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2011 DIGILAW 944 (GAU)

M. D. Moynuddin and anr v. State of Assam

2011-12-01

AMITAVA ROY, U.B.SAHA

body2011
Amitava Roy, J.— 1. The appellants seek redress against the judgment and order dated 26.10.2006 passed by the leaned Sessions Judge, Barpeta in Sessions Case No. 120/2004. Thereby they have been convicted under section 302/201/34, IPC and have been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000, in default, to suffer rigorous imprisonment for one year each for the offence under section 302, IPC. Following their conviction under section 201, IPC, they have been sentenced to undergo rigorous imprisonment for a period of three years with a fine of Rs. 500 each. Both the sentences were, however, ordered to run concurrently. 2. We have heard Mr. A Hai, learned counsel for the appellants and Mr. Z. Kamar, learned Public Prosecutor, Assam. 3. By the FIR dated 12.10.2003 lodged by one Muzibor Rahman, PW1, the Officer-in-charge of Kalgachia Police Out Post was informed that at about 4 p.m. on the previous day, i.e., 11.10.2003 his minor nephew Babul Ali had gone missing taking a cycle from home and that thereafter on the next day, i.e., 12.10.2003 at about 2 p.m. his dead body was found in the land of Wahed All at Mini Simla 'Char'. The informant in the FIR expressed his suspicion against the accused/appellants to be the culprits. That the cycle of the deceased was found near the reed beds of the house of Islam Ali was also mentioned. On the basis of the aforesaid FIR, Kalgachia Out post made GD Entry No. 197 dated 12.10.2003, whereafter, Sorbhog PS. Case No. 254/2003 under section 302/201/34, IPC was registered. Charge sheet was submitted on the completion of the investigation against the accused/appellants under the aforementioned sections of law. They having denied the charge when framed also under section 302/201/34, IPC, trial was conducted. The prosecution examined nine witnesses including the Investigating Officer and the doctor who had performed the post mortem on the dead body. The statements of both the accused/appellants were recorded thereafter under section 313, Cr.PC in course whereof they adopted the plea of total denial to the charge. They did not adduce any evidence in defence. Their conviction and sentence followed. 4. Mr. Hai has urged that there being no eye witness to the incident, the conviction of the accused/appellants is wholly based on suspicion and, therefore, ought to be set aside in the interest of justice. According to Mr. They did not adduce any evidence in defence. Their conviction and sentence followed. 4. Mr. Hai has urged that there being no eye witness to the incident, the conviction of the accused/appellants is wholly based on suspicion and, therefore, ought to be set aside in the interest of justice. According to Mr. Hai, the circumstantial evidence sought to be relied upon by the prosecution was not unimpeachable to rule out any possible hypothesis of innocence of the accused/appellants and, thus, the impugned judgment and order needs interference in the instant appeal. 5. Mr. Kamar, on the other hand, has argued that the evidence of PW1, PW2, PW5 and PW7 when read with that of PW6, the medical witness proves the prosecution case beyond all reasonable doubt and, therefore, the conviction and sentence of the accused/appellant ought not to be interfered with. 6. In the above setting it is necessary, in order to appropriately appreciate the arguments advanced, to briefly sketch the evidence on record. PW1. Muzibor Rahman, the informant stated that on the day previous to the date of occurrence there was a quarrel between the deceased and the accused/appellants pertaining to an immovable property. He deposed that on the date of the occurrence the mother of the deceased disclosed to him that he (deceased) had been called away by the accused/appellant Asgar from his house. As the deceased did not return, all of them searched for him and eventually detected his dead body near the house of the accused/appellant Mainuddin in the midst of a jungle. This witness also stated about the presence of the accused/appellants at the time of recovery of the dead body and that on seeing the party in search, they fled from the scene. In cross-examination, this witness stated that at that point of time, amongst others, Ismile Hussain, Abdul Hamid, Hussain All, Jakir Hussain, Amzad All and Samsul Haque were also present. 7. PW2, Abdul Hamid stated that he had heard that on the date of the occurrence the accused/appellant Asgar had called away the deceased from his house by stating that his (deceased) cow had damaged his (accused/appellant Asgar) cultivation. He claimed to be a member of the party which had gone out in search of deceased Babul. 7. PW2, Abdul Hamid stated that he had heard that on the date of the occurrence the accused/appellant Asgar had called away the deceased from his house by stating that his (deceased) cow had damaged his (accused/appellant Asgar) cultivation. He claimed to be a member of the party which had gone out in search of deceased Babul. The search continued in the night of the occurrence and on the next day the dead body of Babul was found near the house of accused/appellant Mainuddin. He reiterated that at that point of time the accused/appellants fled away from the scene. This witness in his cross-examination stated inter alia that the deceased and the accused/appellants were of equal age and were students. He also stated to have heard that on the day prior to the occurrence there was an altercation between the accused/appellant Asgar and the deceased. 8. PW3, Ismile Hussain deposed that the mother of the deceased on the date of the occurrence had come to his house in search for him and on seeing his (deceased) cycle thereat asked him to bring back the cycle to home, which he did. This witness stated that at about 9/9.30 in the morning of the next day the dead body of Babul was recovered and on hearing commotion from the site he reached there. He, however, candidly expressed that he was not aware as to who had killed Babul. 9. PW4, Hussain Ali, a neighbour of the deceased stated that in the evening of the date of occurrence the father of the deceased had come to him in search for his son. He stated that though search was conducted, the whereabouts of Babul were not traceable. The witness stated that in the next morning he heard hue and cry and on reaching the place from where the same had been coming, he found the dead body of Babul. He stated to have heard that as the cultivation of the accused/appellants had been damaged by the cattle of Babul they had quarrelled with the latter. 