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2014 DIGILAW 117 (GAU)

Gias Uddin @ Giyasuddin Ahmed v. State of Assam

2014-01-29

K.SREEDHAR RAO, P.K.SAIKIA

body2014
P.K. Saikia, J.:- 1. This appeal is directed against the judgment dated 27.1.2010 passed by the Sessions Judge, Barpeta in Sessions Case No.88/2007 convicting the accused/appellant Giasuddin ('the accused person') of offence under section 302, IPC and sentencing him to imprisonment for life and a fine of Rs.5,000 in default, R.I. for another 3 months for the offence aforesaid. 2. Being aggrieved by and dissatisfied with the aforesaid judgment, the accused has preferred this appeal citing several infirmities in the judgment under challenge. 3. The facts which emerge from the FIR dated 13.7.2006 are that on 13.7.2006 around 4.30. p.m. one KifatAli, the informant, came to know from one Atar Ali that Sahjahan Ali, son of the informant, was called by the accused person to his cloth store, situated at Madhuri Chowk (Pipli), Barpeta and then killed him by attacking him with a dagger. 4. Being so informed, he went to the place aforementioned and found his son lying dead at the place of occurrence. His bicycle as well as a bundle of cloths in the carrier of the bicycle was also found lying in front of the shop of the accused person. 5. An FIR to that effect on being lodged with the police same day, O/C, Patacharkuchi Police Station registered a case under section 302, IPC vide Patacharkuchi P.S. Case No. 153/2006 and he himself took up the investigation. 6. It may be stated that even before the receipt of the FIR by the O/C Patacharkuchi Police Station, accused Giasuddin went to Patacharkuchi Police Station, surrendered before the Police and confessed to have killed Sahjahan Ali of Manikpur subjecting him to dagger blows. On the basis of such statement, O/C Patacharkuchi police made a GD entry vide GU entry No.209. 7. During the course of investigation, the I/O visited the place of occurrence, held an inquest on the dead body and prepared a report in that connection. As the investigation covers more and more ground, he examined the witnesses, seized the clothes worn by the deceased, also seized one hero bicycle with one bundle of clothes in its carrier, having found such articles at the place of occurrence. 8. As the investigation covers more and more ground, he examined the witnesses, seized the clothes worn by the deceased, also seized one hero bicycle with one bundle of clothes in its carrier, having found such articles at the place of occurrence. 8. He also seized a dagger, allegedly used in committing the crime, on 14.7.2006 on being shown by accused person on the strength of seizure list Ext.-4 and on conclusion of the investigation, he submitted charge sheet under section 302, IPC against the accused person and forwarded him to court to stand his trial. 9. The Magistrate before whom the charge sheet was so laid, committed the case to the Court of Sessions since the offence under section 302, IPC is exclusively triable by the Court of Sessions. Learned Sessions Judge after commitment of the case and after hearing the learned counsel for the parties, framed charge under section 302, IPC and the charge, so framed, on being read over and explained to the accused person, he pleaded not guilty and claimed to be tried. 10. During trial, the prosecution side has examined as many as 15 witnesses including the informant and the I/O. The statement of the accused person under section 313, Cr.PC was recorded. Accused plea was of total denial. However, on being required, he declined to adduce any evidence of his own. 11. The learned Sessions on conclusion of trial and on hearing the arguments advanced by the learned counsel for the parties convicted the accused of offence under section 302, IPC and sentenced him to punishment as aforesaid. It is that judgment which has been assailed in the present appeal on grounds more than one. 12. Opening up of the argument on behalf of the accused/appellant, Mr. R. AH submits that the judgment, rendered by the trial Court is unsustainable in law since it suffers from several infirmities of extremely serious nature. In that connection, it has been pointed out that the most material witnesses, they being PW-1, PW-3, PW-5 and PW-9, did not support the prosecution case for which they were declared hostile to the prosecution. 13. In that connection, it has been pointed out that the most material witnesses, they being PW-1, PW-3, PW-5 and PW-9, did not support the prosecution case for which they were declared hostile to the prosecution. 13. Once the principal prosecution witnesses turned hostile to the prosecution, the very foundation of the prosecution case gets crumbled just like packs of cards and as such, learned trial court had gone wrong in concluding that the prosecution has proved the case against the accused person beyond all reasonable doubt. On this count alone, the prosecution case ought to have been rejected. 