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2012 DIGILAW 358 (GAU)

Insan Ali. (In Jail) v. State of Assam

2012-03-19

A.K.GOEL, C.R.SARMA

body2012
C.R. Sarma, J ;— [1] This appeal is directed against the judgment and order, dated 5.10.2005, passed by the learned Sessions Judge, Morigaon, in Sessions Case No.93/2004. By the impugned judgment and order aforesaid, the learned Sessions Judge convicted the appellant under Sections 302 of the Indian Penal Code ( for short ‘IPC’), and sentenced him to suffer rigorous imprisonment for life and pay fine of Rs. 10,000/-, in default, suffer rigorous imprisonment for another period of five years for his conviction under section 302 IPC. Aggrieved, by the said judgment and order, the convicted person, as appellant, has come up with this appeal. [2] We have heard Mr R.K. Adhikari, learned Amicus Curiae, appearing for the appellant and Mr D.Das, learned Addl. Public Prosecutor, appearing for the State respondent. [3] The prosecution case, in brief, is that, on 17.6.2001, Md Bablu Sheikh @ Hekim ( hereafter called as the ‘deceased’), along with others, visited the house of the daughter of Md. Baga Sheikh i.e. maternal uncle of the deceased. When the deceased, along with other relatives was returning from the house of the daughter of Md. Baga Sheikh, the appellant along with Mr. Sayedur Rahman, Mr. Medel Sheikh, Mr. Samsul Haque and Mr. Jaharuddin intercepted the deceased, on the road, and the appellant gave blow on the stomach of the deceased with a dagger, as a result of which the deceased succumbed to the injuries aforesaid. Md Ayubuddin Ahmed(PW 1), on the date of the occurrence, lodged information with the police and the same was entered as GD Entry (Ext.4). Subsequently, on 18.6.2001, the informant lodged a written FIR with the police. During the course of investigation, police visited the place of occurrence, collected the evidence, prepared the inquest report and forwarded the dead body for postmortem examination. At the close of the investigation, police submitted the charge-sheet under sections 302/34 IPC. The learned Chief Judicial Magistrate, Morigaon committed the case to the Court of Sessions. Accordingly, the learned Sessions Judge framed charge against the appellant, under section 302 IPC. The charge was read over and explained to the appellant, to which he pleaded not guilty. [4] In order to prove their case, prosecution examined, as many as 13 witnesses, including the Medical Officer (PW 12), who performed the autopsy and the Investigating Officer (PW 13). Accordingly, the learned Sessions Judge framed charge against the appellant, under section 302 IPC. The charge was read over and explained to the appellant, to which he pleaded not guilty. [4] In order to prove their case, prosecution examined, as many as 13 witnesses, including the Medical Officer (PW 12), who performed the autopsy and the Investigating Officer (PW 13). At the close of the examination of the prosecution witnesses, the accused person was examined, under section 313 Cr.P.C. He denied the allegations, brought against him and declined to adduce defence evidence. [5] Md Sumsuddin, S.I. of Police was examined as Court witness No.1 in connection with the execution of P & A and warrant of arrest. [6] Considering the evidence on record, the learned Sessions Judge convicted and sentenced the appellant under section 302 IPC as indicated above. [7] Mr R.K. Adhikari, learned Amicus Curiae, has submitted that, except the evidence of eye witness i.e. PW 2, there is no other substantive evidence in support of the prosecution case and as such, the learned trial Judge committed error by convicting the appellant on the basis of the uncorroborated evidence of PW 2. It is also submitted that, the prosecution failed to establish that the appellant had any intention to cause the death of the deceased and as such, the conviction under section 302 IPC, cannot be maintained. [8] The learned Addl. Public Prosecutor, referring to the evidence on record, more particularly, the evidence of PW 2 and PW 5, has submitted that there is sufficient corroboration in the evidence of eye witnesses, i.e. PW 2 and PW 5 indicating the guilt of the appellant. The learned Addl. Public Prosecutor has also submitted that the unimpeachable evidence given by PW 1, PW 2 and PW 5 aforesaid, conclusively lead to the findings that, none other than, the appellant had caused the death of the deceased and as such, the learned Sessions Judge rightly convicted and sentenced the appellant. [9] Having heard the learned counsel for both the parties and carefully perusing the evidence on record, we find that the prosecution case is based on the direct evidence of the sole eye witness i.e. PW 2 and the dying declaration alleged to be made before PW 1 and PW 5. [9] Having heard the learned counsel for both the parties and carefully perusing the evidence on record, we find that the prosecution case is based on the direct evidence of the sole eye witness i.e. PW 2 and the dying declaration alleged to