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2013 DIGILAW 192 (GAU)

Md. Ahizal Hoque v. State of Assam

2013-03-14

I.A.ANSARI, P.K.MUSAHARY

body2013
JUDGMENT Iqbal Ahmed Ansari, J. 1. This appeal is directed against the judgment and order, dated 09-04-2008, passed, in Sessions Case No. 16 (DM) of 2005, by the learned Sessions Judge, Darrang, Mangaldoi, convicting the accused-appellant under Sections 326 and Section 302 read with Section 34 IPC and sentencing him, for his conviction under Section 302 read with Section 34 IPC, to undergo imprisonment for life and pay a fine of Rs. 5,000/- and, in default of payment of fine, suffer rigorous imprisonment for a period of six months and also to undergo, for his conviction under Section 326 read with Section 34 IPC, rigorous imprisonment for two months, both the sentences having been directed to run concurrently. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under:- (i) A dispute took place, over a goat, between the family of Sukur Ali (since deceased) and Ahizal Hoque (accused-appellant) and his family inasmuch as one of the goats of Sukur Ali had been taken away by accused Ahizal Hoque. For settlement of the dispute, accused Jamir Uddin had called Sukur Ali to Dalgaon Police Station. Sukur Ali, accordingly, went, on 10.02.2001, accompanied by Munsar Ali and Mannan Ali, to Dalgaon Police Station for settlement of the dispute. A compromise was reached, whereunder accused Jamir Uddin, elder brother of accused Ahizal Hoque, assured Sukur Ali and his relatives that accused Ahizal would provide a goat to Sukur Ali from market. (ii) Accompanied by Mannan Ali (PW8) and Munsar Ali (PW9), when Sukur Ali was returning home, accused Jamir Uddin caught hold of Sukur Ali by hand and called Ahizal Hoque and Hazar Ali (since deceased) to attack Sukur Ali. Immediately, thereafter, accused Ahizal Hoque and Hazar Ali assaulted Sukur Ali by dagger. Hearing the alarm raised by Sukur Ali, when Mannan Ali (PW8) and Munsar Ali (PW9) attempted to intervene, Mannan Ali was also assaulted by the said accused persons and sustained injuries on various parts of his body. (iii) Having heard about the occurrence, Md. Nasu Sheikh, father of Sukur Ali, and other members of his family, rushed to the place of occurrence and, on finding Sukur Ali and Mannan Ali in injured condition, both of them were sent to Gauhati Medical College and Hospital. (iii) Having heard about the occurrence, Md. Nasu Sheikh, father of Sukur Ali, and other members of his family, rushed to the place of occurrence and, on finding Sukur Ali and Mannan Ali in injured condition, both of them were sent to Gauhati Medical College and Hospital. However, while Mannan Ali could receive treatment at the hospital, Sukur Ali succumbed to his injuries on the way to the hospital. 2. On 10.02.2001 itself, at about 2.25 pm, the Officer-in-Charge, Dalgaon Police Station, received an information with regard to the occurrence and, having made an entry, in this regard, in the General Diary, namely, G.D. Entry No. 287, dated 10.02.2001, ordered PW13 to investigate. Thereafter, Md. Nasu Sheikh lodged, on 11.02.2001, a written Ejahar (Ext-4), at Dalgaon police station. Treating the said Ejahar as First Information Report (in short, FIR'), Dalgaon Police Station Case No. 35 of 2001, under Sections 341 /326 /302 /34 IPC, was registered against three accused persons, namely, Hazar Ali, Ahizal Hoque and Jamiruddin. 3. During the course of investigation, police visited the house of the accused, held inquest over the said dead body, which was also subjected to post mortem examination. The police also obtained injury report in respect of Mannan Ali and, on completion of investigation, laid a charge-sheet against the accused-appellant, Ahizal Hoque, and accused Hazar Ali (since deceased) under Sections 341 /326 /302 /324 /34 IPC. 4. At the trial, when charges under Sections 302, 326 and 323 read with Section 34IPC, were framed against the two accused aforementioned, both the accused pleaded not guilty thereto. 5. During trial, accused Hazar Ali died and the case, as against him, abated. Consequently, the trial proceeded against the accused-appellant Ahizal Hoque. 6. In support of their case, prosecution examined altogether 13 (thirteen) witnesses. The accused-appellant, Ahizal Hoque, was, then, examined under Section 313 Cr. P.C. and, in his examination aforementioned, he denied that he had committed the offences, which were alleged to have been committed by him. No evidence was adduced by the defence. 