14. Secondly, it has been contended that the I/O reportedly seized a knife, 8" in length with handle, stained with blood. He also seized one hero bicycle with bundles of cloths on its carrier. He seized those articles on the strength of seizure lists Ext.4, Ext.5 and Ext.6. However, those seized articles were never produced before the court as required under the law during trial to confirm the prosecution case. 15. Since those seized the articles had huge connection with the crime in question and since those articles were said to have been seized during the course of investigation, non-production of those articles, and that too, without assigning any reason, whatsoever, is fatal to the prosecution case. On this count too, according to the learned counsel for the accused person, the prosecution case ought to have been rejected. 16. It is also the contention of the accused person that the seizure of a dagger, allegedly used in commission of the crime, was not made in accordance with the prescription of law. In that regard, it has been stated that the stories told and retold by the witnesses on the point of seizure of such an objects, differ drastically and such inconsistent evidence, in turn, shakes the very foundation of the prosecution case. 17. Learned counsel for the accused person again contends that one very important witness, namely, PW-11, keeps on improving his version on the episode in question as the case proceeds from stage to stage. Therefore, the evidence of PW-11, on whom the trial court places enormous reliance, needs to be rejected. Once the evidence of PW-11 is rejected, it would make the prosecution case more and more vulnerable. Therefore, the evidence of PW-11, on whom the trial court places enormous reliance, needs to be rejected. Once the evidence of PW-11 is rejected, it would make the prosecution case more and more vulnerable. On all those counts, the learned counsel for the accused/appellant submits this court to acquit the accused person of offence under section 302, IPC on setting aside the judgment under challenge. 18. On the other hand, learned Addl. P.P. Mr. K.A. Mazumdar, resisting such arguments, advanced from the side of appellant, contends that learned counsel for the appellant has founded his argument more on conjecture than on facts. Being so, this court should not place any reliance on the argument, so advanced from the side of accused/appellant. 19. According to him, though some witnesses turned hostile, though seized articles were not produced before the court during trial, though there were some inconsistencies in the evidence of PWs on the point of seizure of a dagger allegedly used in commotion of the crime, yet, those infirmities cannot cost the prosecution case, more so, when PW-10 and PW-11 very faithfully laid the foundation of the prosecution case. 20. It is also the case of the prosecution that PW-11 discloses some statements before the court during trial for the first time. But such disclosures by no stretch of imagination can be drabbed as contradiction to doubt the credibility of PW-11. According to learned Addl. P.P., the judgment, rendered by the learned trial court, therefore, invites no interference from this court of appeal and as such, he urges this court to dismiss the appeal on affirming the judgment of the trial court. 21. We have given our anxious consideration to the rival submissions, advanced by the learned counsel for the parties having regard to the evidence on record as well as the judgment under challenge. But before we proceed, we find it necessary to have a look at the evidence on record and the evidence of Doctor is first taken up for consideration. 22. The Doctor who conducted autopsy on the body of the deceased was Dr. Sanjib Kr. Sarkar who was examined as PW-7. According to him, on 13.7.2006, he was posted at Civil Hospital, Barpeta. On that day, he conducted the autopsy on the body of one Sahjahan Ali and found the following : "1. Penetrating injury of left lung. Blood and blood clot present. Sanjib Kr. Sarkar who was examined as PW-7. According to him, on 13.7.2006, he was posted at Civil Hospital, Barpeta. On that day, he conducted the autopsy on the body of one Sahjahan Ali and found the following : "1. Penetrating injury of left lung. Blood and blood clot present. Stab wound of elliptical shape 5 cm, below left armpit near posterior axillery fold 2cm x 5 cm in skin surface. It is horizontal oriented. No abrasion or bruise at the margin. The tract penetration the chest wall through 4th inter-costal space and penetrates the left lung. Blood and blood clot present around injured tissue and left chest cavity. 