be made before PW 1 and PW 5. [10] Law is well settled that, dying declaration, being a material disclosure, made at the last moment of the life of a person can be basis for conviction, if the same is found to be made before a reliable person, who does not have adverse interest against the accused person. Law is also well settled that, to rely on the dying declaration, made by a person, it must be established that the maker of the dying declaration, at the relevant time, was in a fit condition, both physically and mentally to correctly disclose the involvement and identity of the miscreant. [11] In the present case, Mr Ayubuddin Ahmed, deposing as PW 1, has stated that, on being asked by him about the incident, the deceased had told him that the appellant had assaulted him with a knife. PW 1 has also stated that, he noticed bleeding from the stomach of the deceased. He further stated that, immediately after the occurrence, a vehicle was arranged and the deceased was shifted to the hospital, but he succumbed to the injuries. This witness was the informant. He exhibited the FIR, lodged by him, as Ext. No.1. He further stated that, the deceased, prior to the occurrence, accompanied by others, had visited the house of Giasuddin, who was his (PW 1) younger brother-in-law. He further stated that, hearing hue and cry, he came out from the house and found the deceased in injured condition. In his cross examination, this witness admitted that, earlier, the appellant was caught in connection with a theft case. He denied the suggestion that, the deceased had earlier assaulted the appellant and threatened to remove his eyes. From the evidence of this witness, it is further found that the occurrence took place by the side of the PWD road and there were a rice mill, one pharmacy and one grocery shop of Saidur Rahman, near the place of occurrence. He denied the suggestion that the appellant did not tell him that the deceased had assaulted him. From the evidence of this witness, it is further found that the occurrence took place by the side of the PWD road and there were a rice mill, one pharmacy and one grocery shop of Saidur Rahman, near the place of occurrence. He denied the suggestion that the appellant did not tell him that the deceased had assaulted him. Though, this witness was subjected to cross examination, no discrepancy or contradiction could be elicited to rule out his presence, immediately after the occurrence and his meeting with the deceased. Therefore, there is reason to believe that this witness met the deceased, immediately after the occurrence and that the deceased had made the dying declaration before him. The fact that the appellant was earlier caught in connection with a theft case cannot be sufficient reason to believe that PW 1 had any grudge or adverse interest against the appellant to falsely implicate him leaving the actual culprit. Therefore, the evidence, given by PW 1, regarding dying declaration is found to be reliable and trustworthy. [12] Mr Bogai Ali, deposing as PW 5, stated that, he was also present in the house of Giasuddin at the relevant time and he found the deceased in injured condition. He further stated that, on being asked, the deceased told him that the appellant had assaulted him. According to this witness, after the said disclosure, the deceased had fallen down and he succumbed to the injuries. Though, this witness was cross examined, on behalf of the defence, no discrepancy or contradiction could be elicited. Even no suggestion was put to this witness denying his evidence regarding dying declaration aforesaid. There is nothing to show that this witness had any reason to falsely implicate the appellant. Therefore, the evidence of PW 5 with regard to dying declaration is found to be believable. That apart, we find sufficient corroboration in the evidence of PW 1 and PW 5 in favour of the dying declaration. From the evidence of the said two witnesses, it is found that, immediately after the assault by the appellant, the deceased rushed to the house of Giasuddin and he disclosed before PW 1 and PW 5 that the appellant had assaulted him. There is no cross examination regarding the physical and mental state of the appellant to show that the deceased was not in fit condition to make dying declaration. There is no cross examination regarding the physical and mental state of the appellant to show that the deceased was not in fit condition to make dying declaration. Therefore, in absence of anything contrary, we find no reason to disbelieve the evidence of PW 1 and PW 5 regarding dying declaration aforesaid. [13] Md Khursid Alam Khan, who deposed as PW 2, is the eye witness. He stated that, at the time of occurrence he was with the deceased. According to this witness, he along with the deceased and one Montu, after taking tea in the house of Giasuddin Ahmed went to smoke cigarette and that, he had purchased cigarette from a shop. According to this witness, after purchasing cigarette, when he, along with the deceased, was waiting for Mr. Ramjan, the