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2014 DIGILAW 558 (GAU)

Md. Saidul Islam and Anr. v. State of Assam

2014-05-23

B.P.KATAKEY, P.K.SAIKIA

body2014
Katakey, J. This appeal by two convicts is directed against the judgment of conviction dated 29.03.2010 passed by the learned Sessions Judge, Bongaigaon, in Sessions Case No.31(M)/2005, convicting them under Section 302/34 IPC and sentencing to suffer rigorous imprisonment for life and to pay a fine of Rs.2,000/- each, in default, to undergo further rigorous imprisonment for 1(one) month each, while acquitting the other accused, namely, Kohinur Khatun, Bahatun Begum, Ismail Hussain and Mohar Ali from the charges framed under Section 302/34 IPC. 2. A criminal investigation was set in motion on lodging of the first information report (FIR) by Sahar Ali (PW-7), with the Officer-in-Charge of Manikpur Police Station on 17.08.2001 alleging that on that date at about 6 P.M. while the informant’s younger brother Md. Iman Ali was coming from Nangla Market, his father-in-law, brothers-in-law and sisters-in-law confronted him on the road near his father-in-law’s house at Bashbari No.4 and dealt with the blows with daos and lathis on his person, as a result of which he fell unconscious, who, however, has subsequently died at about 8.30 P.M. at Manikpur Chariali, on his way to Manikpur Civil Hospital. Based on the said first information report, Manikpur P.S. Case No.50/2001 was registered under Section 302/147 IPC. 3. The police during investigation has visited the place of occurrence, recorded the statements of the witnesses acquainted with the facts and circumstances of the case under Section 161 Cr.P.C., prepared the sketch map of the place of occurrence, got the inquest of the dead body done and also sent the dead body for post mortem examination. On completion of the investigation, the police filed the charge-sheet against all the accused persons, namely, the present appellants and Kohinur Khatun, Bahatun Begum, Ismail Hussain and Mohar Ali, under Section 302/34 IPC. The case being exclusively triable by the Court of Sessions, the same committed to the Court of Sessions at Bongaigaon and accordingly Sessions Case No.31(M)/2005 has been registered. The learned Sessions Judge thereafter on 20.06.2005 framed charge against all the accused persons including the present appellants under Section 302/34 IPC, which when read over and explained to the accused persons, they pleaded not guilty and claimed to be tried. Hence the trial commenced. 4. The prosecution in order to bring home the charge against the accused, examined 13 witnesses, namely, Md. Mahiruddin (PW-1), Md. Afjal Hussain (PW-2), Md. Asgar Ali (PW-3), Md. Hence the trial commenced. 4. The prosecution in order to bring home the charge against the accused, examined 13 witnesses, namely, Md. Mahiruddin (PW-1), Md. Afjal Hussain (PW-2), Md. Asgar Ali (PW-3), Md. Lal Mia (PW-4), Siddique Ali (PW-5), Dr. Nabanindra N. Sarma (PW-6), Md. Sahar Ali (PW-7), Mustt. Anowara Begum (PW-8), Md. Bahazuddin (PW-9), Mustt. Adori Khatun (PW-10), Mahendra Kalita (PW-11), Satadal Deka (PW-12) and Chabin Deka (PW-13). The prosecution claims that PWs-1, 2, 8 and 10 have witnessed the occurrence. PW-7 was the first informant. PW-6 has conducted the autopsy on the dead body of the deceased and submitted the post mortem examination report. PW-12 was the Investigating Officer. PW-13 has conducted the inquest on the dead body of the deceased. After examination of the prosecution witnesses, the statements of the accused persons, including the accused appellants were recorded under Section 313 Cr.P.C. None of the accused persons, however, has examined any defence witness, despite the opportunity given. 5. The learned Sessions Judge, upon appreciation of the evidence on record, adduced by the prosecution, has convicted the present appellants under Section 302/34 IPC, while acquitting Kohinur Khatun, Bahatun Begum, Ismail Hussain and Mohar Ali from the charges levelled against them. The learned Sessions Judge has recorded the finding that though PWs-1 and 2 are claimed to be the eye witnesses, they have in fact not seen the occurrence. The learned Sessions Judge, however, has passed the judgment of conviction based on the evidence of PWs-8 and 10, who claimed to be the witnesses to the occurrence. 6. We have heard Ms. B. Choudhury, learned amicus curiae, who has been appointed vide order dated 20.05.2014 to defend the interest of the appellants, as the learned engaged counsel did not appear despite the opportunity given and their names reflected in the cause list. We have also heard Ms. S. Jahan, learned Addl. Public Prosecutor appearing for the State of Assam. 