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Gauhati High Court · body

2013 DIGILAW 473 (GAU)

Saidul Islam v. State of Assan

2013-07-20

B.D.AGARWAL, INDIRA SHAH

body2013
JUDGMENT Dr. Indira Shah, J. 1. The judgment and order dated 18.05.2010, passed by learned Session Judge, Morigaon, in Sessions Case No. 67/07, convicting the appellant under Sections 448 and 302, IPC and sentencing him thereby to undergo rigorous imprisonment for 6 (six) months for his conviction under Section448, IPC and also to suffer imprisonment for life and to pay a fine of fine of Rs. 2,000/- (Two thousand), in default, of payment of fine, rigorous imprisonment for 2 (Two) months for the offence committed under Section 302, IPC has been challenged. Heard Mr. P.N. Choudhury, learned amicus curiae and Mr. B.J. Dutta, learned Additional P.P. appearing on behalf of the State. 2. The prosecution story, as projected during the trial, in brief, is that the accused Md. Saidul Islam gave a proposal to marry Rabiza Khatoon, the sister of the deceased, which was, however, rejected by Akbar Ali. Next day on 11.02.2007 at around 11.00 p.m., the accused entered into the house of Akbar Ali and inflicted dao blow on his neck, while Akbar Ali was sleeping on his bed along with his brother and father. Hearing the alarm raised by Akbar Ali, the family members of his house came to his room, they also raised hue and cry and the people from his vicinity gathered mere. They saw Akbar Ali lying injured. However, he was able to talk and he disclosed how Md. Saidul Islam (accused) inflicted the injuries. Immediately, he was shifted to hospital where he succumbed to his injuries. FIR being lodged by Md. Hussain Ali, brother of the deceased, Morigaon P.S. Case No. 17/2007 under Section 448/302, IPC was registered. 3. On completion of investigation, charge-sheet under Section 448/302 was submitted against the accused. 4. During the trial, charges under Section 448/302, IPC were framed against the accused. The accused pleaded not guilty to the charges. Altogether 16 witnesses were examined by the prosecution in support of its case. Thereafter, the statement of accused under Section 313, Cr PC was recorded. The accused denied all the allegations levelled against him and pleaded that he is innocent. He, however, declined to adduce any defence evidence. The defence case, as it appears from the cross-examination of prosecution witnesses is that brother of the deceased being mentally ill had inflicted injury on the Akbar causing his death. 5. Ms. The accused denied all the allegations levelled against him and pleaded that he is innocent. He, however, declined to adduce any defence evidence. The defence case, as it appears from the cross-examination of prosecution witnesses is that brother of the deceased being mentally ill had inflicted injury on the Akbar causing his death. 5. Ms. Rabiza Khatoon, sister of the deceased (PW 4), Smt. Sakina Khatoon (PW 5) mother of the deceased, Md. Hasmat Ali (PW 12) brother of the deceased and Md. Abdul Jabbar (PW 13) father of the deceased were the inmates of the house of the deceased. PW 1 Md. Hussain, is the cousin brother of the deceased. He deposed that the deceased used to live in the same house premises. On the date of occurrence at about 11.00 p.m., he heard hue and cry towards the house of Akbar Ali and rushed his house. He saw the accused running away from the house of the accused holding a khukuri in his hand. He stated that he could identify the accused in the moonlight. He, further, deposed that on the same day in the evening prior to the incident, the accused proposed to marry Rabiza Khatoon i.e. sister of Akbar Ali. Akbar Ali rejected his proposal as he wanted his sister to continue her study. There was some altercation between them. He stated that the incident of altercation took place in presence of Jamal and Idul, on the side of the embankment. He alleged that the accused Saidul Islam intimidated the victim by saying, 'I will see you'. According to PW 1 when he reached the place of occurrence, he saw Akbar Ali lying injured. Akbar Ali was capable of talking and disclosed that accused inflicted the injuries. He was immediately removed to Moirabari hospital wherefrom, he was referred to Nagaon Civil Hospital. He also stated that Mustt. Jerina Khatoon (PW 2), also arrived there just after hearing hue and cry. In cross-examination, he stated there was an earthen lamp (Chaki) burning inside the room of Akbar Ali. The