Research › Search › Judgment

Gauhati High Court · body

2012 DIGILAW 495 (GAU)

Zil Haque @ Zel v. State of Assam

2012-04-20

A.K.GOEL, C.R.SARMA

body2012
C.R. Sarma J.;— 1. This appeal is directed against the judgment and order, dated 30/9/2010, passed by the learned Additional Sessions Judge (FTC), Bongaigaon, in Sessions Case No. 30(A)/2007. By the impugned judgment and order, the learned Sessions Judge, convicted the appellants, under sections 302/201 read with section 34 Indian Penal Code (hereinafter referred to as the ‘IPC’) and sentenced them to suffer imprisonment for life and pay fine of Rs. 10,000/- each in default suffer rigorous imprisonment for another period of six months for their conviction under section 302 IPC. The appellants have also been sentenced to suffer rigorous imprisonment for one year and pay fine of Rs. 5,000/- each in default suffer rigorous imprisonment for another period of three months for their conviction under section 201 IPC. Aggrieved by the said conviction and sentences, the convicted persons, as appellants, have come up with this appeal. We have heard Mr. HRA Choudhury, learned Sr. Counsel for the petitioner assisted by Mr. IA Hazarika, learned counsel appearing for the appellants and Mr. D. Das, learned Additional Public Prosecutor, Assam, appearing for the State. 2. The prosecution case, in brief, as revealed at the trial, may be stated as follows. There was a dispute between the appellant Mr. Zil Haque and Md. Tazem Ali (hereinafter referred to as the deceased) regarding enjoyment of “Aai Nadi Beel” (a river fishery). On 23/5/2004, at about 9 P.M. Md. Najmul Haque (PW7) a covillager, visited the deceased’s house and both of them went out, but the deceased did not return home. On the next morning, marks of dragging a person from the house of the appellants namely Innus Ali Munchi and Abul Kalam, upto the river was noticed. The people of the village, suspecting murder of the deceased and concealment of the dead body took steps to fish out the dead body from the river water but the dead body could not be recovered on the said date. Accordingly, an FIR was lodged by Amzad Ali (PW1), who is the brother of the deceased. On the next morning i.e. on 25/5/2004, the dead body of the deceased was found floating in the beel i.e. the place where search was made on the previous day and information being lodged, Police arrived there and recovered the dead body. Accordingly, an FIR was lodged by Amzad Ali (PW1), who is the brother of the deceased. On the next morning i.e. on 25/5/2004, the dead body of the deceased was found floating in the beel i.e. the place where search was made on the previous day and information being lodged, Police arrived there and recovered the dead body. During the course of investigation, Police visited the place of occurrence, recovered the dead body of the deceased, prepared the inquest report in respect of the dead body (Exhibit 2), prepared a sketch map, forwarded the dead body for post mortem examination and seized a “Punjabi Shirt” from the house of the appellant Innus Ali Munchi, vide seizure list (Exhibit-7). Police arrested all the accused persons and forwarded them to the Court. At the close of investigation, Police submitted charge sheet under sections 302/201/34 IPC against the accused persons. The offence being exclusively triable by the Court of Sessions, the learned Sub-Divisional Judicial Magistrate (M), North Salmara, Abhayapuri, committed the case to the Court of Sessions and the learned Sessions Judge, Bongaigaon, framed charges, under sections 302/201 read with section 34 IPC, against the appellants. The charges were read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried. 3. In order to prove their case, prosecution examined as many as 16 witnesses including the Medical Officer (PW16) who performed the post mortem examination and the Investigating Officer (PW15). PW1 and PW5 are brothers of the deceased, PW2 is the deceased’s wife and PW6 is the nephew of the deceased. PW3, PW4, PW7, PW8, PW9, PW10, PW11, PW12, PW13 and PW14 are the covillagers of the deceased. At the close of the evidence for the prosecution, the accused persons were examined under section 313 Cr.P.C. They denied the allegations, levelled against them. No defence evidence has been adduced in this case. Considering the evidence on record, the learned Trial Judge convicted and sentenced the appellants as indicated above. 