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2012 DIGILAW 400 (GAU)

Ainul Haque Laskar @ Katai v. State of Assam

2012-03-27

A.K.GOEL, C.R.SARMA

body2012
1. This appeal is directed against the judgment and order, dated 4/5/2005, passed by the learned Sessions Judge, Hailakandi, in Sessions Case No. 87/2003. By the impugned judgment and order, the learned Sessions Judge, held the appellant guilty of the offence under section 302 Indian Penal Code (hereinafter for short referred to as the IPC) and sentenced him to suffer rigorous imprisonment for life and pay a fine of Rs. 2000/-, in default suffer rigorous imprisonment for another period of three months Aggrieved by the said conviction and sentence, the convict, as appellant, has come up with this appeal. 2. We have heard Ms. D Buragohain, learned Amicus Curiae appearing for the appellant and Mr. K. Mazumdar, learned Additional Public Prosecutor, for the State of Assam. 3. The prosecution case, as revealed at the trial, is that, on 17/8/2003 at about 7.15 P.M., the appellant assaulted his father, Monir Ali (herein after called the deceased) in his house with a dao, as a result of which the deceased succumbed to the injuries. Hearing hue and cry, Mustt. Khairan Nessa Begum, (PW1) daughter of the deceased and Mustt. Alachun Nessa (PW2), daughter-in-law of the deceased rushed to the place, of occurrence and saw the appellant inflicting the dao blows on the deceased. After commiting the said crime, the appellant fled the place with the dao. Md. Abdul Latif Laskar (PW3), son of the deceased, on his arrival from the market, on the same evening, found the deceased lying in injured condition. He was informed by his wife Mustt. Alasun Nessa (PW2) and his sister Khairan Nessa (PW1) about the incident. Accordingly, he lodged an FIR (Exhibit 1), with the Police which was registered as Hailakandi PS Case No. 231/03 under section 302 IPC. After receipt of the said FIR, Police launched investigation into the matter, visited the place of occurrence, prepared a sketch map of the place of occurrence, examined the witnesses, sent the dead body for post mortem examination, arrested the accused person and seized one dao, at the instance of the appellant. At the close of investigation, Police submitted charge sheet, under section 302 IPC against the appellant. The offence being exclusively triable by the Court of Sessions, the learned Judicial Magistrate, First Class, Hailakandi, committed the case to the Court of Sessions. The learned Sessions Judge framed charge under section 302 IPC. At the close of investigation, Police submitted charge sheet, under section 302 IPC against the appellant. The offence being exclusively triable by the Court of Sessions, the learned Judicial Magistrate, First Class, Hailakandi, committed the case to the Court of Sessions. The learned Sessions Judge framed charge under section 302 IPC. The charge was read over and explained to the appellant, to which he pleaded not guilty and claimed to be tried. 4. In order to prove their case, prosecution examined, as many as, eight witnesses, including the Medical Officer (PW6), who performed the post mortem examination and the Investigating Officer (PW8). At the close of the evidence for the prosecution, the accused person was examined under section 313 Cr.P.C. He denied the allegations, levelled against him. Considering the evidence on record, the learned Sessions Judge, held the appellant guilty of the offence, under section 302 IPC and accordingly convicted and sentenced him, as indicated above. 5. Ms. Buragohain, learned amicus curiae, taking us through the evidence, on record, has submitted that the prosecution failed to prove the charge, beyond all reasonable doubt and that the learned Sessions Judge committed error by recording the conviction and sentence without sufficient, cogent and reliable evidence. Mr. Mazumdar, learned Additional Public Prosecutor, in reply, has submitted that the eye witnesses i.e. PW1 and PW2 have categorically stated that they had seen the occurrence and that there is nothing to disbelieve their evidence regarding involvement of the appellant. The learned Additional Public Prosecutor has also submitted that the recovery of the dao, on being led by the accused person and the circumstantial evidence that the accused and the deceased, along with PW1 and PW2, were living in the same premises and the ocular evidence given by PW1 and PW2, who saw the accused committing the offence, sufficiently lent corroboration in favour of the prosecution version. The learned Additional Public Prosecutor, supporting the conviction and sentence aforesaid, has submitted that the learned Trial Judge committed no error by holding the appellant guilty of the offence, under section 302 IPC and as such the impugned conviction and sentence do not warrant any interference. 6. The prosecution case is based on the testimonies of PW1 and PW2, who were the eye witnesses to the occurrence. PW1 is the daughter and PW2 is the daughter-in-law of the deceased. 