appellant gave a blow on the stomach of the deceased with a knife and out of fear, he (PW -2) rushed to the house of Giasuddin and informed the persons, present there. He further stated that the deceased also, with the injury aforesaid, rushed into pendel i.e. house of Giasuddin. According to this witness, the deceased was shifted to Gauhati Medical College Hospital, wherein he expired. In his cross examination, this witness stated that, he heard that the appellant had enmity with the deceased regarding theft of a bullock. From the above, we find corroboration in the evidence of PW 1, PW 2 and PW 5 regarding return of the deceased, to the house of Giasuddin, with injury in his stomach. This witness was duly cross examined, on behalf of the defence, but no contradiction could be elicited to demolish his evidence aforesaid. [14] From the cross examination of PW 1, it has been revealed that the appellant was caught in connection with the theft of bullock. Suggestion was made to PW 1, on behalf of the defence, that the deceased also assaulted the appellant in connection with the theft aforesaid. In view of the above, we find sufficient force to believe that the appellant had enmity with the deceased and this probably prompted the appellant to assault the deceased. Hence, the motive behind the said attack has also been established. In view of the above, we find sufficient force to believe that the appellant had enmity with the deceased and this probably prompted the appellant to assault the deceased. Hence, the motive behind the said attack has also been established. [15] According to PW 2, Sri Mintu Ali (PW 3) was also present at the time of occurrence, but PW 3, in his evidence, stated that, he was behind the shop and as such could not see the occurrence. He admitted that he tied a napkin in the injury, sustained by the deceased. Though PW 3 denied to have seen the occurrence himself, from the above evidence, it is clearly found that he along with PW 2 and the deceased went to the shop and that the deceased returned to the house of Giassudin after sustaining injury in his stomach. Therefore, we find sufficient corroboration in the evidence of PW 2 that, he along with the deceased went to the shop for purchasing cigarette and that the deceased sustained injury near the said shop. [16] PW 4, Miss Rakima Begum, was the shop keeper from whom PW 2 had purchased cigarette. She stated that, on the fateful day, three young persons went to her shop for purchasing cigarette and that the deceased had given a note of Rs.50/-. According to this witness, as she had no change, she went to the pharmacy to get change and before she could return to her shop, the incident had already taken place. She stated that she came to know that the deceased was assaulted. This witness was declared hostile and cross examined on behalf of the prosecution. But from her cross examination, no incriminating evidence could be elicited. However, her evidence supports the evidence of PW 2 to the effect that he along with the deceased went to the shop for purchasing cigarette and that the occurrence took place near the said shop. [17] Smti. Sahida Begum, who deposed as PW 6, stated that, she heard that the appellant had assaulted a man from Dandua. Though she was declared hostile and cross examined by the prosecution, no incriminating evidence could be elicited against the appellant. In her cross examination made by the prosecution, this witness admitted that, she had told the police that, she saw the appellant running away with a blood stained dagger and the injured running towards the house of Giasuddin. Though she was declared hostile and cross examined by the prosecution, no incriminating evidence could be elicited against the appellant. In her cross examination made by the prosecution, this witness admitted that, she had told the police that, she saw the appellant running away with a blood stained dagger and the injured running towards the house of Giasuddin. In her cross examination, made on behalf of the defence, she stated that, after the occurrence, she went to the house of Giasuddin. From her said evidence, it is found that, in her earlier statement, made before the Investigating Officer, she stated that she had seen the accused running away with a blood stained dagger. From the above evidence, given by PW 6, sufficient corroboration can be drawn in favour of the evidence of the eye witness i.e. PW 2 that the appellant had caused the injury. [18] Md Habibullah (PW 7) stated about the seizure of the dagger from the house of the appellant, on 15.9.01 i.e. after about three months from the occurrence. He stated that the O/C had told him that the dagger was recovered from the house of the appellant. From the above evidence, it is found that the recovery was already made by the O/C. Therefore, his evidence does not fortify the prosecution version that the dagger was recovered from the possession of the appellant. However, non recovery of incriminating weapon itself cannot be fatal for the prosecution, provided