4. Mr. HRA Choudhury, learned Sr. Counsel, appearing for the appellant, has submitted that there is no substantive and reliable evidence indicating the involvement of the appellants with the death of the deceased and as such the learned Trial Judge committed error by convicting them under sections 302 and 201 IPC. The learned Sr. 4. Mr. HRA Choudhury, learned Sr. Counsel, appearing for the appellant, has submitted that there is no substantive and reliable evidence indicating the involvement of the appellants with the death of the deceased and as such the learned Trial Judge committed error by convicting them under sections 302 and 201 IPC. The learned Sr. Counsel has also contended that the learned Trial Judge failed to appreciate and notice the evidence of the witnesses and the contradictions, surfacing from their evidence. It is also submitted that though PW3 claimed to be the eye witness, he remained silent about the incident for about 45 days and this conduct, on his part, raises doubt about the veracity of his testimony. The learned Sr. Counsel has also submitted that no explanation has been given for such delayed examination of PW3 by the Police and as such the unexplained delay, in examining such a vital witness, creates doubt about the veracity of the evidence, given by such witness. The learned Sr. counsel has also submitted, that the evidence of PW3 cannot be accepted for want of corroboration. He also points out that there is no other cogent evidence to substantiate the charge against the appellants. The learned Sr. Counsel has further contended that the confession alleged to be made by the appellant Zil Haque, during his custody with the Police, being hit by section 25 of the Indian Evidence Act, 1872, cannot be used against the appellants. It is also submitted by the learned Sr. Counsel that though a “Punjabi Shirt” has been claimed to be seized from the house of Innus Ali Munchi, on being led by Zil Hoque, there is nothing substantive to show that the said Punjabi Shirt belonged to the decease. It is also submitted that the alleged dragging marks, in the absence of any direct evidence, cannot be sufficient to hold the appellant guilty of causing the death of the deceased and dragging the dead body to the river for its concealment. The learned Sr. Counsel has submitted that the prosecution failed to establish the charges beyond all reasonable doubt and as such the impugned conviction and sentence are liable to be set aside. Refuting the said arguments, advanced by the learned Sr. Counsel for the appellants, Mr. The learned Sr. Counsel has submitted that the prosecution failed to establish the charges beyond all reasonable doubt and as such the impugned conviction and sentence are liable to be set aside. Refuting the said arguments, advanced by the learned Sr. Counsel for the appellants, Mr. D. Das, learned Additional Public Prosecutor, has submitted that there is sufficient material, on record, to show that the appellant’s were involved with the death of the deceased and concealment of the dead body. The learned Public Prosecutor has submitted that the oral evidence given by PW3 and the dragging marks leading from the house of Innus Ali Munchi and Abul Kamal to the river beel and recovery of the dead body from the river beel are sufficient substantive evidence to show the involvement of the appellants. He has also submitted that the recovery of the Punjabi Shirt from the house of Innus Ali Munchi, at the instance of the appellant Zil Hoque, indicates the involvement of the appellants. In view of the above, the learned Additional Public Prosecutor, supporting the impugned conviction and sentence, has submitted that the learned Trial Judge committed no error by convicting the appellant as indicated above and that the impugned conviction and sentences do not warrant any interference. 5. Having heard the learned counsel for both the parties and considering the materials on record, it is found that the dead body of the deceased was found floating, on 25/5/2004, in the Aai river beel. The inquest report (Exhbit-2) prepared by the Investigating Officer, after recovery of the dead body from the beel (fishery), reveals that the neck was found in swollen condition with two nail marks and there was bleeding from the nostrils. The Medical Officer (PW16), who performed the autopsy in respect of the dead body of the deceased did not find any mark of ligature on the neck or injury in the mouth or on other parts of the body. He opined that death was caused due to ante mortem drowning. In his cross examination, made on behalf of the defence, the Medical Officer stated that he did not find any injury, even laceration, abrasion, incise, contusion. He also opined