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2014 DIGILAW 490 (GAU)

Saleh Ahmed v. State of Assam

2014-05-06

B.P.KATAKEY, INDIRA SHAH

body2014
(ORAL) [Katakey, J.] This appeal, by the convict, is directed against the judgment of conviction dated 06.10.2010 passed by the learned Sessions Judge, Sonitpur at Tezpur, in Sessions Case No.166/2005, convicting the appellant under Section 302 IPC and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for a further period of 2(two) months. 2. A criminal investigation was set in motion based on an FIR lodged on 25.01.2005, on the basis of which Jamuguri P.S. Case No.10/2005 under Section 341/302/109/34 IPC was registered. The prosecution story is that Md. Jalaluddin (PW-3) on 25.01.2005 has lodged an FIR alleging that on that date at about 10 A.M. while his elder brother Jainal Sheikh (the deceased) along with his daughter Jyotshnara Khatun @ Begum (PW-4) and son Md. Ismail Hussain (PW-2), aged about 12 years and 8 years, respectively, was carrying stone chips in the gunny begs on his bicycle from the nearby Jiya Bharali river to the Dighali Chapari Masjid, the accused appellant along with Md. Nur Mohammad Ali and Md. Iddrish Ali waylaid him in an isolated place near the Jiya Bharali river, out of a previous grudge and killed him by inflicting blows on different parts of his body such as neck, head etc. with sharp weapon. The police after registration of the case has visited the place of occurrence, recorded the statements of the witnesses, who are acquainted with the facts and circumstances of the case, under Section 161 Cr.P.C., conducted the inquest and sent the dead body for post mortem examination. Upon completion of the investigation, charge-sheet under Section 302 IPC was filed against the accused appellant alone. The case being exclusively triable by the Court of Sessions, the learned Magistrate vide order dated 20.07.2005 committed the case for trial to the Court of Sessions and accordingly Sessions Case No.166/2005 has been registered and numbered. The learned Sessions Judge on 16.08.2005 framed the charge under Section 302 IPC against the accused appellant, which when read over and explained to him, he pleaded not guilty and claimed to be tried. Hence the trial commenced. 3. The prosecution in order to bring home the charge against the accused appellant has examined 8(eight) witnesses, namely, Sri Moti Acharjee (PW-1), the witness to the inquest report (Ext.-1) as well as the seizure memo (Ext.-2); Md. Hence the trial commenced. 3. The prosecution in order to bring home the charge against the accused appellant has examined 8(eight) witnesses, namely, Sri Moti Acharjee (PW-1), the witness to the inquest report (Ext.-1) as well as the seizure memo (Ext.-2); Md. Ismail Hussain (PW-2), son of the deceased, who accompanied him and claims to be the eye witness; Md. Jalaluddin (PW-3), who according to the prosecution lodged the first information report and the brother of the deceased, who also claims to be an eye witness; Smt. Jyotshnara Begum (PW-4), daughter of the deceased and who also accompanied the deceased and another eye witness to the occurrence; Md. Muslem Uddin (PW-5), another witness to the inquest; Md. Mainul Haque (PW-6), who claims to have seen the accused appellant running away from the place of occurrence with a dagger in his hand; Sri Dilip Bharali (PW-7), the Investigating Officer and Dr. Apurba Kr. Sarmah (PW-8), who conducted the autopsy on the dead body of Jainal Sheikh. The prosecution witnesses were duly cross-examined by the accused appellant. The statement of the accused appellant under Section 313 Cr.P.C. was also recorded. The accused appellant, however, did not examine any defence witness despite the opportunity given. 4. The learned Sessions Judge, upon appreciation of the evidence adduced by the prosecution in support of the charge framed against him, convicted him under Section 302 IPC and sentenced him, as noticed above. Hence the present appeal. 5. We have heard Dr. B. Ahmed, learned counsel for the appellant and Mr. D. Das, the learned Addl. Public Prosecutor, Assam appearing for the respondent. 6. Dr. Ahmed, the learned counsel appearing for the appellant challenging the judgment of conviction recorded by the Trial Court and referring to the evidence of the prosecution witnesses, more particularly of PW-3, has submitted that it is evident therefrom that the PW-3 has admitted, during cross-examination, that he lodged the written FIR not on the date of occurrence i.e. on 25.01.2005, but on the next day morning i.e. on 26.01.2005 and hence the FIR which has been exhibited as Ext.