bamboo door of Akbar was found cut and the rope used to tie up the door, was also cut. There were 2 (Two) bed in the room and in one bed Akbar was sleeping and on the other bed his mother and sister were sleeping. The bamboo door of Akbar was found cut and the rope used to tie up the door, was also cut. There were 2 (Two) bed in the room and in one bed Akbar was sleeping and on the other bed his mother and sister were sleeping. There was a bamboo partition between the bed of Akbar, and that of his mother and sister. On his arrival to the place of occurrence, he found the mother and sister of Akbar crying inside the house. He in his statement before the Investigating Officer did not mention that he could recognise the accused clearly. He stated before the Investigating Officer that observing the wearing apparels he suspected that the man running away from the house of Akbar was Saidul. He, further, stated that the deceased Akbar used to sleep with his father and brother Hasmat Ali. The brother was idiot (Benga) and his father was deaf. 6. PW 2 Mustt. Jerina Khatoon's house is near to the house of the deceased. She deposed that in the night of occurrence she noticed a man standing in the corner of her house compound. Then she asked him who was there and he replied that he was Saidul. When she asked him why he was standing there, he told her that he has came in search of Habizul, She noticed a khukuri in his hand. Thereafter, she went inside the room and slept with his children. After a short while, she heard hue and cry raised by Akbar. She immediately came to the house of Akbar and saw the accused running away. After her arrival PW 1 arrived. She also narrated that the room was partitioned and in one room mother and sister of Akbar were sleeping on a bed and the other bed where the decease was sleeping was also occupied by his father and brother. On asking Akbar as to what happened, then he (Akbar) stated that Saidul had inflicted injuries on him. She, further, deposed that Saidul wanted to marry Akbar's sister and as Akbar refused his proposal, there was enmity between them. According to her, when Akbar cried and his mother came in the room and lit up the "Chaki". She could identify the accused as it was moonlight as she stated. She, further, deposed that Saidul wanted to marry Akbar's sister and as Akbar refused his proposal, there was enmity between them. According to her, when Akbar cried and his mother came in the room and lit up the "Chaki". She could identify the accused as it was moonlight as she stated. She, however, in her statement recorded under Section 161, Cr PC stated that she could not recognise the person running away by her side but from wearing apparels she suspected that it was Saidul, who ran away. 7. PW 3 Md. Hazarat Ali, is neighbour of the deceased. He stated that at around 11.00 p.m. he heard hue and cry and thereafter, he proceeded towards the house of Akbar Ali holding torch and on flashing the torch light he could see the accused with a khukuri. He, further, stated that the accused Saidul threatened him by showing a khukuri and out of fear he entered into the house of Akbar. In the house, he found Rabiza Khatoon, Hussain Ali's mother and Akbar was lying injured with injuries on his neck. Akbar was capable of talking and stated that Saidul cut his neck and hand. Thereafter, Akbar was taken to Moirabari Health Centre, wherefrom, he was referred to Nagaon Civil Hospital and died on 12.02.2007. Nothing materials has been elicited in his cross-examination. 8. PW 4 Ms. Rabiza Khatoon, is the sister of the deceased. She stated that her father, mother, brother Hasmat AH, along with the deceased were residing in the same house. She used to sleep with his mother. Her father Abdul Jabbar and Ahmed along with Akbar used to sleep in another room. There was only one room to access outside and in the night of occurrence at about 11.00 p.m. She and her mother hearing the cry and woke up. After lifting up the chaki, they went to adjacent room, they saw accused Saidul going out with a khukuri in his hand and Akbar lying injured. Akbar told them that Saidul has inflicted injury on neck and hand. Her father and brother who were with the deceased although woke up, she stated that they were short of hearing. She denied that it was his brother Hasmat, who was suffering from mental abnormality caused the fatal injuries. Akbar told them that Saidul has inflicted injury on neck and hand. Her father and brother who were with the deceased although woke up, she stated that they were short of hearing. She denied that it was his brother Hasmat, who was suffering from mental abnormality caused the fatal injuries. On reply, to the query by the Court, she stated that on the previous day there was a quarrel between the accused and deceased on the embankment and Saidul threatened Akbar that he will see Akbar. 