that if any person is dragged, there must be some laceration or abrasion on the body of the person, who is so dragged and, in that case, skin deep injury would be available. He also opined that if any person is dragged, there must be some laceration or abrasion on the body of the person, who is so dragged and, in that case, skin deep injury would be available. The above Medical Evidence rules out the possibility of dragging the deceased after causing his death. The absence of any injury including superficial or laceration or abrasion also suggests that no force was applied to the deceased either before or after his death. According to the said Medical Officer, death was caused due to ante mortem drowning. The expression “ante mortem drowning” used by the Medical Officer rules out the possibility of strangulation or appliance of any force in causing the death. The said medical evidence clearly indicates that the death of the deceased was due to drowning. Therefore, the medical evidence does not support the prosecution version of homicidal death, at the hands of the appellant. Though the prosecution witnesses stated that, on the next morning, they had seen dragging marks from the house of Innus Ali Munchi and Abul Kalam to the beel, absence of any injury, on the body of the deceased, does not support the said prosecution version that the deceased was dragged from the house of the appellants to the river for its concealment. That apart, if any force was applied to the deceased, in causing his death then, certainly, some marks of injury or evidence of applying force would have been available in the body of the deceased. The medical evidence, given by PW6, indicates absence of any such injury marks. Therefore, it cannot be held that the death of the deceased was caused by applying any force. 6. In the FIR (Exhibit-1), it has been stated that the family members of Innus Ali Munchi, Abul Kalam and Md. Abu Hanif (all appellants) whose houses were situated on the road side, heard some hue and cry or some commotion, on the night of 23/5/2004, but they did not come out of their houses. In the FIR, it has also been stated that some dragging marks were found from the place of occurrence to the river. The said FIR is silent about the place of occurrence. In the FIR, it has not been stated that the dragging marks were noticed from the houses of Noor Islam and Abdul Kalam. In the FIR, it has also been stated that some dragging marks were found from the place of occurrence to the river. The said FIR is silent about the place of occurrence. In the FIR, it has not been stated that the dragging marks were noticed from the houses of Noor Islam and Abdul Kalam. As revealed from the said FIR, it is clear that on the night of 23/5/2004, at the time of the incident, Md. Innus Ali, Abdul Kalaam and Abu Hanifa were not present in their respective houses. But PW3, who claims to be the eye-witness stated that on the said night, while returning from the market, he, along with Innus, Kalaam, Jel Haque and Shah Zamaal had gone to the house of Kalaam and that the deceased was killed in the house of Kalaam by Jel Haque. In view of specific statement, made in the FIR, regarding absence of male members in the house of Abdul Kalaam, the evidence of PW3 that the occurrence had taken place in the house of Abdul Kalaam is not believable. According to PW3, when the deceased was going from the house of Samsul Dewani (not examined), accused Kalaam had called him to his house for taking a paan and in the house of Kalaam, Jel Haque had asked the deceased as to whether he would give up the said fishery. According to PW3, as the deceased had replied that he would give up the possession of the fishery as and when the public would do that, the appellant Jel Haque had asked him (PW3) and Innus Munchi to move towards the west and thereafter, he heard a cry as “o father”. He further stated that accused Jel Haque warned him not to disclose the matter to anybody and thereafter the dead body of the deceased was taken to the fishery. Even if the said evidence of PW3, is accepted, the involvement of the other appellants, except Jel Haque, cannot be believed. That apart, he did not see as to who and in what manner had killed the deceased. 