7. Having, however, found accused Ahizal Hoque guilty of the offences under Sections 302 and 326 read with Section 34 IPC, the learned trial Court convicted him accordingly and passed sentences against him as mentioned above. Aggrieved by his conviction and the sentences, which have been passed against him, accused Ahizal Hoque has preferred this appeal. 8. We have heard Ms. Having, however, found accused Ahizal Hoque guilty of the offences under Sections 302 and 326 read with Section 34 IPC, the learned trial Court convicted him accordingly and passed sentences against him as mentioned above. Aggrieved by his conviction and the sentences, which have been passed against him, accused Ahizal Hoque has preferred this appeal. 8. We have heard Ms. A. Das, learned counsel, and Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam. 9. While considering the present appeal, it needs to be noted that the doctor (PW-4), who conducted the post mortem examination on the dead body of Sukur Ali, found, admittedly, as follows:- Wounds: 1. One stab wound present on front of the abdomen; left sude size-3cm x 2cmx abdominal cavity deep situated 1.5 cm left from midline and 1 cm above the umbilicus. Though the wound mesentry and small intestine coming out. On opening the abdomen it is found that peritonour and mesentry performed. One perforating injury present on jijunal part of the small intestine, size=1.5 cm x 1 cm x intestinal cavity deep. Abdominal cavity contains about 900 ml. of liquid and clotted blood mixed with the intestinal content. Thorax-all organs healthy. Walls, peritoneum as described. Small and large intestine-as described. 10. In the opinion of the doctor, the death was due to shock and haemorrhage as a result of stab injury, described above, which was ante mortem in nature and caused by sharp cutting, but pointed weapon, the death being homicidal in nature. The doctor (PW-4) has also deposed that the stab injury aforementioned was sufficient to cause death of a person in the ordinary course of nature. 11. The defence declined to cross-examine the doctor. Thus, the findings of the doctor, his opinion with regard to the nature of injuries, the cause of death and also the nature of weapon used in the case, remained unchallenged. This apart, we, too, do not find anything inherently incorrect or improbable in the evidence given by the doctor with regard to the injuries, which were found on the said dead body, the nature of injuries, the nature of the weapon and the cause of death of the said deceased. We, therefore, hold that Sukur Ali met with homicidal death. 12. So far as PW6, is concerned, he is the doctor, who had examined Mannan Ali (PW8) and his findings were as follows: 1. We, therefore, hold that Sukur Ali met with homicidal death. 12. So far as PW6, is concerned, he is the doctor, who had examined Mannan Ali (PW8) and his findings were as follows: 1. Multiple stab injuries over the back side of the chest and left lateral side of abdomen following which there was development of surgical emphysema. This injury was probably caused by sharp weapon amounting grievous weapon. 2. Cut injury over left elbow. Size 6 cm x 3 cm x 3 cm. weapon sharp. Injury simple. 3. Cut injury over scalp over the occipital region size-4 cm x 2 cm x 2 cm. Weapon sharp. Injury simple. These are three injuries. 13. The defence declined to cross-examine PW6 too. We find that the findings of the doctor (PW6) and his opinion, with regard to the nature of injuries, was not incorrect or improbable. We, therefore, see no reason to doubt the correctness of the findings of the doctor (PW6) and his opinion with regard to the nature of injuries, which Mannan Ali (PW8) was found to have sustained. 14. From the medical evidence on record, as discussed above, it is clear that while Sukur Ali met with homicidal death, the injuries, which were sustained by PW8, were grievous in nature. 15. The question, however, is: whether the accused-appellant had, along with accused Hazar Ali (since deceased), caused death of Sukur Ali and inflicted injuries on Mannan, as described above, in furtherance of their common intention. 