6. The prosecution case is based on the testimonies of PW1 and PW2, who were the eye witnesses to the occurrence. PW1 is the daughter and PW2 is the daughter-in-law of the deceased. As revealed from the evidence on record, the appellant, the deceased and the said witnesses were present in their house, at the time of occurrence. Another son of the deceased i.e. PW3 was not present at the time of the incident. After his return from the market, at about 7.15 P.M., he found the deceased in injured condition, in their court yard. He was informed by PW1 and PW2 that the deceased was assaulted by the appellant, who was also one of the sons of the deceased, with a dao. According to PW3, the occurrence took place due to a quarrel that took place between the deceased and the appellant regarding occupation of the big room situated in the middle of their house. 7. PW3 lodged the FIR, which he exhibited as Exhibit No. 1. According to PW3, on being telephonically informed by Mr. Kutubuddin, Police visited the place of occurrence. In the FIR, lodged by PW3, it has been mentioned that he was informed by PW1 and PW2 about the incident. The GD Entry No. 481, dated 17/8/2003, which has been exhibited as Exhibit-6, supports PW3’s contention that Kutubuddin had informed the Police. The Investigating Officer (PW7), supporting the evidence of PW3, stated that he visited the place of occurrence, on 17/8/2003 and sent the dead body for post mortem examination. 8. Md. Rafiqueuddin Laskar, who deposed as PW4 stated, that, on 17/8/2003, at about 7.15 P.M., hearing hue and cry, he rushed to the house of the deceased and found him lying dead in the courtyard with bleeding injuries. He stated that he saw cut injuries on the head and neck and that the brain material had come out. He further stated that PW1 and PW2 had informed him that the appellant had assaulted the deceased. Though this witness was duly cross-examined, on behalf of the defence, his evidence that he was reported by PW1 and PW2, on the date of occurrence itself, remained undemolished. The evidence of PW3 that he came to know about the involvement of the appellant from PW1 and PW2 also stood uncontroverted. 9. Dr. K.L. Choudhury, who performed the autopsy, deposed as PW6. He found the following injuries:- 1. The evidence of PW3 that he came to know about the involvement of the appellant from PW1 and PW2 also stood uncontroverted. 9. Dr. K.L. Choudhury, who performed the autopsy, deposed as PW6. He found the following injuries:- 1. One incised wound of size 11.2 cm x 5 cm x 8.3 cm running anterior postirally and horizontally across the left side of the face cutting the left ear in its middle cutting the bones beneath and the anterior and in 5.3 cm above and posterior to the left angle of the mouth and the posterior end in 2 cm, posterior to the left mastoid process. 2. One incised wound of size 16.2 x 5.3 cm x 6.6 cm running anterior postality and horizontally across left side of the head. The anterior end of the wound is 3.4 cm above the outer end of the left eyebrow. 3. One incised wound of size 6.4 cm x 2 cm x 0.7 cm running anterior-posteriorly and horizontally across the middle of the leg. 4. One incised wound of size 18.4 cm x 5.2 cm x 10 cm was seen running horizontally across the upper part of the occipital region of the head. 5. One incised wound of size 13.4 cm x 3.2 cm x 6.6 cm was seen running horizontally on the occipital region of the head 1.6 cm below the injury No. 4. 6. One incised wound of size 14.6 cm x 5.3 cm x 6.7 cm was seen running parallel to the wound No. 2 and 2 cm below the wound No. 5 and 1.9 cm above the hair line on the back of the head. The internal and external corrolisi arteries of the left side, the middle maninginal arteries, vertebral arteries are cut and severed. The left transverse sinens and veins are also cut.” The Medical Officer opined that the injuries were ante mortem in nature and caused by massive blows with sharp weapon. He also opined that the cause of death was haemorrhage due to massive brain destruction caused by the injuries. From the Medical Evidence, it stood established that the deceased died due to the multiple injuries, caused by sharp cutting weapon. All the prosecution witnesses i.e. PW1, PW2, PW3, PW4 clearly stated that the deceased succumbed to the injuries sustained by him, on 17/8/2003, in the evening in his house. 10. Mustt. From the Medical Evidence, it stood established that the deceased died due to the multiple injuries, caused by sharp cutting weapon. All the prosecution witnesses i.e. PW1, PW2, PW3, PW4 clearly stated that the deceased succumbed to the injuries sustained by him, on 17/8/2003, in the evening in his house. 10. Mustt. Khairam Nessa Begum (PW1) i.e. the daughter of the deceased stated that, at the relevant time, she was in the kitchen and PW2 was inside the house. According to PW1, hearing hue and cry, she came out, opening the door and saw the appellant inflicting dao blows on the neck and head of their father i.e. the deceased. She also stated that, as she raised hue and cry, the appellant had ran away towards the East. Though this witness was cross-examined, on behalf of the defence, no material contradiction could be elicited to render her evidence disbelievable. She denied the suggestions, put to her, that she did not state before the Police that, at the time of the incident, she was in the kitchen and that hearing the alarm, she came out and saw the accused hacking their father with a dao. She also denied the suggestion that, on the date of occurrence, she did not visit her parent’s house and that she was in her husband’s house. The said omissions were not proved through the Investigating Officer. That apart, in our considered opinion, those were, at best, omissions and cannot be treated as contradiction on material point. 