7. From his cross-examination, it is found that he did not disclose such vital information to anybody for about 45 days i.e. till the time when he was examined by the Police. Withholding of such vital information for such a long period, raises doubt about the authenticity of the same. 7. From his cross-examination, it is found that he did not disclose such vital information to anybody for about 45 days i.e. till the time when he was examined by the Police. Withholding of such vital information for such a long period, raises doubt about the authenticity of the same. No explanation has been put forward by the Investigating Officer for such delayed examination of PW3. The unexplained delay in examination of such a vital witness also raises doubt about the veracity of the story, revealed by the witness. 8. According to PW3, the occurrence took place in the house of Kamaal and the dead body was taken therefrom to the beel. So the dragging marks, if any, should have existed from the house of Abdul Kalaam. But Md. Parbat Ali (PW5), who was the brother of the deceased stated that he saw mark of pulling something from the house of Innus Munchi to the beel. PW3, who claimed to be an eye witness did not state that the incident took place in the house of Innus Munchi. As indicated above, according to PW3, the incident took place in the house of Abdul Kalaam, therefore, if the incident had taken place in the house of Abdul Kalaam and the dead body was dragged therefrom to the beel, there could not be any mark of pulling a person from the house of Innus Munchi. The said evidence of PW5 suggests that the incident took place in the house of Innus Munchi, but according to PW3, Innus Munchi was with him at the time of the occurrence and Innus Munchi was not present, when the appellant Jel Haque had killed the deceased. The evidence of PW3 is contradicted by Abdul Hamid (PW4), who stated that, on the night of the incident i.e. 23/5/2004 at about 9 P.M., he heard certain cry in the house of Innus Ali Munchi. Therefore, according to PW4, the incident, had taken place in the house of Innus Ali Munchi. Hence, there is discrepancy in the evidence of PW4 and PW3. In tune with the evidence of PW5, Mr. Surut Zamal, deposing as PW6, stated that he saw mark of pulling from the house of Innuch Ali Munchi upto the Aai river beel. Therefore, according to PW4, the incident, had taken place in the house of Innus Ali Munchi. Hence, there is discrepancy in the evidence of PW4 and PW3. In tune with the evidence of PW5, Mr. Surut Zamal, deposing as PW6, stated that he saw mark of pulling from the house of Innuch Ali Munchi upto the Aai river beel. If the evidence of PW3 is believed then the evidence of PW5 and PW6 regarding existence of pulling marks from the house of Innus Ali Munchi cannot be believed inasmuch as, according to PW3, Innus Ali Munchi was present with PW3 at the time of the incident and the incident had taken place in the house of Abdul Kalaam. The said contradictions on material point, found in the evidence of PW3, PW5 and PW6, raises doubt about the veracity of the evidence given by the said witnesses. Therefore, the evidence of PW3 that the incident had taken place in the house of Abdul Kalaam in his presence, cannot be believed without corroboration. None of the prosecution witnesses have corroborated the evidence of PW3 indicating that the incident had taken place in the house of Abdul Kalaam. Najmul Haque (PW7), who is stated to have visited the deceased in his house, supporting the evidence of PW2, stated that, on the fateful night, he went to the house of the deceased and, therefrom he accompanied him for going to the house of Samad Ali (not examined) for discussing a matter regarding purchase of land, but, they went to the house of Samsul Ali (not examined) and therefrom the deceased, asking this witness to go to the house of Khalek, proceeded to the house of Sorhab (not examined). So from the evidence of PW7, it is found that the deceased, after leaving him (PW7) went to the house of Sorhab for attending a “mel”. If PW7 is believed then it must be held that the deceased went to the house of Mr. Sorhab, after coming out from the house of Samsul Ali. This witness further stated that he saw mark of pulling from the house of Innus Ali Munchi upto the beel. But, if the evidence of PW3 is believed then it can be held that, Innus Ali Munchi was with him. Sorhab, after coming out from the house of Samsul Ali. This witness further stated that he saw mark of pulling from the house of Innus Ali Munchi upto the beel. But, if the evidence of PW3 is believed then it can be held that, Innus Ali Munchi was with him. Therefore, the deceased, could not have been killed in Innus Ali’s house and no mark of pulling the deceased from the house of Innus Ali Munchi, could have existed. Therefore, the evidence of PW3, PW5, PW6 and PW7 regarding mark of dragging is found to be contradictory, raising doubt about the veracity of their evidence. 