9. Lending support to the evidence of PW 4, Smt. Sakina Khatoon (PW 5), mother of the deceased, deposed that hearing the cry she along with her daughter went to the room of the deceased and saw the injuries on the neck of Akbar. Akbar was bleeding through injuries from his neck and hand. However, he was capable of talking and he informed them that Saidul has inflicted the injuries. She stated that she could not say that she had examined whether the door was tied by rope from inside or not. In her cross-examination she stated that the land in-occupation of Saidul was also claimed by them. She admitted that her son Hasmat is not mentally sound. 10. PW 6 Smt. Hazera Khatoon, stated that hearing hue and cry she along with her husband Kasem Ali came out and saw the accused running away with a khukuri in his hand. She stated that she saw the injuries on the neck of Akbar who told her that Saidul inflicted the injuries. 11. PW 7 Nurul Amin, is neighbour of the deceased and hearing the hue and cry at about 11.00 p.m., he along with his wife went to the house of Akbar Ali. Mother of the deceased told him that it was accused Saidul who inflicted injuries on the deceased. Before arrival of PW 7, Akbar was already shifted to the hospital. He stated that when PW 1 lodged the FIR, he accompanied him to the Police Station. Before arrival of the Police at the place of occurrence, the people of locality had gathered near the house of deceased. They found one khukuri by the side of the road, which was handover to the Investigating Officer and it was seized in presence of PW 7. 12. Before arrival of the Police at the place of occurrence, the people of locality had gathered near the house of deceased. They found one khukuri by the side of the road, which was handover to the Investigating Officer and it was seized in presence of PW 7. 12. PW 8 Maniruddin, is also a seizure witness, he stated that the khukuri was handed over to Police from the house of the deceased whereas PW 7 stated that the khukuri was found by the side of the road and it was given to the Investigating Officer. 13. PW 9 Abdul Kasem, deposed about the quarrel between the accused and the deceased prior to the occurrence. However, he stated that he did not witness the quarrel between them but he heard the accused saying that he will take revenge on Akbar Ali. He deposed that hearing hue and cry he went to the house of Akbar Ali and Akbar told them also that Saidul (accused) inflicted the injury on him. He also saw the accused coming out with a khukuri. In his cross-examination he admitted that he did not raise any hue and cry while entering into the house of Akbar. 14. PW 10 Abdul Hakim, stated that father of deceased namely Md. Abdul Jabbar handed over the khukuri to the Investigating Officer which was seized in his presence. The seized khukuri was kept in the shelf. 15. PW 11 Md. Muzzamil Hussain, deposed that after hearing the commotion, he proceeded towards the house of Akbar and saw Akbar was carried in a push cart. When he asked what had happened, then, Akbar informed him that Saidul has cut him. Others, who were taking Akbar, also informed him that Saidul inflicted injury on Akbar. He denied that Akbar was not in a position to talk. 16. PW 12 Md. Hasmat Ali, brother of the deceased deposed that he was sleeping in the same room with Akbar and his father. There was quarrel between Akbar Ali and Saidul regarding proposal given by Saidul to marry his sister. He alleged that Saidul entered inside by cutting door and inflicted cut injury on Akbar and after inflicting the injuries by means of a khukuri, he fled away. In cross-examination, he stated that there were two (2) bed in the room. He along with Akbar and father was sleeping on the same bed. He alleged that Saidul entered inside by cutting door and inflicted cut injury on Akbar and after inflicting the injuries by means of a khukuri, he fled away. In cross-examination, he stated that there were two (2) bed in the room. He along with Akbar and father was sleeping on the same bed. Akbar was sleeping in the middle and there was no light inside the room. 17. PW 13 Md. Abdul Jabbar, father of the deceased stated that finger and neck of Akbar was cut by accused Saidul, The learned Trial Court observed that this witness could not convey properly and his speaking power was not normal. It is in the evidence of other witnesses that the father and brother of the deceased (PWs 12 and 13) were not normal. His brother was idiot (benga) and his father was mentally sick. Therefore, it is risky to convict accused on the basis of evidence of these witnesses, who were present at the time of occurrence. 