16. Though the findings of guilt, which the learned trial Court has reached, have been assailed on several grounds, what attracts the attention, most prominently, is that the occurrence had, allegedly, taken place on 10.02.2001, at about 8 P.M., but the written Ejahar (Ext. 4), which has been treated as FIR of the case, was lodged, on 11-02-2001, at about 4.30 P.M. 17. When called as a witness, the Investigating Officer (PW13) has conceded that Dalgaon Police Station was informed about the occurrence, on 10-02-2001 itself, at 8.30 P.M. and, in this regard, GD Entry No. 287, dated 10.02.2001, was made. Sadly enough, the learned trial Court does not appear to have been alive to the evidence, which had so surfaced on the record. Sadly enough, the learned trial Court does not appear to have been alive to the evidence, which had so surfaced on the record. When the occurrence had been reported to the police on the night of the occurrence itself, it was incumbent, on the part of the learned trial Court, to find out from the Investigating Officer as to what information had been given to the police at the earliest point of time and whether any name of the culprit had been disclosed and, if so, whose name or names had been disclosed. 18. Coupled with the above, it was also imperative, on the part of the learned trial Court, to find out if the name of the present accused-appellant had figured as accused on the night of the occurrence itself and if not, then, what the explanation was and how far such explanation was plausible and convincing. This Court, while exercising the appellate jurisdiction, finds that legally sustainable approach, as indicated hereinbefore, has not been adopted by the learned trial Court. 19. We must bear in mind that a trial Judge is not merely a recording machine of evidence. A trial judge is not a mere umpire. He must participate in the trial and he must remain alive to the developments, which take place at the trial. The duty of the trial Judge is neither to convict the accused nor to acquit him; his mission shall be to reach, and should always remain to reach, the truth and, for that purpose, the trial Judge must examine such witnesses, whose evidence is necessary for just decision of the case and with this object in view, or, in other words, in order to reach the truth, he must illicit all such evidence as may be relevant and necessary without, however, doing anything, which may impair, or seen to have impaired, his impartiality; or else, Section 311 Cr. PC would become redundant and Section 165 of the Evidence Act would be set at naught. A trial Judge shall not allow himself to be led by such evidence, which is either not complete or not intelligible. 20. In the case at hand, the learned trial Court committed serious error in not bringing, on record, the contents of the GD Entry No. 287, dated 10-02-2001, and, then, deciding the case in accordance with law. 21. A trial Judge shall not allow himself to be led by such evidence, which is either not complete or not intelligible. 20. In the case at hand, the learned trial Court committed serious error in not bringing, on record, the contents of the GD Entry No. 287, dated 10-02-2001, and, then, deciding the case in accordance with law. 21. Because of the lapses with which the trial of the accused-appellant suffered from, we are of the considered view that the case needs to be remanded back to the learned trial Court so that complete evidence becomes available on record for the purpose of determining the guilt or otherwise of the accused-appellant. 22. Because of what have been discussed and pointed out above, this appeal partly succeeds. The conviction of the accused-appellant and the sentences, which have been passed against him, are hereby set aside and the case is remanded to the learned trial Court for re-calling PW13 (Investigating Officer) or, if he is no longer alive, then, to call the present Officer-in-Charge, Dalgaon Police Station, along with GD Entry No. 287, dated 10-02-2001, and, upon bringing on the record contents of the said GD Entry, dispose of the case in accordance with law, bearing in mind what have been observed in the preceding paragraphs of this judgment and order. 23. During the pendency of the trial, the accused-appellant shall be kept detained in the present custody and he shall not be allowed to go on bail and depending upon the conclusion, which the learned trial Court may, eventually, reach as regards the guilt or otherwise of the accused-appellant, the question of enlarging the accused, on bail, or otherwise, or setting him at liberty shall be decided. 24. Before parting with this appeal, this Court makes clear that it has not consciously entered into the discussion of the veracity or otherwise of the evidence, which stands adduced by prosecution, so that the learned trial Court remains free and unfettered to come to its own logical conclusion as regards guilt or otherwise of the accused-appellant. 25. Let the Amicus Curiae be paid a sum of Rs. 5,000/- for his valuable assistance rendered to this Court. 26. Send back the LCR with a copy of this judgment and order. With the above observations and directions, this appeal stands disposed of.