9. Md. Nabir Hussain (PW8), stated that people had found mark of dragging a man on the road upto the beel. He did not state that the dragging mark was traced from the house of either Innus Ali Munchi or Abdul Kalaam. He further stated that after about 16-17 days of the occurrence, Police had arrested Jil Haque and brought him to the place of occurrence and on being asked by the people, who gathered there, the said appellant confessed that he had killed the deceased. However, in his cross examination, this witness stated that he himself did not ask the appellant about his involvement. Mahar Ali (PW9), in tune with the evidence of PW8 and PW10 stated that, after arrest of appellant Jil Haque, on being asked by the public, he had confessed his guilt. It is found that the said extra judicial confession was made by the accused, while in his custody of the Police i.e. after his arrest. Therefore, the said extra ordinary judicial confession, if any, being hit by sections 25 and 26 of the Indian Evidence Act, 1872, cannot be accepted as legal evidence against the appellants. Though the Punjabi shirt, belonging to the deceased, is claimed to be seized, vide Exhibit-7, from the house of Innus Ali Munchi, on being led by the appellant Jil Haque, the evidence given by PW3 negates the involvement of Innus Ali Munchi. The seized shirt has been exhibited by the Investigating Officer (PW15) as material Exhibit-1. None of the prosecution witnesses, more particularly, the family members of the deceased proved that the said material Exhibit-1, was the shirt worn by the deceased at the relevant time. The wife of the deceased i.e. PW2 and Mr. The seized shirt has been exhibited by the Investigating Officer (PW15) as material Exhibit-1. None of the prosecution witnesses, more particularly, the family members of the deceased proved that the said material Exhibit-1, was the shirt worn by the deceased at the relevant time. The wife of the deceased i.e. PW2 and Mr. Najmul Hoque (PW7), with whom the deceased had left his house just before the incident were the best persons to say as to whether the deceased had left the house with the said Punjabi Shirt. PW7 is silent with regard to the said material Exhibit-1. Though PW2 i.e. the wife of the deceased stated that the appellant Jil Haque had produced her husband’s Punjabi shirt from the house of Innus Ali Munchi, she had neither exhibited the said shirt nor stated that the material Exhibit No. 1 i.e. the very shirt seized by the Police, was used by her husband at the relevant time. Therefore, recovery of a Punjabi Shirt from the house of Innus Ali Munchi, at the instance of the appellant Jil Haque, cannot be substantive evidence to show that the same was kept by the said appellant, after committing the crime. Therefore, the seizure of the said shirt cannot be substantial evidence to implicate the appellant with the death of the deceased. 10. Law is well settled that in a criminal case, the prosecution is required to prove the charges, brought against accused beyond all reasonable doubt and benefit of such doubt should always go in favour of the accused person. As discussed above, we find that the prosecution failed to prove, beyond all reasonable doubt, that none other than the appellants had caused the death of the deceased. Therefore, it is not safe to base the conviction, on the basis of the evidence as indicated above. In our considered opinion, the appellants are entitled to the benefit of doubt. Accordingly we find merit in this appeal, requiring interference with the impugned conviction and sentence. The conviction and sentence as indicated above are set aside. The appellants are acquitted and they be set at liberty forthwith, if not required in any other case. 11. In our considered opinion, the appellants are entitled to the benefit of doubt. Accordingly we find merit in this appeal, requiring interference with the impugned conviction and sentence. The conviction and sentence as indicated above are set aside. The appellants are acquitted and they be set at liberty forthwith, if not required in any other case. 11. 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 Cr.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 Bongaigaon 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. Let a copy of this judgment and order be furnished to the Chief Secretary to the Government of Assam, for doing the needful. 12. With the above observations, directions and modifications, the appeal is allowed. Return the LCRs. _____________