2. Stab wound of elliptical shape 2 cm x 5 cm in the skin surface of left side of abdomen 5 cm above the lateral to umbilicus and 8 cm. Below left nipple. It vertically oriented. The tract penetrates the abdominal wall and omentum comes out. Blood and blood clot present. 3. Incised wound 3 cm x 5 cm x 5 cm over right scapular region near inferior angle. Blood and blood clot present. 4. Incised wound 2.5 cm x 5 cm x 5 cm over left scapular region near inferior angle of scapular. Blood and blood clot present. The injuries described are ante-mortem and caused by sharp weapon object having a sharp cutting edge. In his opinion the PW-7 mentioned that the death of the deceased was due to haemorrhage and shock as a result of injuries sustained on his person. He has proved the P.M. report as Ext. 3 and his signature thereupon vide Ext. 3(1). 23. The evidence of doctor reveals that the deceased died a homicidal death occasioned by injuries on his person caused by sharp weapon. Now, the question is who caused the death of deceased on or around 13.7.2006. We have already found that though the prosecution has summoned several witnesses to support its claim that the accused was the author of the crime, under consideration, yet, most of those witnesses turned hostile leaving the burden of proving the case on PW-10 and PW-11 alone. 24. On perusal of the evidence of PW-10 Mr. Safiqul Ali, we have found that on the fateful day at about 4 p.m., he went to Madhuri Chowk. On arriving at such a place, he saw accused Giasuddin assaulting Sahjahan on the road by means of a dagger. 24. On perusal of the evidence of PW-10 Mr. Safiqul Ali, we have found that on the fateful day at about 4 p.m., he went to Madhuri Chowk. On arriving at such a place, he saw accused Giasuddin assaulting Sahjahan on the road by means of a dagger. Being so attacked, Sahjahan fell down on the ground and died instantaneously. Accused too withdrew himself from the P.O. soon thereafter. 25. After such incident, the accused surrendered before police at Patacharkuchi Police Station. It is also found evident from the testimony of PW-10 that Md. Atikur Rahman (PW-3) and Dr. Ashok Talukdar (PW-1), Md. Atar Ali (PW-11), Md. Nairn Ali (PW-13) and others were also present at the place of occurrence when the incident in question was going on. 26. In his cross-examination, he further clarified that Md. Atikur Rahman and Md. Rahim Ali were there in the vicinity of the place of occurrence when the incident in question was going on. The fact that the dead body of Sahjahan, was lying on the road near the shop of the accused person, has also been confirmed by PW-10 in his cross-examination. 27. PW-11 Md. Atar Ali @ Anwar Ali deposes that on the fateful afternoon at about 4 p.m., he was working in his cycle shop, situated at Madhuri Chowk, Barpeta. While he was so working, he heard hue and cry coming from the northern side. Looking at the direction from which such noise was coming, he saw the accused yielding a dagger in his hand. His brother Samir Ali tried to restrain him. He also saw Sahjahan Ali lying dead on the ground. 28. Blood was still coming out from the wounds on the body of the deceased. Dr. Ashok Talukdar, Rahim and Atikur were also there at that point of time. He also saw the brother of the accused taking away the knife from the hand of the accused person. Soon thereafter, the accused surrendered before the police. In his cross-examination, he confirmed that he had a shop at Madhuri Chowk which is situated at a distance of about 100 metres from the place of occurrence. 29. According to PW-11, the body of the deceased was lying at a distance of 20-25 feet from the shop of accused person. Soon thereafter, the accused surrendered before the police. In his cross-examination, he confirmed that he had a shop at Madhuri Chowk which is situated at a distance of about 100 metres from the place of occurrence. 29. According to PW-11, the body of the deceased was lying at a distance of 20-25 feet from the shop of accused person. The suggestion to the effect that (i) he went to the place of occurrence on hearing hue and cry (ii) he saw dagger in the hands of the accused person and (iii) Samir, brother of the accused person, restrained the accused were not stated to the police during the course of investigation was denied by PW-11. 30. PW-2 (Kifat Ali), father of the deceased deposes that on the fateful day Atar Ali (PW-11) informed him that his son Sahjahan was called by Giasuddin to his shop and thereafter, he had done him to death by inflicting wounds on his person with dagger. Being so, informed, he came to the place of occurrence riding a bicycle and saw his son lying dead by the side of the road in front of the shop of the accused person. 