10. PW5, Abdul Baten is the father of the deceased. He stated that on his return from the market on the date of the occurrence he was informed by his wife (PW7) that their son had been called away from home by the accused/appellants and that thereafter he had not returned. 10. PW5, Abdul Baten is the father of the deceased. He stated that on his return from the market on the date of the occurrence he was informed by his wife (PW7) that their son had been called away from home by the accused/appellants and that thereafter he had not returned. The witness stated that though he along with others searched for Babul he was not to be found on that day and that on the next day from the midst of the jungle his dead body was recovered. This witness stated that at that point of time he saw the accused/appellants tying the dead body like a bundle and on seeing that sight he became senseless. In cross-examination, this witness stated that when he saw the accused/appellants tying the dead body there were other persons with him. He denied the suggestion that this fact had not been disclosed by him to the police in course of the investigation. 11. PW6, Dr. Tilok Pathak noticed the following injuries on the dead body: "A male body of 14 years, rigor mortis present. Eyes closed. Mouth slightly open, not decomposed. Both knee dislocated and fracture exposing the fracture bones outside. Muscles are lacerated. Multiple fracture on the right femur bone. Multiple fracture of the right humerous bone and radius and ulna. Muscles are lacerated. Ante-mortem blood clots found in and around injured tissues. All the injures are ante-mortem in nature. Ante-mortem blood clots were found in and around injured tissues." According to this witness, the injuries as above were caused by a blunt heavy force and were ante-mortem. He proved the post mortem report, Exhibit-3 and also stated that the death had occurred due to shock and haemorrhage as a result of the injuries sustained. This witness was not cross-examined. 12. PW7, Mustt. Firoja Khatoon, the mother of the deceased reiterated the evidence of her husband (PW5) in all essential particulars. Apart from mentioning that the cycle of her deceased son was found near the house of one Ismile (PW3), she testified that thereafter she along with her husband and others searched for Babul the whole night without any result. According to this witness, at about 9.30/10 in the next morning her husband (PW5) saw both the accused/appellants carrying something and that seeing that sight he (PW5) became unconscious. According to this witness, at about 9.30/10 in the next morning her husband (PW5) saw both the accused/appellants carrying something and that seeing that sight he (PW5) became unconscious. She also stated that the accused/appellants then ran away from the place, whereafter, village people apprehended accused/appellant Asgar and handed him over to the police. 13. The evidence of PW8, Amzad Ali is not of much relevance. PW9, Rejendra Mohan Singh, the Investigating Officer proved the FIR (Exhibit-1) as well as the inquest report (Exhibit-4). He also proved the seizure of the cycle of the deceased from his house vide Exbihit-2. Neither this witness was cross-examined on the material aspects of the incident and/or the charge, nor was he confronted with the omissions made by PW5 and PW7 in course of their statements recorded under section 161 Cr.PC. 14. We have carefully examined the materials on record and have as well analyzed the arguments advanced. Admittedly, there is no eye witness to the incident. Be that as it may, PW1, PW2, PW5 and PW7 have corroborated each other to the effect that on the previous day to that of the occurrence, there was a quarrel between the accused/appellants and the deceased in connection with some immovable property and that on the next day in the afternoon the accused/appellant Asgar Ali had called away the deceased from his home, whereafter, he did not return. The dead body was, on the next day of the occurrence, i.e., 13.10.2003, recovered from a jungle located adjacent to the house of the accused/appellant Mainuddin. These witnesses were members of the party who had gone in search of the deceased and have consistently deposed that when the dead body was recovered the accused/appellants were found present nearby and that they on seeing the search party fled from the scene. Though PW5 and PW7 have additionally stated that at the time of recovery of the dead body the accused/appellants were found handling the same trying to bundle it, PW1 and PW2 did not state about the same. The defence though while cross-examining PW5 had suggested that this piece of her testimony had not been mentioned before the police in her statement recorded under section 161 Cr.PC., it abstained from proving such omission on the basis of the Case Diary through the Investigating Officer. The defence though while cross-examining PW5 had suggested that this piece of her testimony had not been mentioned before the police in her statement recorded under section 161 Cr.PC., it abstained from proving such omission on the basis of the Case Diary through the Investigating Officer. This incriminating piece of evidence of PW5 and PW7 vis-a-vis the accused/appellants, therefore, has not been contradicted on the basis of the Case Diary and, thus, is available for this court for analysis and acceptance if found deserving. PW1 in particular had indicated presence, amongst others, of Ismile Hussain PW3; Abdul Hamid, PW2; Hussain Ali, PW4 and Amzad, PW8 at the time when the dead body was recovered. 15. The evidence of PW1, PW2, PW5 and PW7 taken together, in our view, demonstrates a continuous chain of circumstances unmistakably pointing towards the accused/appellants to be the persons involved in the offence with which they have been charged. Though the weapon of assault has not been recovered, the incriminating circumstances in succession, in our opinion, do not permit a conclusion in favour of the accused/appellants. 16. Having regard to the totality of the evidence on record as noticed hereinabove, we are of the unhesitant opinion that the impugned judgment and order does not warrant interference in the appeal. The same is upheld. 17. The appeal fails and is dismissed. _____________