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2014 DIGILAW 290 (GAU)

Tashir Ali v. State of Assam

2014-03-11

B.P.KATAKEY, P.K.SAIKIA

body2014
JUDGMENT & ORDER (ORAL) Katakey, J. This appeal is directed against the judgment of conviction dated 28.1.2010 passed by the learned Addl. Sessions Judge, (FTC) Kamrup at Guwahati in Sessions Case No. 174(K)/2008 convicting the appellant under Section 302 IPC and sentencing him to undergo rigorous imprisonment for life and to pay fine of Rs. 10,000/-, in default to undergo rigorous imprisonment for one year, with a further direction that the entire amount of fine, if realized, shall be paid to the complainant as compensation under Section 357(c) Cr.P.C. 2. The criminal investigation was set in motion on making the GD entry on 1.9.2004 relating to discovery of the dead body of Amanur Ali. An FIR (Ext. 3) was thereafter lodged by the mother of the deceased Alema Khatoon, PW 3, alleging that on 1.9.2004 her son Amanur Ali and the appellant Tashir Ali though went to Juidhora hills together for collecting firewood, while Tashir Ali returned, Amanur Ali did not return, who has been killed by Tashir Ali and thrown him down from the top of the hill. The police thereafter registered Basistha Police Station case No. 218/2004 under Section 302 IPC and started the investigation, on completion of which, charge sheet (Ext. 5) was filed. 3. Since the case was exclusively triable by the Court of Sessions, the accused was committed for trial to the court of Sessions and accordingly Sessions case No. 174(K)/2008 was registered and tried by the learned Addl. Sessions Judge, (FTC), Kamrup at Guwahati. The charge under Section 302 IPC was, thereafter, framed against the appellant, which was when read over and explained to the appellant, he denied the same and claimed to be tried. Hence the trial commenced. 4. During the course of trial the prosecution, in order to prove the charge framed against the appellant, examined seven witnesses, namely, Sri Dipmoni Nath, the person who initially informed the police about the recovery of dead body of Amanur Ali, as PW 1, Md. Mejunur Ali, brother of the deceased as PW 2, Smti Alema Khatoon, mother of the deceased and who lodged the FIR (Ext. 3) as PW 3, Md. Abdul Khalek, a co-villager as PW 4, Sri Sintu Rajbongshi, another co villager as PW 5, Sri Sushil Saikia, the investigating office as PW 6 and Dr. Mejunur Ali, brother of the deceased as PW 2, Smti Alema Khatoon, mother of the deceased and who lodged the FIR (Ext. 3) as PW 3, Md. Abdul Khalek, a co-villager as PW 4, Sri Sintu Rajbongshi, another co villager as PW 5, Sri Sushil Saikia, the investigating office as PW 6 and Dr. BC Roy Medhi, the doctor who conducted the autopsy on the body of Amanur Ali as PW 7. The witnesses examined by the prosecution were cross examined by the appellant. The statement of the accused appellant under Section 313 Cr.P.C. was also recorded. No defence witness, however, has been examined by the accused appellant despite the opportunity given. The learned Addl. Sessions Judge upon consideration of the evidence adduced by the prosecution recorded the judgment of conviction as noticed above. Hence the present appeal. 5. We have heard Mr. G Singh, learned counsel appearing for the appellant as well as Mr. D. Das, learned Addl. Public Prosecutor appearing for the respondents. 6. Referring to the deposition of the witnesses examined by the prosecution it has been contended by Sri Singh, learned counsel for the appellant, that the theory of last seen together cannot be applied in the present case and the conviction cannot be based on the said theory as it has come out in the evidence that there was long gap between the time when they went to the hill for collecting firewood and the discovery of the dead body of Amanur Ali. It has also been submitted that the prosecution story relating to the recovery of dao, the alleged weapon of assault, also cannot be believed as no statement has been made by the accused appellant leading the police to recovery of the said weapon of assault and the dao has also not been produced before the court. The learned counsel, therefore, submits that the judgment of conviction based on the theory of last seen together and the recovery of dao at the instance of the appellant cannot be sustained in law. The learned counsel in support of his contention has placed reliance on the judgments passed by the Apex Court in the cases of State of Goa vs. Sanjay Thakran & anr. The learned counsel in support of his contention has placed reliance on the judgments passed by the Apex Court in the cases of State of Goa vs. Sanjay Thakran & anr. reported in 2007 3 SCC 755 , Sattatiya alias Satish Rajanna Kartala vs. State of Maharastra, reported in 2008 3 SCC 210 and Niranjan Panja vs. State of West Bengal, reported in 2010 6 SCC 525 . 6. Mr. Das, learned Addl. Public Prosecutor on the other hand supporting the judgment of conviction recorded by the learned Addl. Sessions Judge has submitted that it is apparent from the deposition of the witnesses examined by the prosecution in support of the charge that both the accused and the deceased were last seen together when they went to the hill for collecting firewood at about 9 A.M. on 1.9.2004 and the accused after his return from the hill has taken a false plea that the deceased was devoured by a tiger. It has also been submitted that having regard to the time gap between the time, when the accused and deceased went to the hill for fetching firewood, and making a statement before the PW 3 as well as PW 5 that the deceased has been devoured by a tiger, conviction can be based on the theory of last seen together, more so when the accused has taken a false plea. The Addl. Public Prosecutor submits that coupled with that conviction can also be maintained in view of the provision under Section 27 of the Evidence Act, the Investigating Officer having specifically stated on oath about the appellant leading the investigating officer to discovery of the weapon of assault namely the dao. The learned Addl. Public Prosecutor further submits that the explanation given by the accused appellant for not returning of the deceased from the hill is not supported by the medical evidence i.e. the post mortem examination report (ext. 6). Mr. Das in support of his contention has placed reliance on the decision of the Apex Court in Mohd. Arif Alias Ashfaq vs. State (NCT of Delhi) reported in (2011) 13 SCC 621 and of a Full Bench of this Court in Rajiv Phukan & Anr. vs. State of Assam reported in (2009) 2 GLT 414. 