18. Satyaranjan Acharjee, ASI, simply issued requisition to conduct inquest on the dead-body, on being informed that injured Akbar who was admitted for treatment in the Hospital died due to injuries. In his cross-examination he admitted that no dying declaration could be recorded, as the injured was not in a position to talk, when he was taken to hospital. Similarly, PW 15, the Investigating Officer stated that on 11.02.2007 at around 01.30 a.m., the injured was taken to Police Station from the local hospital, on the way to Nagaon for treatment. The injured was not, however, in a position to talk, therefore, PW 15 made a G.D. entry and issued requisition to the Nagaon Civil Hospital for treatment to record the dying declaration of the injured. Subsequently, he heard that injured died on the same night. Next day FIR was lodged by Hussain Ali and accordingly, a case was registered. 19. PW 15 recorded the statement of witnesses and collected the post-mortem report. He stated that khukuri used for causing the injury was hand over to him by Abdul Hakim who found it near the cluster of lantern thrown by the miscreant, who ran away from the place of occurrence after committing the offence. In cross-examination, he stated that apparently there was no blood stain on the khukuri, so he did not sent it for forensic examination. In cross-examination, he stated that apparently there was no blood stain on the khukuri, so he did not sent it for forensic examination. He confirmed that Hussain Ali (PW 1) did not state before him regarding the quarrel between the accused and the deceased on the embankment. Hussain Ali, in his statement recorded under Section 161, Cr PC stated that he could see a man running by his side while he was going towards the house of Akbar and that, observing the clothes he suspected the man running away from house of Akbar to be Saidul. 20. PW 15 categorically stated that Hussain Ali stated before him that he could not clearly recognise the man. Similarly, Jerina Khatoon (PW 2) stated before him that she could not recognise the person running by her side at night but as the clothes of that man were same as that of Saidul whom she met in the evening, so she suspected the man to be Saidul, who was running away. 21. PW 16 Dr. S.N. Rahman conducted the post-mortem examination on the dead-body of Akbar Ali on 13.02.2007 and his findings are as follows:-- External Appearance A male dead-body, healthy built, rigor mortis present, 10 Nos. of stitches are found over the neck and stitches are cut opened. (1) One incised cut injury is detected over the neck extending from right literal side of the neck to the left lateral side of the neck at the level of thyroid cartilage, size of the wound-10" length, 2-1/2 "breadth and 1-1/2 depth. Margins are clean cut, muscles are exposed, clotted blood present. (2) Incised cut injury is detected over the right occipital region of the scalp; size 2" length, 1" breadth and bone exposed. (3) One incised cut injury over the tip of the right middle finger; size 1/2" x 1/2" x 1/2". Nail bed is absent. (4) Another incised cut injury over the right index; size 1/2" 1/2" x 1/2". Thorax Walls, ribs, cartilage-healthy. Pleurae-healthy. Right lung, left lung-healthy. Pericardium-healthy. Larynx is dissected. Both heart chambers-empty. Vessels-carotid artery and jugular vein are dissected on both sides of the neck. Abdomen Walls, peritoneum-healthy. Stomach and its contents-undigested food particles found. Small intestine and its contents-undigested food particles found. Large intestine and its contents--Faecal matter are seen. Cranium and spinal canal Scalp, skull, vertebrae-skull fracture of the right occipital bone detected. Pericardium-healthy. Larynx is dissected. Both heart chambers-empty. Vessels-carotid artery and jugular vein are dissected on both sides of the neck. Abdomen Walls, peritoneum-healthy. Stomach and its contents-undigested food particles found. Small intestine and its contents-undigested food particles found. Large intestine and its contents--Faecal matter are seen. Cranium and spinal canal Scalp, skull, vertebrae-skull fracture of the right occipital bone detected. Membrane-laceration of the membrane on the fracture side. Blood present. Brain-laceration of brain tissue at fracture side. Blood present. Liver, Spleen, Kidney-healthy. Muscles, bones and joints Injuries are ante-mortem in nature. 