-3 dated 25.01.2005 was not the written FIR lodged by the PW-3. The learned counsel submits that the prosecution, for the reason best known to them, has withheld the FIR lodged on 25.01.2005 from the Court. The learned counsel submits that the prosecution, for the reason best known to them, has withheld the FIR lodged on 25.01.2005 from the Court. It has also been submitted that the version of PW-3 has rendered the prosecution story of lodging the FIR by PW-3 on 25.01.2005 doubtful, as the PW-3 did not support the prosecution case of lodging the FIR by him on 25.01.2005. The learned counsel further submits that though according to PW-3, he first informed the police verbally about the incident, the same, however, has not been supported by PW-7 Dilip Bharali, the Investigating Officer and no G.D. Entry recorded based on the verbal information has been proved by the prosecution. The learned counsel, therefore, submits that the very basis for setting the criminal investigation in motion, being withheld by the prosecution from the Court, it renders the prosecution story doubtful, benefit of which must go to the accused appellant. 7. Referring to the deposition of PW-3, it has also been submitted by Dr. Ahmed that though in his evidence he has claimed that he saw the occurrence from his house, which is about half a kilometer away from the place of occurrence, he, however, did not say so in his statement recorded by the police under Section 161 Cr.P.C., which renders his version before the Court doubtful. The learned counsel further submits that PW-3 even did not support the contents of the alleged FIR being Ext.-3. Dr. Ahmed further submits that the evidence of PWs-2 and 4, who are child witnesses, also should not be believed, as from the date of occurrence to the date of recording their statements in Court there is a gap of about 1½ years and they being under the care and custody of their mother, there is every likelihood of being tutored by the mother, because of the previous enmity i.e. implicating the accused appellant in a case of dacoity, where they have been acquitted. The learned counsel, therefore, submits that based on the evidence of PWs-2, 3 and 4, it is not safe to convict the accused appellant, as has been done by the learned Sessions Judge. 8. Per contra, Mr. Das, learned Addl. The learned counsel, therefore, submits that based on the evidence of PWs-2, 3 and 4, it is not safe to convict the accused appellant, as has been done by the learned Sessions Judge. 8. Per contra, Mr. Das, learned Addl. Public Prosecutor, supporting the judgment of conviction recorded by the learned Sessions Judge, has submitted that it is apparent from the evidence of PW-7, the I.O. that PW-3 lodged the FIR on 25.01.2005, which has been proved and marked as Ext.-3 and hence there is no doubt about lodging of FIR being Ext.-3 by PW-3. It has also been submitted that PW-3, may be by mistake, has mentioned the date of lodging the FIR as 26.01.2005 instead of 25.01.2005. That apart, according to the learned Addl. Public Prosecutor, it is evident from the depositions of PWs-2 and 4, who were found to be capable of administering oath, that it was the accused appellant, who has inflicted the blows by means of a dagger on the person of the deceased i.e. their father and on the face of such evidence on record, the learned Sessions Judge has rightly convicted the accused appellant, even though the PW-3 may not be the eye witness to the occurrence. 9. We have considered the submissions advanced by the learned counsel appearing for the parties and also perused the evidence adduced by the prosecution in support of the charges framed against the accused appellant. We have also gone through the judgment passed by the learned Sessions Judge. 10. The prosecution through Dr. Apurba Kr. Sarmah (PW-8), who conducted the autopsy on the dead body of Jainal Sheikh, has proved the post mortem examination report, which has been marked as Ext.-7, as well as the injuries found on the person of the deceased, which are as follows:- “Multiple sharp cutting injuries were found as follows: (i) Two on the forehead sized about (4 cm x 2 cm x 1 cm) each. (ii) Four sharp cut injuries on the back of the neck sizes about (4 cm x 3 cm x 2 cm), (3 cm x 2 cm x 1 cm), (3 cm x 1 cm x 1 cm) and (3 cm x 1 cm x 1 cm). Big vessels and the muscles in the neck were found cut and profuse bleeding from the wound. Multiple nos. of various cut injuries of sized found on the back. Big vessels and the muscles in the neck were found cut and profuse bleeding from the wound. Multiple nos. of various cut injuries of sized found on the back. On the lateral aspect of right ankle joint (3 cm x 1 cm x 1 cm). Bruises of various size present. Abdominal peritoneum was found congested.” The doctor has opined that all the injuries found on the body of the deceased are antemortem in nature and the death was caused due to severe haemorrhage and shock following the injuries sustained by him. The defence during cross-examination did not challenge the injuries found on the body of the deceased as well as the cause of the death of the deceased because of the injuries sustained. The prosecution, therefore, could prove that it is a case of murder. 11. The question which requires consideration by the Court is whether the prosecution could prove the complexity of the accused appellant with the commission of the crime, beyond all reasonable doubt. 