7. We have considered the submission made by the learned counsel for the parties and also perused the evidence on record. 8. Arif Alias Ashfaq vs. State (NCT of Delhi) reported in (2011) 13 SCC 621 and of a Full Bench of this Court in Rajiv Phukan & Anr. vs. State of Assam reported in (2009) 2 GLT 414. 7. We have considered the submission made by the learned counsel for the parties and also perused the evidence on record. 8. The factum of death of Amanur Ali as well as the injuries found on the person of Amanur Ali apart from the cause of death are not in dispute in the case in hand as the doctor who deposed relating to the same, namely PW 7, was not cross examined by the defence. The PW 7 has proved the post mortem examination report (Ext. 6) and has also deposed relating to the injuries found on the person of Amanur Ali, which are as follows : – “Injury : 1. One cut injury on the throat at the root of the neck 15 cm. x 5 cm. x neck cavity deep cutting the great vessel on both sides and trachea and use forces on both staro maslerd muscle. 2. 2. Abrasion with laceration found on forearm right side 3 x 6 cm. in size 15 cm above the elbow joint. 3. One cut injury 6 x 2 cm present over right shoulder joint. 4. One lacerated injury of the scalp over occipital region 4 x 6 cm in size”. The doctor has also opined that the injury Nos. 1 and 3 are caused by sharp cutting weapon and rests are caused by blunt weapon. The doctor has also opined that death was caused due to shock and haemorrhage as a result of the injuries caused by sharp cutting weapon and all the injuries are ante mortem and homicidal in nature. The time of death was also found to be 18 to 24 hours before conduct of post mortem examination. The said version of the doctor remains unchallenged and hence the homicidal nature of death of Amanur Ali because of the injuries found by the doctor, which are ante mortem, could be established by the prosecution. 9. The question, therefore, which requires determination, based on the evidence adduced by the prosecution, is whether the appellant is the author of the crime. 10. PW 2, Md. 9. The question, therefore, which requires determination, based on the evidence adduced by the prosecution, is whether the appellant is the author of the crime. 10. PW 2, Md. Mejunur Ali in his deposition has stated that on 4.9.2004 police took the accused person along who led them to Juidhora hill saying that he will be able to produce the dao, by means of which he had killed Amanur Ali and accordingly the accused led the police to discover the dao and the said dao has been seized by Ext. 2. PW 3 is also witness to the said seizure. Another witness to the seizure of the dao vide Ext. 2 is PW 5, who has deposed on the same line as that of PW 2. The investigating officer who has been examined as PW 6 in his deposition has also stated that on 4.9.2004 the accused led them to Juidhora hill in presence of witnesses when he told that he would be able to deliver the dao with which he had killed Amanur Ali and after making search the accused himself handed over the dao to PW 6. This witness has not stated anything relating to recording any statement made by the accused expressing his willingness to lead the police party to recover the weapon of seizure. PW 2 during cross examination has also stated that he has not seen the dao in the court which was seized vide Ext. 2. The investigating officer in his evidence has also not stated that the dao has been produced before the court and no material ext was also proved. 11. The Apex Court in Niranjan Panja (supra) has held that for effecting the discovery the statement of the accused showing his readiness to produce the material object is to be recorded and it is only that part of the statement which is not incriminating and leads to the discovery which becomes admissible. In the said case conviction recorded by the trial court, which was upheld by the High Court, has been set aside on the ground of non recording of statement of the accused as required to be recorded under Section 27 of the Evidence Act and for not giving explanation about the disappearance of the weapon of assault and for non production of the same before the court. In Mohd. In Mohd. Arif (supra), a Co-ordinate Bench of the Apex Court, referring to its earlier judgment in Suresh Chandra Bahri vs. State of Bihar, reported in 1995 Supp (1) SCC 80, has held that even if the discovery statement is not recorded in writing but there is definite evidence to the aspect of making a statement, under Section 27 of the Evidence Act by the investigating officer concerned, it can still be held to be a good discovery. A Full Bench of this Court in Rajiv Phukan (supra) has held that recording of statement under Section 27 of the Evidence Act, not though statutorily required, yet prudence demands that investigating officer should record at least that part of the statement which is likely to lead to discovery of a fact. 12. There are two essential