7. Ms. Choudhury, learned amicus curiae referring to the depositions of the PWs-1 and 2 and also the I.O., PW-12, has submitted that it is apparent from their depositions that PWs-1 and 2 have not seen the occurrence, they being not present at the time of occurrence, though they claimed to be so. 7. Ms. Choudhury, learned amicus curiae referring to the depositions of the PWs-1 and 2 and also the I.O., PW-12, has submitted that it is apparent from their depositions that PWs-1 and 2 have not seen the occurrence, they being not present at the time of occurrence, though they claimed to be so. It has also been submitted that PW-1 though in in-chief has claimed that he saw the occurrence while he was coming back from the market, during cross-examination, he has admitted that at the time of occurrence he was at his home taking care of his ailing wife. Similarly, PW-2 though claimed to be the witness to the occurrence, the defence could prove that he never claimed to be the witness to the occurrence in his previous statement made before the police under Section 161 Cr.P.C. The learned amicus curiae, therefore, submits that the version of PWs-1 and 2 could not be relied upon for the purpose of recording any conviction against the appellants. Ms. Choudhury referring to the depositions of PWs-8 and 10 further submits that it is evident from their evidence that there was enmity with the accused party as PW-8’s husband Sorab Ali is an accused in a case filed by the accused persons and PW-10’s father was an accused in another case instituted by the accused party. Referring to the evidence of PW-8, it has also been submitted that though this witness during her in-chief examination claimed that she saw Saidul inflicting a dao blow on the person of Iman Ali and thereafter Eusob dealt with a lathi blow on his head, during cross-examination she has admitted that after noticing Saidul giving the dao blow, she immediately fell down and became unconscious and she did not know what happened thereafter. Similarly, according to the learned amicus curiae, no conviction can be based on the evidence of PW-10, she having admitted during cross-examination that when the deceased came and asked Saidul to call her daughter, there was an altercation and thereafter she felt dizzy and fell down and did not see anything thereafter. It has also been submitted that though PWs-1, 2, 8 and 10 claimed to be the eye witnesses, none of these witnesses have supported the version of the other witness relating to their presence at the place of occurrence. It has also been submitted that though PWs-1, 2, 8 and 10 claimed to be the eye witnesses, none of these witnesses have supported the version of the other witness relating to their presence at the place of occurrence. The learned amicus curiae, therefore, submits that it is not safe to record conviction on the basis of the testimony of PWs-1, 2, 8 and 10, more so when PW-10 during cross-examination has admitted that she has made her statement before the learned Magistrate as tutored by her father, who is an accused in a case instituted by the accused party. 8. Ms. Jahan, learned Addl. Public Prosecutor, on the other hand, supporting the judgment of conviction recorded by the learned Sessions Judge, has submitted that even if the PWs-1 and 2 were not witnessed to the occurrence, the learned Sessions Judge has rightly recorded by the conviction based on the testimony of PWs-8 and 10, from whose evidence it is evident that Saidul inflicted the dao blow on the person of Iman, which resulted in the death of Iman, and Eusub Ali having shared the common intention of commission of such crime. The learned Addl. Public Prosecutor further submits that the learned Sessions Judge ought not to have rejected the testimony of PW-2, who has in clear terms implicated both the appellants to the commission of the crime and sharing the common intention. 9. We have considered the submissions advanced by the learned counsel appearing for the parties and also perused the records, including the evidence adduced and the judgment passed by the learned Sessions Judge. 10. Dr. Nabanindra N. Sarma (PW-6) has proved the injuries found on the person of the deceased Iman Ali, while conducting the post mortem examination. The injuries found on the body of Iman Ali are quoted below:- “(1) Five numbers deep incised wounds on posterior part of skull. (2) One deep wound with expulsion of brain matters on the skull. (3) One incised wound on the back of the left ear.” The doctor has opined that the death was caused due to shock and haemorrhage as a result of the injuries found, which are ante mortem in nature and the death is homicidal. The defence during cross-examination could not discredit this witness with regard to the injuries found and the cause of the death. The defence during cross-examination could not discredit this witness with regard to the injuries found and the cause of the death. The prosecution, therefore, could prove that it is a case of homicidal death. 