22. In the opinion of doctor, the death of the accused was due to shock and haemorrhage as a result of injury sustained by the deceased. In cross-examination the doctor stated that initially the deceased may be in a position to talk, if, the head injury was prior to the injury on the neck. He could not ascertain whether the head injury was prior to the injury on the neck. There is no dispute that the injuries sustained by the deceased were ante-mortem in nature and the death was due to shock and haemorrhage as a result of injuries sustained. Almost all witnesses have stated spoken about the dying declaration of the deceased prior to his death at different time. On the arrival of witnesses, the victim stated that it was accused who inflicted cut injuries on him. From their evidence, it also appears that the injuries sustained by the deceased were inflicted simultaneously and immediately after inflicting multiple blows, the assailant fled away from the place of occurrence. The deceased sustained injury on the neck, extending from right literal side of the neck to the left lateral side of the neck at the level of thyroid cartilage, size of the wound-10" length, 2 1/2" breadth and 1-1/2 depth. Margins were clean cut, muscles were exposed, clotted blood was present. The doctor clearly stated that the injured after sustaining injury on his neck could not be in a position to talk. The evidence of witnesses more particularly; PWs 1, 2, 3, 4, 5, 6, 9 and 11 is that the deceased prior to his death gave dying declaration that he was assaulted by the accused by means of a khukuri. 23. The evidence of witnesses more particularly; PWs 1, 2, 3, 4, 5, 6, 9 and 11 is that the deceased prior to his death gave dying declaration that he was assaulted by the accused by means of a khukuri. 23. In view of the evidence, adduced by the doctor and considering the injuries sustained by the deceased on his neck, it is difficult to believe that the injured was in a position to give any dying declaration after sustaining the injuries. That apart, it is clear from evidence of Investigating Officer (PW 15) that the injured was not in a position to talk. 24. PWs 1 and 2, although, they stated that they could identify the accused with a khukuri but they did not state before the Investigating Officer that they were able to identify the assailant. It appears from the evidence of Investigating Officer that they stated in their earlier statement that they could not recognise the person who was running away from the place of occurrence but they suspected him to be the accused on the basis of his wearing apparels. PW 3 and 4 also stated that they could recognise the accused in the light of torch and chaki. PW 3 stated that his house is situated to the south of Akbar. Hearing hue and cry he woke up and taking a torch proceeded towards the house of Akbar and on flashing the torch light, he could see the accused Saidul with a khukuri in his hand. He, further, stated that the accused threatened him by showing the khukuri and hence out of fear he entered into the house of Akbar for shelter. From the sketch map prepared by PW 15 and exihibited as Exihibit-6, there is no mentioned that house of PW 3 i.e. Hasrat Ali, is situated immediate north to the house of Akbar. The place wherefrom the khukuri was recovered has been shown in the sketch map to the south west from the place of occurrence and the house of the accused is shown south east from the place of occurrence. If, it is believed, that the house of PW 3 is situated immediate north to the house of the victim and the accused after inflicting injury came out of the house and ran towards south east. If, it is believed, that the house of PW 3 is situated immediate north to the house of the victim and the accused after inflicting injury came out of the house and ran towards south east. It is difficult to believe that PW 3, who proceeded towards the house of victim, hearing hue and cry met the accused along with a khukuri. 