12. As noticed above, the prosecution story is based on an FIR lodged on 25.01.2005, which according to the prosecution was lodged by the PW-3. Md. Jalaluddin (PW-3), however, did not support the prosecution case about lodging of an FIR by him on 25.01.2005, as during his cross-examination he has specifically stated that he never lodged any written FIR on 25.01.2005, but he lodged one written FIR on 26.01.2005 i.e. the next day of occurrence at about 9 A.M. The prosecution, however, did not re-examine this witness or examine the person, who was accompanying PW-3 to lodge the FIR, to support its case that the PW-3 lodged the FIR on 25.01.2005, which has been marked as Ext.-3. It renders the prosecution story doubtful relating to lodging of FIR (Ext.-3) on 25.01.2005 by the PW-3, as PW-3, as noticed above, in clear terms has stated that said FIR was not lodged by him on 25.01.2005. The prosecution has withheld the FIR lodged based on which the investigation has been carried out by the I.O.(PW-7). 13. It renders the prosecution story doubtful relating to lodging of FIR (Ext.-3) on 25.01.2005 by the PW-3, as PW-3, as noticed above, in clear terms has stated that said FIR was not lodged by him on 25.01.2005. The prosecution has withheld the FIR lodged based on which the investigation has been carried out by the I.O.(PW-7). 13. PW-3, who claims to have seen the occurrence from his house and deposed that it was the accused appellant who inflicted the blows on the person of the deceased by a sharp cutting weapon, cannot be believed, as he has not stated so in his statement recorded by the police under Section 161 Cr.P.C. The Investigating Officer, Sri Dilip Bharali (PW-7), during his examination has also confirmed the same. 14. The evidence of PW-6 Mainul Haque that he saw the accused running away from the place of occurrence with a dagger in his hand, is also not believable, as in his statement recorded under Section 161 Cr.P.C. he did not say so and instead he has deposed that it was reported to him that the deceased was killed. The prosecution story is, therefore, rest on the evidence of two witnesses, namely, Ismail Hussain (PW-2) and Jyotshnara Begum (PW-4), who were admittedly at the time of occurrence below 12 years of old. However, PW-4 was more than 12 years of age on the date of her examination in Court. Though PWs-2 and 4 have stated in Court that they saw the accused appellant inflicting the blows, by means of a dagger, on the person of the deceased i.e. their father, it also appears from the evidence of the prosecution witnesses, namely, PW-3 that there was previous enmity between the parties, as the accused appellant along with others were implicated in a case of dacoity by the deceased, in which they were acquitted. It is also in evidence that both these witnesses, being PWs-2 and 4, were in care and custody of their mother, from the date of occurrence till the date of their examination in Court. There is, therefore, possibility of they are being tutored so as to implicate the accused appellant. 15. The Investigating Officer (PW-7) in his deposition has stated that he has carried out the investigation based on an FIR lodged on 25.01.2005. There is, therefore, possibility of they are being tutored so as to implicate the accused appellant. 15. The Investigating Officer (PW-7) in his deposition has stated that he has carried out the investigation based on an FIR lodged on 25.01.2005. PW-3 has stated in his evidence that he never lodged any FIR on 25.01.2005, which, however, was lodged on 26.01.2005. Since the Investigating Officer has started the investigation, based on a written FIR dated 25.01.2005, the prosecution is required to prove the said FIR, which has not been done. From the evidence of PW-3 it appears that the FIR (Ext.-3), wherein date 25.01.2005 was put, was never lodged by him on that date but lodged on 26.01.2005. It is, therefore, clear that there was another FIR lodged on 25.01.2005, which has been withheld from the Court. The prosecution also did not prove any G.D. Entry, based on the verbal information given by PW-3. The very basis for initiation of the criminal investigation has become doubtful. 16. In view of the above, we are of the view that it would not be safe to record conviction of the accused appellant under Section 302 IPC. The accused appellant is entitled to the benefit of doubt. Hence the judgment of conviction dated 06.10.2010 passed by the learned Sessions Judge, Sonitpur at Tezpur, in Sessions Case No.166/2005, is set aside. The accused appellant is directed to be released from custody, if not wanted in any other case. 17. The State Government, in view of formulation of the scheme under Section 357-A Cr.P.C., would pay a sum of Rs.75,000/- to the PWs-2 and 4, the dependant children of the deceased, in equal proportion, within a period of 1(one) month from today. The said amount shall be deposited with the District Legal Services Authority, Sonitpur at Tezpur, which shall then be released in favour of the aforesaid persons by account payee cheques, in equal proportion. 18. The appeal is accordingly allowed. 19. Registry is directed to send down the records.