31. He also saw the bicycle of his son and bundle of clothes thereon lying in the veranda of the shop of accused person. He, therefore, lodged the FIR with the police which he proved as Ext.-l. During the course of investigation, the I.O. conducted an inquest on body of his son and prepared a report in that connection which he proved as Ext.2. In his cross-examination, he admitted that he did not know if his son was an informer of police. 32. PW-4 Ahmed Ali, a cultivator, deposes that on the fateful evening, he was in his shop. Someone told him towards the evening that Giasuddin had killed Sahjahan with a dagger. Then he ran to Madhuri Chowk which is situated at a distance of 20 feet from the shop of accused person. He saw Sahjahan lying dead at the place of occurrence with blood still coming out from the wounds on his body. 33. In the meantime, accused surrendered before the police at Patacharkuchi P.S. When he inquired him as to why he committed the crime, he said he could not say what he had done little before. In his cross-examination, he admitted that he did not witness the incident in question. 34. 33. In the meantime, accused surrendered before the police at Patacharkuchi P.S. When he inquired him as to why he committed the crime, he said he could not say what he had done little before. In his cross-examination, he admitted that he did not witness the incident in question. 34. PW-1 Dr. Ashok Talukdar and PW-3 Atikur Rahman, depose that they came to the place of occurrence after the incident in question was over. These two witnesses were declared hostile by the prosecution. PW-5 Md. Rahim Ali, PW-6, Sri. Hitesh Ch. Roy, PW-13 Md. Neim Ali, PW-14 Md. Mainul Hoque too depose that they came to the place of occurrence after the incident and saw the body of Sahjahan lying there with injuries on his body. 35. PW-8 Darik Das deposes that during the course of investigation, police seized a dagger on the strength seizure list Ext.4 whereas PW-9 Kulen Choudhury stated that on being required, he put his signature in the seizure list Ext.4. PW-12, Zakir Hussain, on the other hand, deposes that on 14.7.2006 while he was in Maduri Chowk, Barpeta, police came there taking the accused with them. 36. Thereafter, on being shown by the accused, police seized a knife from the field, not far away from the place of occurrence. In his cross-examination, he admitted that he did not know when and where Darik Das and Kulen Choudhury put their signature in the seizure list Ext.4. In his cross-examination, he further states that knife was recovered by Jamir Ali on being shown by accused person. 37. PW-15 is Sri Dipak Das who is the I.O of the case under consideration. According to him, the accused surrendered before him on the day of incident itself. He is also heard saying that the accused person confessed to have killed Sahjahan during the course of investigation. He recovered the weapon of offence on being shown by the accused person which he seized on the strength of seizure list Ext.-4 in presence of witnesses. 38. He also seized the blood stained clothes of deceased on the strength of seizure list Ext.-5. The bicycle of the deceased with a bundle of clothes thereon was also seized on the strength of seizure list Ext.-6. It is also his evidence that he conducted inquest on the dead body and prepared a report in that connection which he proved as Ext.-2. 39. The bicycle of the deceased with a bundle of clothes thereon was also seized on the strength of seizure list Ext.-6. It is also his evidence that he conducted inquest on the dead body and prepared a report in that connection which he proved as Ext.-2. 39. Above being the evidence on record, let us see how far such evidence makes out the allegations brought against the accused person. We have already found that prosecution heavily relies on the testimonies rendered by PW-10. As stated above, it is found from his testimony that at the time of incident, he was at the place of occurrence and saw Giasuddin assaulting the deceased with a dagger and he did so in front of his shop for which Sahjahan Ali fell down on the ground and died instantaneously. 40. Though PW-10 was cross-examined but nothing did emerge therefrom to show that what he states before the court during trial should not be believed for any reason whatsoever. Being so, his evidence can be relied on without any serious reservation or hesitation. More importantly, such evidence of PW-10 derives supports from the testimonies of other PW's- PW-2 and PW-11 in particular. 41. In that connection, it may be stated that there is indisputable evidence to show that (a) the shop of accused person is situated at Madhuri Chowk, Barpeta and (b) the deceased was found lying dead on the road in front of the shop of the accused person and (c) blood was still coming out from the wounds on the body of the deceased. 