requirements for the application of Section 27 of the Evidence Act, namely, that (i) the person giving information must be an accused of any offence and (ii) he must also be in police custody. Section 27 of the Evidence Act also provides that only “so much of information”, as relates distinctly to the fact thereby discovered is admissible. The investigating officer, however, must depose as to what exactly the accused had stated by him, even if such statement is not required to be reduced in writing. The probative value of such statement depends on facts and circumstances of the case. In the instant case, the investigating officer did not depose what was the exact statement made by the accused leading to discovery of the weapon of assault. Coupled with that the alleged weapon of assault has also not been produced. Hence the prosecution could not prove the ingredients of Section 27 of the Evidence Act so as to record the judgment of conviction in aid of information received from the accused leading to discovery of the weapon of assault. 13. The prosecution story is also based on the theory of last seen together. PW 3, mother of the deceased has, made a categorical statement that on 1.9.2004 at 9 A.M. the accused along with her son Amanur Ali left for Juidhora hill for collecting firewood. This witness has also stated that around 2 P.M. the accused came back and told her that Amanur Ali has been devoured by a tiger. PW 3, mother of the deceased has, made a categorical statement that on 1.9.2004 at 9 A.M. the accused along with her son Amanur Ali left for Juidhora hill for collecting firewood. This witness has also stated that around 2 P.M. the accused came back and told her that Amanur Ali has been devoured by a tiger. PW 4 has also stated that the accused has disclosed before them that Amanur Ali has been devoured by a tiger at Juidhora hills, so also by PW 5. These witnesses have not been cross examined by the defence relating to the aforesaid statement made by these witnesses and hence such statements go unrebutted. The prosecution, therefore, could prove the fact that the accused went to Juidhora hill with the accused for collecting firewood at about 9 A.M. on 1.9.2004, who came back alone at around 2 P.M. and took a false plea that the deceased had been devoured by a tiger. The time gap between 9 A.M. and 2 P.M. is only five hours and not that long so as to disbelieve the prosecution story and the theory of last seen together. The explanation given by the accused, on his return, is found to be false, which explanation is also not supported by the medical evidence as the fatal injuries found on Amanur Ali i.e. two cut injuries were found to have caused by sharp cutting weapon, which resulted in the death of Amanur Ali. 14. In Sanjay Thakran (supra) the Apex Court, endorsing its earlier view in Bodhraj vs. State of Jammu and Kashmir reported in (2002) 2 SCC 45, has opined that the theory of last seen together comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It has further been opined that if there is long gap and possibility of other persons coming between exists, in the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. It has further been opined that if there is long gap and possibility of other persons coming between exists, in the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. The Apex Court has further opined that there can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period. In Sattatiya (supra) the Apex Court has reiterated the factors to be proved to convict a person in aid of Section 27 of the Evidence Act. The said judgment has not been discussed in full in view of the discussion of the judgment in passed by the Apex Court in Sanjay Thakran (supra). 15. As discussed above, in the present case the prosecution could prove that it was the appellant alone who accompanied the deceased to the hill for fetching fire wood and the accused on coming back took a false plea that the deceased was devoured by a tiger. The prosecution witnesses were not cross examined on the statement relating to the theory of last seen together. Not even a suggestion was put to the effect that there were other persons present in the hill. The place of occurrence being forest hill the possibility of the presence of other person is very remote. The subsequent conduct of the appellant in making a false statement i.e. devour of Amanur by tiger also goes against the appellant. 16. In view of what has been discussed above, we are of the view that the learned Addl. Sessions Judge has rightly convicted the appellant under Section 302 IPC and sentenced him to undergo rigorous imprisonment for life and to pay fine. 17. The Appeal is accordingly dismissed. 18. The State on whom the duty is cast to protect the life and personal liberty of a person, which is a fundamental right, is directed to pay a sum of Rs. 1,00,000/- (Rupees one lakh) to the mother of the victim, who has suffered loss and injury as a result of the crime since the scheme has already been formulated by the State Govt. in that regard. 1,00,000/- (Rupees one lakh) to the mother of the victim, who has suffered loss and injury as a result of the crime since the scheme has already been formulated by the State Govt. in that regard. The said amount shall be deposited with the District Legal Services Authority, Kamrup at Guwahati within a period of two months from today and on such deposit the same shall be released in favour of Alema Khatoon, mother of the victim by account payee cheque drawn on any nationalized bank having branch at Guwahati. 19. A copy of this judgment and order shall be furnished to Mr. D Das, learned Addl. Public Prosecutor for onward transmission to the appropriate authority. 20. The Registry is directed to send down the records.