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2011 DIGILAW 199 (GAU)

Masaraf Ali v. State of Assam

2011-03-09

A.K.GOSWAMI, AMITAVA ROY

body2011
Amitava Roy, J. - The Judgment and order dated 23.08.2006, passed by the learned Sessions Judge, Cachar, Silchar in Sessions Case No. 50/04. convicting the accused-appellant under Section 302/326 of the Indian Penal Code (for short hereafter referred to as the IPC) and sentencing him to suffer imprisonment for life and for 5 (five)years respectively and also to pay a fine of Rs. 100 for each of the offences, in default to undergo rigorous imprisonment for l(one) month constitutes the subject matter of challenge in the instant appeal. Both the sentences, as the impugned judgment and order would reveal were directed to run concurrently. 2. We have heard Mr. M. Nath, learned Amicus Curiae for the appellant in jail and Mr. Z Kamar, learned Public Prosecutor, Assam. 3. The prosecution case unfolds with the FIR dated 02.12.2003 lodged by one Hazi Abdul Khalique, the father of the deceased Chaya Begum with the officer-in-charge of the Dholai Police Station, alleging that on 30.11.2003 at about 8/8.30 p.m. the accused-appellant had assaulted his son, Razmul Hussain and daughter Minu Begum with an axe. The FIR further disclosed that the accused-appellant also attempted similarly to assault his wife, Chaya Begum with the same weapon, but could not succeed as the latter somehow took shelter in the house of her neighbours. The fact that, meanwhile the son of the accused-appellant Nazmul Hussain who had been with him was missing, was also referred to in the FIR. Dholai PS. Case No. 269/03 under Section 326 was registered, and on the completion of the investigation charge sheet was laid against the accused -appellant under Sections 323/326/302 and 201 of the IPC. After the case was committed to the Court of Sessions, charge was framed against the accused-appellant under the aforementioned provisions of law to which he pleaded "not guilty". 4. At the trial, the prosecution examined 13 witnesses, which included the doctors who had treated the injured and had conducted the post mortem examination of the deceased son Nazmul Hussain of the accused-appellant. The accused-appellant was, thereafter, examined under Section 313 of Cr.P.C. He, however, declined to adduce any evidence in defence. It is worthwhile to mention that in course of the investigation, the confessional statement of the accused-appellant had been recorded under Section 164 Cr.P.C. 5. A brief narration of the evidence on record is essential to better comprehend the rival submissions. The accused-appellant was, thereafter, examined under Section 313 of Cr.P.C. He, however, declined to adduce any evidence in defence. It is worthwhile to mention that in course of the investigation, the confessional statement of the accused-appellant had been recorded under Section 164 Cr.P.C. 5. A brief narration of the evidence on record is essential to better comprehend the rival submissions. PW 1, Hazi Abdul Khalique. the father-in-law of the accused-appellant and the informant is not an eye-witness. He. amongst others, proved the FIR as Ext. 1 and also the seizure of a dao vide Ext.2. He stated that the missing son of the accused appellant, Nazmul Hussain was recovered after 2/3 days, however, after the FIR was lodged. 6. The evidence of PW 2, Ainul Hoque is relevant only to the extent that the daughter. Minu Begum of the accused-appellant at the Silchar Medical College Hospital had reported that he (accused-appellant) had assaulted them. 7. PW 3, Musstt. Sayarun Nessa, the wife of the accused-appellant stated on oath that on the date of the incident at about 3.00 p.m., he (accused-appellant) along with their son, Nazmul Hussain had gone to the paddy field for collecting straw. When the accused-appellant returned home at about 8.00 p.m., she noticed blood stains on his legs. She, when asked the whereabouts of Nazmul Hussain, the accused-appellant disclosed that he had "finished" him. According to the witness, the accused-appellant then took out an axe from his house and attempted to assault her. While she ran for her life, he (accused-appellant) assaulted their three children in the house. The witness stated that when she returned home with others for rescue, she found the children lying with injuries. The injured were then referred to Dholai Primary Health Centre onto the Silchar Medical College Hospital. The witness stated about the recovery of the body of the deeased son Nazmul from the paddy field about a week after the date of occurrence. She proved the weapon of assault, the axe, material Ext. 1. 8. P W 4. Minara Begum, the daughter of the accused-appellant endorsed the statement of her mother. Musstt. Sayarun Nessa (PW 3) that on being asked by her, the accused-appellant stated to have killed his brother. Nazmul Hussain. She proved the weapon of assault, the axe, material Ext. 1. 8. P W 4. Minara Begum, the daughter of the accused-appellant endorsed the statement of her mother. Musstt. Sayarun Nessa (PW 3) that on being asked by her, the accused-appellant stated to have killed his brother. Nazmul Hussain. She also reiterated that thereafter, her father wanted to assault his mother who ran for shelter and that subsequent thereto he assulated her along with her siblings with an axe. She also confirmed about the recovery of the dead body of her brother Nazmul after a week of the date of occurrence. 9. PW 5, Aftab Uddin, a neighbour on oath stated that on the date of occurrence at about 6.00 p.m., he saw the accused-appellant with his son cutting straw (nera) in the paddy field. According to this witness, after returning home at about 8/8.30 p.m. on hearing hue and cry from the house of the accused-appellant, he went to the spot and found his three children lying on the ground with injuries on their person. 10. PW 6, Mojibur Rahman, the brother-in-law of the accused-appellant is a reported witness. He, however, claimed himself to be a witness to the seizure of the axe, vide Ext.3. The evidence of PW 7, 8 & 9 being of not much relevance is not dilated upon. 11. PW 10, Sri Udoy Sankar Gupta, the Investigating Officer, in the cross-examination, inter alia, stated that PW 4, Minara Begum had not stated before him that the accused-appellant had disclosed to her that Nazmul had been killed by him. The witness, however, proved the recovery of the dead body of the deceased from the paddy field. 