42. Such revelations, in the facts and circumstances of the case under consideration, support more and more the claim of PW-10 that the accused attacked the deceased at the place of occurrence with a dagger for which he fell down on the ground and died there instantaneously. 43. In his evidence, the Doctor had stated that the deceased sustained as many as 4 incised wounds on various part of his body which occasioned his instantaneous death. The evidence of doctor, therefore, again supports the testimony of PW-10 as far as nature of the weapons, used in committing such crime as well as nature of death which the deceased met on the fateful afternoon. 44. We have already found that there is unquestionable evidence to show that the accused surrendered before police soon after the alleged incident. The evidence of doctor, therefore, again supports the testimony of PW-10 as far as nature of the weapons, used in committing such crime as well as nature of death which the deceased met on the fateful afternoon. 44. We have already found that there is unquestionable evidence to show that the accused surrendered before police soon after the alleged incident. The surrender of the accused before the police sometime after the incident in question, and that too on his own volition, in the facts and circumstances of the present case, goes a long way to show that the accused, and none else, was the author of the crime in question. 45. One may note here that there is evidence in the form of testimony of the PW-15 which shjws that the I.O. had seized the blood stained knife on 14.7.2006 from the field on being shown by accused person on the strength of seizure list Ext.4. Such seizure was made from a place not far away from the place of occurrence. We have already found that the recovery of knife from a place not far away from a place of occurrence, and that too at the behest of the accused person. 45 (a). The recovery of the knife form the place of occurrence also at the behest of the accused person has again served to show that the incised wounds which the Doctor found on the body of the deceased and which occasioned his instantaneous death were caused by none other than the accused person. The fact that the bicycle of the deceased with clothes thereon were seized from the place of occurrence lends more and more credence to the prosecution case that the accused hit and killed the deceased in front of his shop on 13.7.2006. 46. The prosecution has, however, come under sharp criticisms for reasons more than one. In the first place, it has. been stated that there were some inconsistencies in the evidence, rendered by PWs over the seizure of weapon of offence. In that connection, it has been pointed out that all the seizure witnesses also did not speak in one voice as far as seizure of weapon is concerned which makes the prosecution case enormously doubtful- argues the learned counsel for the appellant. 47. In that connection, it has been pointed out that all the seizure witnesses also did not speak in one voice as far as seizure of weapon is concerned which makes the prosecution case enormously doubtful- argues the learned counsel for the appellant. 47. On reading the evidence on record in between the lines, we have found that some inconsistencies do exist the testimonies of PWs as far as seizure of weapon of offence is concerned. But then, such inconsistencies are found to be too insignificant so as to wash away the entire evidence of witnesses, more particularly, PW-10, PW-11 and PW-15 which is otherwise found to be very convincing and very truthful. 48. It has also been contended on behalf of the appellant that there is evidence to show that police seized knife from the vicinity of the place of occurrence on 14.7.2006 whereas it seized blood stained cloths of the deceased as well as his bicycle with clothes thereon from the P.O. on 13.7.2006 itself. The production of those articles during trial would have gone along with in making out the allegations, leveled against the accused person. 49. Unfortunately, such vital items were not produced, and that too, without any valid reason. Non-production of those articles during the course of trial, therefore, raises a serious doubt about the entire prosecution case. On this count alone, the prosecution case needs to be thrown over-board - argues learned counsel for the appellant. 50. It is true that seized articles were not produced before the court during trial. But then, one must not be oblivious to the fact that there is overwhelming evidence on record to show that the police seized the articles aforesaid during the course of investigation. Therefore, non-production of those articles no-way causes any adverse impact on the prosecution case. 51. We have found that two main witnesses, namely, PW-1 and PW-3, turned hostile since they are heard saying that they came to the place of occurrence only after incident in question was over. The appellant, therefore, contends that when the principal witnesses turned hostile, it will be totally unsafe to rely on the testimonies of other witnesses who are not central figures to the case under consideration. Such an argument is, however, found to be without any substance. 