11. The prosecution in order to prove the charge framed under Section 302/34 IPC, against the present appellants, has examined PWs-1, 2, 8 and 10, who claimed to be the witness to the occurrence. PW-1 in his in-chief examination though has claimed that he saw Saidul giving a dao blow on the neck of Iman Ali and saw accused Mohar, Eusob and Ismail assaulting Iman Ali with lathi, while he was coming back from Nangla Bazar at about 4 O’clock in the afternoon, during cross-examination he has admitted that at the time of the incident he was with his ailing wife nursing her with her children. This witness, therefore, has contradicted his own statement that he saw the incident while he was coming from the market. That apart, the suggestion was put to this witness, during cross-examination that he did not tell the police that on the date of occurrence when he was returning from Nangla Bazar at about 7 P.M., he heard about the incident from the other people, which, however, though has been denied by this witness, the defence during cross-examination of PW-12, the I.O., could prove his previous statement that he told the police that he was informed by other people about the incident after his return from the market at 7 P.M. PW-1 also during cross-examination has admitted that he had several law suits against the accused party for cutting the paddy and setting the house on fire. The Investigating Officer has also confirmed, during cross-examination, that this witness also did not tell the police that Saidul dealt a dao blow on Iman and accused Mohar, Eusub and Ismail had assaulted Iman with a lathi. From the aforesaid discussion it is, therefore, clear that he was not at the place of occurrence and he has tried to improve his version claiming to be an eye witness to the occurrence. The testimony of PW-1 is, therefore, not believable. 12. From the aforesaid discussion it is, therefore, clear that he was not at the place of occurrence and he has tried to improve his version claiming to be an eye witness to the occurrence. The testimony of PW-1 is, therefore, not believable. 12. PW-2, who, according to the prosecution, another witness to the occurrence, in his in-chief statement though has claimed that he saw the occurrence i.e. striking the dao blow by Saidul on the person of Iman Ali and giving the lathi blow by Mohar, Eusub and Ismail while he went out of his house on hearing the hue and cry, the I.O. during cross-examination has proved that he in his previous statement has disclosed that on hearing the hue and cry when he went out of his house, he found Ismail in a pool of blood surrounded by other villagers. The I.O. has also confirmed that this witness never disclose, in his previous statement, that he saw the occurrence. This witness has also admitted that his son Asuruddin is also an accused in a case relating to setting accused party’s house on fire and assault. 13. PW-8, Anowara Begum, who also claims to be an eye witness to the occurrence, in her examination-in-chief has stated that she saw Saidul hacking Iman Ali with a dao and Eusuf dealing with a lathi blow on his head. During cross-examination this witness, however, has stated that after seeing Saidul hacking Iman with a dao, she immediately fell down and became unconscious and thereafter did not notice what had happened. The version of this witness about her noticing Eusuf giving a lathi blow on the person of Iman, hence cannot be accepted. That apart, this witness has also admitted that her husband Sorab Ali is an accused in a case filed by the accused party. PW-10 who claims to be another witness to the occurrence, in her in-chief examination has stated that she saw Saidul dealing with 3 to 4 dao blows on the person of Iman and also Eusuf the lathi blow on Iman’s head. During cross-examination this witness, however, has contradicted herself by stating that when Iman (deceased) came and asked Saidul to call his daughter, who is in Saidul’s house, there was a mutual fight and then she felt dizzy and fell down and thereafter she did not see who did what. During cross-examination this witness, however, has contradicted herself by stating that when Iman (deceased) came and asked Saidul to call his daughter, who is in Saidul’s house, there was a mutual fight and then she felt dizzy and fell down and thereafter she did not see who did what. PW-10 has also stated during cross-examination that she gave a statement before the learned Magistrate implicating the accused party, as per the dictate of her father, who is an accused in a case instituted by the accused party. Though PWs-1, 2, 8 and 10 claimed to be present at the place of occurrence and saw the incident, none of them has deposed relating to the presence of each other, at the place of occurrence while the incident was going on. It makes the presence of these witnesses at the place of occurrence extremely doubtful. 14. In view of the aforesaid discussion, we are of the view that the prosecution has failed to bring home the charge framed under Section 302/34 IPC against the accused appellants, beyond all reasonable doubt. Hence the judgment of conviction dated 29.03.2010 passed by the learned Sessions Judge, Bongaigaon, is set aside. The accused appellants are set at liberty, if not wanted in any other case. 15. The State of Assam, in view of the provisions contained in Section 357-A Cr.P.C. as well as framing of the scheme, is directed to pay a sum of Rs.1,50,000/- to the children of the deceased in equal proportion within a period of 2(two) months from today. 16. The appeal is accordingly allowed, as indicated above. 17. Registry is directed to send down the records. 18. The learned amicus curiae shall be paid her professional fee of Rs.7,500/- by the State of Assam within a period of 1(one) month from today.