatment, however, did not mention about any disclosure made by him (Taher) with regard to the involvement of the accused-appellants. 12. PW12 Mr. Gopeshwar Das is the police officer who prepared the inquest report on the dead body of the Abu Taher and proved it as Ext.6. PW13 Muzibar Rahman is another police officer who prepared the inquest report on the dead body of Abdul Kashem as Ext.1. He also proved the sketch map as Ext.8. This witness, however, with reference to the case diary in course of his cross-examination stated that PW2 did not state before him that on 16.6.1996 at about 2-30 a.m., he had gone to the place of occurrence on being informed by the wife of the deceased Abdul Kashem and that he met Abu Taher who reported to him about the occurrence. This witness also affirmed with reference to the case diary that PW7 Sekender Ali did not state before him that he was informed about the incident by Ms. Jahura Khatoon, wife of the deceased Abdul Kashem and that he thereafter went to the place of occurrence. The Investigating Officer deposed that PW7 had stated before him that he met Abu Taher, however, in an unconscious state. PW14 H. Ali is also a police officer who had submitted the charge sheet on the completion of the investigation. 13. Incriminating evidence against the accused-appellants, on marshalling the testimony of the prosecution witnesses, appear to have been presented only by PW2, PW3 and PW7. Though PW3 claims himself to have been injured in the occurrence, the prosecution for some inexplicable reason has not adduced any medical evidence in support thereof. His injuries, therefore, have remained unproved. He had asserted that the appellant No. 1 had plunged a lance/spear in his back. Rafiq had assaulted Abdul Kashem with same weapon and Omar pierced a lance in the chest of Taher. His injuries, therefore, have remained unproved. He had asserted that the appellant No. 1 had plunged a lance/spear in his back. Rafiq had assaulted Abdul Kashem with same weapon and Omar pierced a lance in the chest of Taher. It is, however, not clear from his deposition as to whether Rafiq mentioned by him is either appellant No. 4 or appellant No. 5. This witness noticeably, however, has not implicated the other accused-appellants in the assault. His testimony, therefore, pinpoints assault by the accused-appellant No. 3 on Abu Taher with a spear in his chest for which he eventually succumbed to the injuries sustained. The post mortem report relating to Abu Taher and the injuries mentioned therein appear to reinforce this version. Though the number of injuries detected on the body of Abu Taher is more than one, this per se does not render the involvement of the accused-appellant No. 3 unbelievable in the face of such clear and unambiguous statement on oath by PW3. The assault by the appellant No. 3 on Abu Taher with a spear in his chest, therefore, stands proved. This, however, does not permit a finding that the injury caused by the said isolated assault by the accused-appellant No. 3 had assuredly caused the death of Abu Taher. In absence of identification of either the appellant No. 4 or appellant No. 5 as the assailant of Abdul Kashem, in our estimate, they are entitled to a benefit of doubt. For want of any medical evidence to unmistakably prove the injuries sustained by PW3, we consider it unsafe to rely on his testimony to implicate the accused-appellant No. 1 in the assault. 14. We are left unconvinced by the plea of lack of identification of the accused-appellants. It is noticeable that an assembly had been convened on the consensus of the appellants in which others were also present. PW3 in his cress-examination revealed that at the time when meeting was in progress, none of the accused-appellants was equipped with any weapon. The origin of the brawl also has remained in obscurity. It is noticeable that an assembly had been convened on the consensus of the appellants in which others were also present. PW3 in his cress-examination revealed that at the time when meeting was in progress, none of the accused-appellants was equipped with any weapon. The origin of the brawl also has remained in obscurity. Having regard to the purpose for which the parties had assembled in the presence of independent persons of the locality and in absence of any evidence of any prior concert or pre-meditation of the accused-appellants suggesting their common object, we are of the view that section 149, IPC is not attracted on the facts of the instant case. Moreover, the evidence of the only eye witness (PW3) is grossly insufficient either to suggest such common object or to demonstrate the appellants individual acts of assault leading to the death of Abdul Kashem and Abu Taher except that of appellant No. 3. As stated above, the injuries of PW3 as well have remained unproved. 15. PW2 and PW7 have, in view of their significant omission to mention about the information of the occurrence received from the wife of the deceased Abdul Kashem, their visit to the place of occurrence and their interaction with Abu Taher render them untrustworthy. They having omitted to mention such vital facts to the Investigating Officer at the first instance, in our estimate, it would be unsafe to act on their testimony in support of the charge. More so, when the Investigating Officer did not record any dying declaration of Abu Taher, though he had remained under medical treatment for about 2/3 days after the incident. 16. In view of the above considerations, we are of the opinion that the charge under sections302/149/201, IPC against the accused-appellants has remained unproved. As alluded hereinabove, the factum of assault by accused-appellant No. 3 on Abu Taher is established. Considering the circumstances on which the meeting had been convened and was in progress, it is not unlikely that in course of the exchanges, the accused-appellant No. 3 on the spur of the moment had assaulted Abu Taher. The mention of a fight in course of the meeting is an indicator to that effect. In absence of any evidence of prior concert or pre-meditation amongst the accused-appellants, he (appellant No. 3), thus, has to suffer the consequences of his isolated act. The mention of a fight in course of the meeting is an indicator to that effect. In absence of any evidence of prior concert or pre-meditation amongst the accused-appellants, he (appellant No. 3), thus, has to suffer the consequences of his isolated act. To reiterate it is not clear that Abu Taher had died of the injury sustained from the only assault inflicted by the appellant No. 3. In that view of the matter, we are of the considered opinion that he can at best be convicted for the offence of grievous hurt under section 326, IPC by sharp cutting weapon. Ordered accordingly. 17. In conclusion, we, therefore, hold that charge against the accused-appellants under section302/149/201, IPC fails. The accused-appellant No. 3 is convicted under section 326, IPC and sentenced to suffer rigorous imprisonment for five years and fine of Rs. 1,000, in default, to undergo RI for another two months. The sentence undergone by him as on date would stand adjusted with the sentence so awarded. The accused-appellant Nos. 1, 2, 4 and 5 stand acquitted. The appeal, thus, is partly allowed. Appeal allowed.