52. It is true that two very vital witnesses turned hostile. The appellant, therefore, contends that when the principal witnesses turned hostile, it will be totally unsafe to rely on the testimonies of other witnesses who are not central figures to the case under consideration. Such an argument is, however, found to be without any substance. 52. It is true that two very vital witnesses turned hostile. But they were not only prime witnesses in the case under consideration. There were other witnesses too who claimed to have seen the aforesaid incident, and that too, while such incident was still going on or came to an end little before. They are PW-10 and PW-11. The two witnesses are already found to be very truthful witness and the stories, they told and retold in various stages in the course of case, under consideration, are, therefore, found to be enormously convincing. 53. Therefore, only for aforesaid two witnesses going hostile, the entire prosecution case cannot be thrown overbroad. Quite contrary to it, their going hostile to the prosecution only serves to show that these two PWs are not interest in telling the truth for reasons best known to them for which they declared hostile. Thus, in our opinion, the prosecution case does not suffer for the infirmity, stated above. 54. The prosecution case was also attacked on the ground that the evidence of prime prosecution witnesses, more particularly, PW-11, is riddled with contradictions of extremely serious nature. In that connection, it has been pointed out that in his evidence, PW-11 has stated that when he arrived at the place of occurrence, he saw the deceased lying injured on the road and also saw the accused yielding a dagger in his hand. 55. He also% saw his brother Samir Ali trying to take away the knife from the hand of the accused person. However, he did not divulge such vital statements, said to be very vital, according to the learned counsel for the appellant, to the I.O., while he was examined as per the provisions of section 161, Cr.PC. On the perusal of the evidences on record, in is found that it is true that the PW-11 did not divulge aforesaid statements while being examined under section 161, Cr.PC. 56. But then, he offers very plausible explanation as to why he did not divulge such statement to the I.O. while he was examined under section 161, Cr.PC. On the perusal of the evidences on record, in is found that it is true that the PW-11 did not divulge aforesaid statements while being examined under section 161, Cr.PC. 56. But then, he offers very plausible explanation as to why he did not divulge such statement to the I.O. while he was examined under section 161, Cr.PC. According to him, the I.O. never ask him to give any information on those matters which is why he did not disclose all those matters to the I.O. In view of above, we are of the opinion that those non-disclosure of those information to the I.O. during the course of investigation is not at all fatal to the prosecution case. 57. One may note here that only those statements which are fundamentally different and which cannot co-exist can be treated as contradictions to doubt the credibility of the prosecution witnesses. However, in our present case that the statements, which are alleged to be contradictions within the meaning of contradictions as contemplated in section 162, Cr.PC, by stretch of imagination, can be said to be contradictions as understood under the law. Therefore, the infirmity above, no way takes the wind out of the sail of the prosecution side. 58. Even if we assume for the sake of the arguments for a moment that the evidence of PW-10 needs to be discarded for it being afflicted with some contradictions, yet, in view of our forgoing discussions, it is found that prosecution has successfully established its case against the accused person even without being supported by PW-11. Our forgoing discussion has made it more than clear and it needs no further reiterations here. 59. Situation being such, we are of the opinion that the prosecution has proved the charge under section 302, IPC against the accused person and as such, the learned trial court committed no wrong, whatsoever, in either convicting the accused person under the aforesaid provision of law or sentencing him to punishment as aforesaid. 60. In the result, the appeal is dismissed on affirming the judgment of the trial court. 61. Send down the LCR forth with.