the involvement of the accused is established by cogent, reliable and substantive evidence. [19] Srikanta Deka (PW 8) stated that, he heard that the appellant had murdered the deceased. According to this witness, after the occurrence, the appellant had absconded and he was arrested by police after about 3-4 months. He further stated that,he was present when the appellant had produced a dagger from the roof of his house and he was a witness to the seizure of the said dagger. Ext. 2 is the seizure list and Ext.2(2) is his signature. Though, the said dagger was seized by police, no forensic evidence has been produced to substantiate that the same was used as the incriminating weapon. Therefore, seizure of dagger, does not per se indicate that the same was used by the appellant in committing the offence. [20] PWs 9,10,11 and 13 were the Investigating Officers, who investigated into the matter at different points of time. Therefore, seizure of dagger, does not per se indicate that the same was used by the appellant in committing the offence. [20] PWs 9,10,11 and 13 were the Investigating Officers, who investigated into the matter at different points of time. According to PW 9, he initially visited the place of occurrence, prepared the sketch map (Ext.3) and examined the witnesses. He also exhibited the GD Entry, recorded by the O/C, as Ext.4. [21] Sri Debendra nath Barman, who was the Officer-in-Charge of Mikirbhata Police Station, wherein the FIR was lodged. He exhibited the said FIR lodged by PW 1. [22] Mr Purna Kr Deka, Inspector of Police deposed as PW 11. He stated that, he received the case diary after completion of the investigation and arrested the appellant from Dimapur. He further stated that, on being produced by the appellant, he seized a dagger from the house of the appellant in presence of witnesses. He exhibited the dagger as Ext. No.2. According to this witness, S.I. Samsuddin submitted the charge-sheet but S.I. Samsuddin has not been examined by the prosecution. [23] Dr Amor Jyoti Patowari, who performed the postmortem examination in respect of the dead body, deposed as PW 12. According to PW 12, the deceased was aged about 22 years. He found the following injuries : “1. One penetrating injury in the front of abdomen of size 5.5 cm x 2 cm x abdomen cavity deep, triangle in sharp situated 6 cm to right of midline and 1 cm below into costal margin.” According to Medical Officer, he also found one penetrating injury in the liver, one penetrating injury in the interior surface on the right side measuring 5 cm x 3 cm x 10 cm. The said Medical Officer opined that the death of the deceased was caused due to hemorrhage and shock as a result of the injury in the abdomen, which was ente mortem and caused by sharp cutting( single edged) pointed weapon and homicidal in nature. The Medical Officer exhibited the postmortem report as Ext. No.5. The cross examination of the said Medical Officer was declined by the defence. [24] In view of the above, the evidence given by the said Medical Officer remained un-demolished. Therefore, it is clearly found that the deceased died due to the said injuries, sustained by him. The Medical Officer exhibited the postmortem report as Ext. No.5. The cross examination of the said Medical Officer was declined by the defence. [24] In view of the above, the evidence given by the said Medical Officer remained un-demolished. Therefore, it is clearly found that the deceased died due to the said injuries, sustained by him. As revealed from the evidence, on record, there is no dispute that the deceased died on 17.6.01. From the evidence of PW 2 (one of the eye witness) it is found that on 17.6.01 at about 8 pm he received a message that the deceased died at Guwahati, while undergoing treatment in Gauhati Medical College Hospital. [25] PW 1, i.e. the informant also stated that the deceased was sent for medial treatment to Gauhati Medical College Hospital and that he succumbed to the injury on the same evening. In view of the said evidence, revealed by the prosecution witnesses, there is no dispute that the deceased died due to injuries, sustained by him in his stomach. Now the question is who had caused the said injury. The prosecution version is that the appellant had given the said fatal blows on the deceased. [26] Considering the entire aspects of the matter, it is found that, on the date of the occurrence, the appellant, along with others, had visited the house of Mr Giasuddin Ahmed and after taking tea, he along with PW 2 and PW 3, went to the shop of PW 4 for taking cigarette. The occurrence took place near the said cigarette shop. Immediately after the occurrence, the deceased rushed to the house of Giasuddin, in injured condition and disclosed before PW 2 and PW 5 that the appellant had assaulted him.PW 2 was the eye witness to the occurrence. He clearly saw the appellant giving the fatal blow on the stomach of the deceased with a knife. [27] PW 6, at the earliest opportunity, informed the police stating that she had seen the