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2013 DIGILAW 616 (GAU)

Md. Naser Ali v. State of Assam

2013-08-26

B.D.AGARWAL, INDIRA SHAH

body2013
JUDGMENT B.D. Agarwal, J. 1. The appellant herein has been convicted under Section 302 of the Indian Penal Code vide judgment dated 11.2.2010 passed by the learned Addl. Sessions Judge (FTC), Biswanath Chariali in Sessions Case No. 195 of 2006. After convicting the appellant for the offence of murder he has been sentenced to undergo imprisonment for life and to pay fine of Rs.1,000/- with default stipulation of further Simple Imprisonment for three months. Being aggrieved with the conviction the accused has preferred this appeal from jail. Heard Mr. R. De, learned Amicus Curiae for the appellant and Mrs. B. Bhuyan, learned Addl. PP, Assam. Also gone through the impugned judgment and the evidence of both the parties tendered in the trial court. 2. The prosecution case is that one day before the offence of murder a theft had taken place in the shop of the deceased and the FIR was lodged in the police station. As per the defence suggestion given to PW 5 the deceased was suspecting the hand of the accused in the theft and that was the motive for committing murder. At the relevant time the deceased was running a grocery shop in the house of PWs 2 and 5, who are father and daughter. On 27.7.2005 at about 9.00 p.m. the accused suddenly appeared in the shop of the deceased and dealt a 'Dao' blow on the neck of the deceased. The deceased died on way to hospital. 3. The FIR was lodged on the very next morning specifically naming the appellant, Naser Ali as the assailant. Besides this, PW 5 was named as eye witness of the incident. 4. The learned Addl. PP submitted that at about 9.30 PM on the same day of the incident the father of the deceased informed the police station verbally that Naser Ali killed his son with a Dao. This information was recorded in GD Entry No. 428. In this way the name of the assailant was disclosed within less than an hour of the incident. 5. Out of nine 9 (nine) witnesses PW 5, Smti. Malati Bawri is the eye witness of the incident and she knew the accused. This information was recorded in GD Entry No. 428. In this way the name of the assailant was disclosed within less than an hour of the incident. 5. Out of nine 9 (nine) witnesses PW 5, Smti. Malati Bawri is the eye witness of the incident and she knew the accused. PW 5 has deposed that on the relevant night the accused had come to her and asked for tobacco and then she told the accused that she did not have tobacco and she went to the grocery shop of the deceased. At the relevant time the deceased was sitting in a bamboo bench outside his shop. Suddenly, as per PW 5, the accused dealt a 'dao' blow on the neck of the deceased. 6. Except the omission before the I.O. about the story of asking about the tobacco PW 5 was not given any suggestion in the cross-examination that the accused has been falsely implicated in the offence nor the accused took any alibi that he never visited the village of the deceased or that he was in different village. On the other hand PW 5 was given a suggestion that the accused was suspected in the theft offence. In this way motive is also appearing in the evidence of PW5. 7. PW 2 is the father of PW 5. Hearing the outcry of his daughter he came running and saw the accused fleeing away. It is true that PW 2 did not notice any weapon in the hands of the accused. It may be so because it was night hours. Even otherwise, the accused was also named to PW 2 by his daughter. 8. PW 1 is the father of the deceased. He was reported about the incident by PW 5 specifically naming the appellant as an assailant. PW 3 is President of the VDP. He has also deposed that after the incident the accused was absconding for three days. PW 3 has also deposed that on being inquired by PW 5 she told him that the appellant had inflicted Dao blow upon the deceased. 9. No defence alibi was taken during the cross-examination of the prosecution witness. Despite that two witnesses were examined by the accused taking a plea that for about 3/4 days he had taken shelter in the house of DW 2 for cutting tree. 9. No defence alibi was taken during the cross-examination of the prosecution witness. Despite that two witnesses were examined by the accused taking a plea that for about 3/4 days he had taken shelter in the house of DW 2 for cutting tree. The evidence of DW 1 is totally unbelievable inasmuch he lived at a distance of one furlong from the house of the deceased. Besides this he has also given a new story deposing that the deceased had affair with PW 5 and only because of that PW 5 falsely implicated the appellant. However, this story was not suggested to any prosecution witness in the cross-examination. Even otherwise, PW 5 is a married woman of 50 years and the deceased was a young boy of 25 year old. 10. Similarly, DW 2 has also fumbled in the cross-examination. She has admitted that some time the deceased used to come to their house in the morning but he used to return in the night. 11. In view of the eye witnesses account as above, we find no difficulty to hold that the offence of murder was committed by the appellant and none else. As per the autopsy doctor an incised wound was inflicted on the neck cutting cervical vertebrae. 12. In view of above the conviction given by the learned Sessions Judge under Section 302 of the IPC is hereby affirmed. We also do not find any merit to modify in the sentence. 13. In the result the appeal stands dismissed. 14. The Government of Assam is directed to pay compensation amount of Rs.1,00,000/-(Rupees one lac) only to the family members of the victim, as provided under Section 357-A of the Criminal Procedure Code, 1973. The Government shall deposit the compensation amount in the Office of the learned Sessions Judge, Sonitpur Tezpur within a period of 2 (two) months from the date of receipt of a copy of this order. On receipt of the money the same shall be disbursed to the father of the deceased on proper identification and after obtaining proper receipt. 15. The Registry is directed to return the LCRs within a copy of this judgment. At the same time, the Registry shall forward a copy of this judgment to the Chief Secretary, Government of Assam for necessary action. We appreciate the assistance given by Mr. 15. The Registry is directed to return the LCRs within a copy of this judgment. At the same time, the Registry shall forward a copy of this judgment to the Chief Secretary, Government of Assam for necessary action. We appreciate the assistance given by Mr. R. De, learned Amicus Curie and he shall be entitled to one day's hearing fee.