12. PW 11, Dr. M. Talukdar stated about the injuries sustained by Nazmul Hussain and Smti. Minara Begum and proved the injury report vide Ex. 5 & 6. 13. PW 12, Rita Kar, who was at the relevant point of time, was the Judicial Magistrate, Silchar, proved the confessional statement of the accused-appellant. She narfated the steps taken by her before recording the same. 14. PW 13, Dr. B.C. Roy Medhi proved the following injuries found on the dead body :- "Injuries: - 1) Incised injury with firmly adherent blood clot at left shoulder joint causing complete separation and missing of upper limb on left side. Left scapula is exposed. There is antemortem blood clot found adherent. 14. PW 13, Dr. B.C. Roy Medhi proved the following injuries found on the dead body :- "Injuries: - 1) Incised injury with firmly adherent blood clot at left shoulder joint causing complete separation and missing of upper limb on left side. Left scapula is exposed. There is antemortem blood clot found adherent. 2) Incised wound of size 6x2x 1 cm. with firmly adherent blood clot on ventral aspect of upper end of right forearm. Membrain brain and organs of thorax and abdomen found decomposed." With reference to the post mortem report, Ext. 8, he opined that death was due to the injuries sustained, which were antemortem and homicidal in nature. 15. In cross-examination under Section 313 Cr.P.C., the accused-apellant, amongst others, admitted to have attempted to assault his wife, Sayarun Nessa and to have assaulted the children as stated by the prosecution witnesses. He answered as follows :- "Q. 2 : On or about 30.11.03 you committed murder of your son Nazmul Hussain and kept his dead body concealed in the paddy field. Ans.: May be a fact." He also admitted to have confessed his guilt and to have made a confessional statement as referred to by PW 12 and proved as Ext. 7. 16. Mr. Nath has urged without prejudice to the defence plea of denial to the charge that in view of the lapse of time in between, the challenge to the conviction of the accused appellant under Section 326 of the IPC is not being perused in this instant appeal at this stage. He, however, has insistently urged that as there is no evidence cognizable in law to establish the complicity of the accused-appellant in the offence of murder as alleged, the learned Court below had erred in law and on facts in convicting him (accused-appellant) therefor. According to Mr. Nath, the impugned judgment and order to that effect ought to be interfered with in the instant appeal. 17. Mr. Kamar, on the other hand, has urged that on a conjoint reading of the evidence of PW 3, Musstt. Sayarun Nessa, PW 4, Minara Begum, PW 5, Aftab Uddin and the statment of the accused-appellant under Section 313 Cr.P.C. as well as his confessional statement, it is more than apparent that he is the perpetrator of the offences in both the incidents, and that therefore, his conviction and sentence ought to be sustained. 18. Sayarun Nessa, PW 4, Minara Begum, PW 5, Aftab Uddin and the statment of the accused-appellant under Section 313 Cr.P.C. as well as his confessional statement, it is more than apparent that he is the perpetrator of the offences in both the incidents, and that therefore, his conviction and sentence ought to be sustained. 18. In view of the abandonment of the assailment of the conviction of the accused-appellant for the charge under Section 326 IPC, it is considered inessential to refer to the evidence in connection therewith. The confessional statement of the accused-appellant, Ext. 7 is also relatable thereto. We, therefore, refrain from making further observations thereon. 19. That on the date of the incident, during the day time, the accused-appellant had gone to the paddy field with his son, Nazmul Hussain (since deceased) is a fact established from the evidence of PW 3,4 & 5. His dead body was recovered after 2/3 days therefrom. The evidence of PW 3 and 4 establish that the accused-appellant on that day returned home late in the evening alone and on being asked by his wife (PW 3), he answered that he had "finished him" (Nazmul). P W 4 also stated to have seen blood stains on his loongi when he (accused-appellant) returned home in the evening. Though, the statement of this witness vis-a-vis the disclosure by the accused-appellant about the fate of the deceased does not inspire absolute confidence in view of her omission to state about the same before the Investigating Officer (as proved by the Investigating Officer, PW 10 with reference to his case diary), there is no reason to disbelieve the version of P W 3 to this effect. This assumes importance in view of the fact that the deceased was seen last together with the accused-appellant in the paddy field, whereafter, he had gone missing for several days before his recovery in a dead and mutilative state. The incriminating bearing of the statement of the accused-appellant as extracted hereinabove in course of his examination under Section 313 Cr.P.C., which otherwise, is admissible in law, also bolster the case of the prosecution vis-a-vis the charge of murder. 20. In the above view of the matter, we are of the view that the aforementioned evidence against the accused-appellant proves the charge of murder against him beyond all reasonable doubt. 20. In the above view of the matter, we are of the view that the aforementioned evidence against the accused-appellant proves the charge of murder against him beyond all reasonable doubt. The reasonings recorded by the learned Court below are persuasive and convincing and we are in respectful agreement therewith. In the result, the appeal fails. We part by recording our appreciation for Mr. Nath for his role as the Amicus Curiae in the instant appeal and as a token thereof, direct payment of his professional fee, which we quantify at Rs. 5000/-. The payment, as ordered, should be made forthwith.