appellant running away with a blood stained dagger and the deceased rushing to the house of Mr. Giasuddin. The said evidence regarding running away of the appellant from the place of occurrence with a blood stained dagger and rushing of the deceased, with injury to the house of Mr. Giasuddin forcefully suggests involvement of the appellant with the injury sustained by the deceased. Giasuddin. The said evidence regarding running away of the appellant from the place of occurrence with a blood stained dagger and rushing of the deceased, with injury to the house of Mr. Giasuddin forcefully suggests involvement of the appellant with the injury sustained by the deceased. As opined by the Medical Officer (PW-12), the injury was caused by a sharp cutting weapon. It has been noticed, as indicated above that there was enmity between the appellant and the deceased regarding the incident of cow theft. The deceased, who was shifted to the Medical College hospital, succumbed to the injuries on the same day. According to Medical evidence, injury sustained by the deceased, on his stomach was the cause of his death. The above discussed circumstantial evidence, which have surfaced from the evidence, adduced by the prosecution, form a complete chain of events pointing the guilt to the appellant. The said circumstantial evidence supports and fortifies the direct evidence given by PW 2. Taking cumulative value of the said circumstantial evidence as well as the direct evidence, on record, we have no hesitation in concluding that, none other, than the appellant had caused the fatal blow resulting the death of the deceased. [28] There is nothing, on record, to show that the appellant, at the time of occurrence, was either provoked by the deceased, in any manner or he had caused injury in a heat of passion out of a sudden quarrel or fight. From the record, it appears that the deceased along with PW 2 and others went to the shop for taking cigarette and the appellant, finding the deceased therein, inflicted the fatal blows on his stomach with a knife. In view of the said circumstance and in the absence of any compelling circumstances, the said assault appears to be made intentionally with a view to cause the death or to cause such bodily injury as is likely to cause the death. Admittedly, the said fatal injury caused the death of the deceased. The act done by the appellant does not fall under any of exceptions, prescribed by section 300 Cr.P.C. Therefore, the culpable homicide caused by the appellant amounted to murder and as such, he has rightly held guilty of the offence under section 302 IPC. Admittedly, the said fatal injury caused the death of the deceased. The act done by the appellant does not fall under any of exceptions, prescribed by section 300 Cr.P.C. Therefore, the culpable homicide caused by the appellant amounted to murder and as such, he has rightly held guilty of the offence under section 302 IPC. [29] In view of the above discussion, we find that the learned Sessions Judge committed no error by recording the conviction and sentence under section 302 IPC. Therefore, we find no merit in this appeal requiring interference. Accordingly, the appeal fails. Return the LCR. [30] For the sake of brevity, without repeating the discussions made in the Criminal Appeal No.93(J)/2005 (disposed of on 22.12.2011), with regard to the victim compensation, as provided by Section 357 A I.P.C, we make the following directions : (1) As an interim relief, and without prejudice to the right of the dependants of the victim to claim higher amount, an amount of Rs.50,000/- be deposited by the State Government with the District Legal Services Authority of Morigaon District within a period of two months from this date. The District Legal Services Authority, on receipt of the said money, shall make an enquiry to ascertain as to whether, there is dependant(s), who suffered loss and injury as a result of death of the deceased and also if such dependent(s) or legal representative(s) need any rehabilitation.” (2) Upon such enquiry, if it is found that the dependent(s), if any, need rehabilitation, then the District Legal Services Authority shall initially release the said interim amount and thereafter direct payment of adequate compensation, as may be prescribed by the scheme to be prepared by the State Government. It is made clear that if the District Legal Services Authority, after due enquiry, arrive at the findings that there is no dependent(s) or that the dependent(s) of the deceased/victim does not require any rehabilitation, then the District Legal Services Authority, shall refund the said amount of Rs.50,000/-, without delay, in favour of the State Government. [31] Let a copy of this judgment and order be furnished to the Chief Secretary to the Government of Assam, for doing the needful. [32] We record our appreciation for the services, rendered by Sri R.K. Adhikari, as Amicus Curiae and direct that an amount of Rs. 5,000/- be paid to him as remuneration by the State Legal Services Authority. _____________