25. PW 4 Rabiza Khatoon stated that she along with her mother was sleeping in a room sharing in a common bed. In another room there were 2 (two) beds. Her father Abdul Jabbar and her brother Hasmat Ali were sleeping on one bed and on the other bed, Akbar was sleeping. At around 11.00 p.m., when she and her mother heard cry, they woke up and lit up a chaki and thereafter, went to the adjacent room. She could see the accused going out with a khukuri in his hand. We find it difficult to believe that the assailant after inflicting injuries on the deceased was present till PW 4 and her mother lit up chaki and entered into the room. We also find it difficult to rely on the evidence of PW 4, since her evidence is inconsistent with the evidence given by her brother (PW 12). PW 4 stated that Akbar was sleeping alone on a bed and her father, brother, Hasrat Ali were on the other bed, whereas PW 12, Hasmat Ali, stated that he along with Akbar and his father Abdul Jabbar were sleeping on the same bed. Akbar was sleeping in the middle. Similarly, PW 5 stated that Akbar sleeping on one bed and other bed was shared by her husband and Hasmat Ali. 26. PW 5 stated that at the relevant time there was darkness inside the room. She deposed that there was dispute over a plot of land occupied by Saidul whereas other witnesses deposed about quarrel with regard to proposal of marriage given by the accused. PWs 4 and 5 have not stated that there was no any such quarrel prior to the occurrence. 27. She deposed that there was dispute over a plot of land occupied by Saidul whereas other witnesses deposed about quarrel with regard to proposal of marriage given by the accused. PWs 4 and 5 have not stated that there was no any such quarrel prior to the occurrence. 27. Clause (1) of Section 32 of Evidence Act speaks that statement written or verbal of relevant fact made by a person, who is dead are themselves relevant fact, when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction that resulted in his death, in cases, in which the causes of death persons, comes in question. 28. The law with regard to the appreciation of the dying declaration is well settled. Before a conviction can be made on a dying declaration, the Court must be fully satisfied with the declaration is reliable, it was actually made by the deceased when he fully posses the power to understand implication of his or her statement and the same was made without any exterior influence or ulterior motive. In the case of Ram Bihari Yadav v. State of Bihar and others, (1998) 4 SCC 517 ; G.S. Walia v. State of Punjab and others, (1998) 5 SCC 150 , it was held that though dying declaration in direct evidence, it is exception to general rule against the admissibility of hearsay evidence. 29. In the case of Rajinder Singh @ Kada v. State of Punjab, (1992) Supp (3) SCC 13, the dying declaration was disbelieved since it was not certified by Medical Officer about the fitness of the deceased to make the statement. Similarly, in the case of Paparambaka Rosamma & Others v. State of Andhra Pradesh, (1999) 7 SCC 695 , the dying declaration was disbelieved on the ground that, the doctor's certificate attached to the dying declaration did not disclose that the person was conscious and was in a fit stage to make a statement. 30. Hear in this case, there is evidence of doctor, who found that the deceased sustained injuries on his neck and on sustaining such injury the person cannot be in a position to talk. The Investigating Officer also stated that the injured was not in a position to talk. 31. 30. Hear in this case, there is evidence of doctor, who found that the deceased sustained injuries on his neck and on sustaining such injury the person cannot be in a position to talk. The Investigating Officer also stated that the injured was not in a position to talk. 31. In view of above, we find that the evidence of witnesses with regard to dying declaration of the deceased cannot be relied upon. The identification of the accused by the witnesses is also doubtful, which we have discussed earlier. We, therefore, find that the accused is entitled to get the benefit of doubt. Accordingly, the appeal succeeds impugned conviction and the sentence is hereby set aside. The accused is acquitted and set at liberty forthwith, if, he is not wanted in any other case. We appreciate the valuable assistance rendered by Mr. Choudhury, learned amicus curiae and recommend that he is entitled to get fees for one day's hearing.