11. Supporting the evidence of PW1, Musstt. Alasun Nessa Begum, deposing as PW2, stated PW1 had come to their house from her husband’s house and that on the date of occurrence, she was present in their house. She, in tune with the evidence of PW1 stated that when she was teaching her children, hearing cry, in the courtyard, came out and saw the appellant giving dao blows on the neck and head of the deceased. She also stated that she had a torchlight in her hand and she could identify the appellant in the focus of the said torchlight. Corroborating the evidence of PW3, she stated that she informed PW3 and others about the incident. She denied the suggestion that PW1 did not visit their house and that she did not see the accused in the focus of the torchlight. Corroborating the evidence of PW3, she stated that she informed PW3 and others about the incident. She denied the suggestion that PW1 did not visit their house and that she did not see the accused in the focus of the torchlight. Both PW3 and PW4 clearly stated that, upon their arrival in the place of occurrence, PW1 and PW2 had informed them that the appellant had assaulted the deceased with a dao. The said evidence given by PW1, PW2, PW3 and PW4 remained undemolished. Therefore, it is clearly found that both PW1 and PW2 saw the occurrence and they had informed the PW3 and PW4 about the incident, immediately after the occurrence. The evidence of PW1 and PW2 that they had seen the appellant, inflicting the dao blows, on the deceased, remained undemolished and uncontroverted. 12. From the record, it appears that PW1, PW2 and PW3, the appellant and the deceased belonged to the same family. There is nothing, on record, to show that PW1, PW2 and PW3 had any adverse interest or grouse to falsely implicate the appellant, who was their brother. Therefore, we find no reason not to accept the uncontroverted evidence given, by the said two eyewitnesses, i.e. PW1 and PW2. The evidence given by the said witnesses, reveals sufficient corroboration, on material point, inspiring confidence that the appellant had inflicted the fatal blows. 13. The Investigating Officer, deposing as PW7 stated that the incriminating dao was recovered, on being led by the appellant. He has exhibited the seizure list (Exhibit-2) by which the said dao was seized. He has also exhibited the dao as material Exhibit No. 1. According to the Investigating Officer, the dao was kept hidden in the compound of one Rahimuddin and the appellant had led to the discovery of the dao. PW5, Abdul Rahim, who was a witness to the said seizure, stated that the accused, who was brought by the Police had produced the dao by taking it out of the jungle, in the compound of Rahim Seikh. Thus, PW5 has corroborated the evidence of the Investigating Officer (PW7) that the dao was recovered, on being led to the discovery by the appellant. Though the dao has been claimed to be recovered at the instance of the appellant, there is nothing on record to show that the said dao was used by the appellant as the incriminating weapon. Thus, PW5 has corroborated the evidence of the Investigating Officer (PW7) that the dao was recovered, on being led to the discovery by the appellant. Though the dao has been claimed to be recovered at the instance of the appellant, there is nothing on record to show that the said dao was used by the appellant as the incriminating weapon. No forensic evidence has been adduced to show that the said dao was used in committing the crime. Of course, the failure of the prosecution to produce the incriminating weapon or to establish that the seized dao was used by the appellant, in committing the crime, does not negate the forceful evidence, given by the eye-witnesses. Both the eyewitnesses i.e. PW1 and PW2, whose evidence remained, undemolished, on material point, clearly stated that the appellant had assaulted the deceased with a dao. The medical evidence, rendered by PW6, also supports the evidence of the said eye-witnesses regarding use of a sharp cutting weapon by assailant. In view of the above, considering entire aspect of the matter, we find no difficulty in holding that the appellant had caused the fatal injuries on the person of the deceased. 14. The nature and the number of the injuries, sustained by the deceased, more particularly on vital parts i.e. on head clearly, indicates that the assailant had either the intention to kill the deceased or to cause such injuries which were likely to cause death of the deceased. There is nothing, on record, to show that there was any compelling circumstances, which prompted the appellant to inflict the said fatal injuries, which were likely to cause death of a person. The facts and circumstances revealed from the evidence, on record, does not indicate that the act, committed by the appellant, falls under any of the exceptions, prescribed by section 300 IPC. Therefore, we are inclined to hold that the appellant committed the offence of murder. In our considered opinion, the learned Sessions Judge committed no error by convicting the appellant under section 302 IPC. In view of the above, we find no merit in this appeal. Accordingly the appeal stands dismissed. The conviction and sentence are upheld. In appreciation of the assistance rendered by the learned Amicus Curiae, we direct payment of Rs. 5,000/- infavour of her by the Assam State Legal Services Authority. Return the lower Court records. _____________