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2015 DIGILAW 521 (GAU)

Jalal Uddin Laskar v. State of Assam

2015-05-05

PRASANTA KUMAR SAIKIA, RUMI KUMARI PHUKAN

body2015
Rumi Kumari Phukan, J. 1. This appeal is directed against the judgment and order dated 29.03.2012 passed by the learned Sessions Judge, Cachar, Silchar in Sessions Case No. 181/2009 convicting the accused/appellant Md. Jalal Uddin Laskar (hereinafter referred to as accused person) for the offence u/s. 302 IPC and sentenced him to rigorous imprisonment for life and also to pay a fine of Rs. 5,000/- (Rupees five thousand) and in default of payment of fine, further rigorous imprisonment for 02(two) months. Being aggrieved and dissatisfied with the judgment aforesaid, the accused/appellant preferred this appeal from jail on the grounds that the learned Court below has not properly appreciated the evidence on record and has arrived at a conclusion of the guilt of the accused without any proper evidence against the accused/appellant. 2. The brief fact of the prosecution case is that on 31.08.2009 at about 5.30 a.m. while the deceased Nekjan Bibi @ Nekjan Begum was walking by the side of the road near her house at village Rajnagar along with her neighbor Asharun Bibi, the accused/appellant being armed with a dagger suddenly appeared before her and caught hold Nekjan Bibi and dragged her towards nearby Indira Abash Griha and dealt her several blows with the dagger on her person. The deceased sustained grievous injuries at her neck, stomach and other parts of her body and succumbed to the injuries so sustained by her at the spot and the accused fled away. Thereafter, the husband of the deceased Islam Uddin Laskar lodged the FIR with the Officer-in-Charge of Dholai Police Station. 3. On receipt of the FIR, the Officer-in-Charge of Dholai Police Station registered a case being Dholai P.S Case No. 249/2009 under Section 302 IPC and endorsed it to S.I Sri Nayanmoni Singha to complete the investigation. During the course of investigation, the Investigating Officer examined all the relevant witnesses and arrested the accused after three days of occurrence and on being led and shown by the accused person, weapon of offence was recovered and seized in presence of witnesses. On completion of the investigation, charge-sheet was submitted against the accused/appellant u/s.302 IPC. The accused faced the trial from inside the jail and after furnishing him necessary copies and after hearing both sides, charge u/s. 302 IPC was framed and explained to the accused/appellant, to which he pleaded not guilty and claimed to be tried. 4. On completion of the investigation, charge-sheet was submitted against the accused/appellant u/s.302 IPC. The accused faced the trial from inside the jail and after furnishing him necessary copies and after hearing both sides, charge u/s. 302 IPC was framed and explained to the accused/appellant, to which he pleaded not guilty and claimed to be tried. 4. To substantiate the charge, prosecution examined as many as 09(nine) witnesses and defence examined none. Plea of the defence is of total denial. On conclusion of the trial, the trial Court found the accused guilty u/s. 302 IPC and convicted and sentenced him as mentioned above. Challenging the said judgment, present appeal has been preferred on the ground that the learned Court below has not appreciated the matter as per law and procedure and it is liable to be set aside. 5. We have heard Ms. B. Choudhury, learned Amicus Curie appearing on behalf of the accused/appellant and also heard Mr. K.A. Mazumdar, learned Additional Public Prosecutor for the State. 6. It is the contention of the learned Amicus Curie that case is bad for non-examination of the children of the deceased who was alleged to be along with the deceased at the time of occurrence. Similarly the evidence of the eye witness PW-2 has been challenged that her evidence cannot be believed, she being a chance witness and has not seen the occurrence as she has stated in the cross examination that she did not see the accused while giving dagger blow to the deceased nor she saw the accused while dragging away the deceased. So according to the learned Amicus Curie for the appellant, her evidence is not reliable. Thus it has been argued by the learned Amicus Curie for the appellant that the evidence of the eye witness (PW-4) to the occurrence cannot be accepted being minor. On the other hand, the learned Additional Public Prosecutor, Assam has vehemently contended that there is absolutely nothing to disbelieve the evidence of the PW-2 and she can no way be termed as a chance witness because the chance witness generally not supposed to be present at the place of occurrence and the very presence of such witness is to be explained in due manner. But in the given case, the PW-2 is a next door neighbor of the deceased woman and she came out of her house seeing the deceased walking on the road. So her presence at the place of occurrence is very much natural. Regarding the contention raised by the learned Amicus Curie for the appellant that she is not an eye witness to the occurrence is also responded by the learned Additional Public Prosecutor, Assam that even though she was not present at the time of giving the dagger blow to the deceased as she went to inform the family of the deceased, but immediately on her return, she found that Nekjan died on the spot. Taking into account all the facts and circumstances there can be no other conclusion other than the fact that the accused is the perpetrator of the crime. 7. It is also contention of the learned Additional Public Prosecutor, Assam that while the Investigating Officer has examined sufficient number of witnesses including one of the son of the deceased in support of the case, than the non-examination of the other children of the deceased cannot be a ground to discard the positive evidence so adduced by prosecution. Thus according to the learned Additional Public Prosecutor, Assam, there is sufficient incriminating material against the accused/appellant to prove the charge from having of eye witness to the occurrence and recovery of weapon of offence from the possession of accused/appellant, the prosecution has discharged its liability to prove the charge u/s. 302 IPC and accused has been rightly convicted by the learned trial Court and there is nothing to interfere into the judgment. 8. We have given anxious consideration to the rival submissions of both the parties. Now, in view of the challenge of the appellant regarding the presence of the PW-2 which is a star witness to the occurrence, let us have a look at her evidence and also other facts and circumstances appear in this case. The said PW-2 in her evidence has stated that on the day of occurrence at about 6.00 a.m., while she saw the deceased along with her one daughter and one niece and coming towards their house, she also accompanied her as asked by the deceased. While they arrived on the point of the road, the accused/appellant suddenly arrived and caught holds Nekjan and dragged her away towards nearby Indira Abash Griha. While they arrived on the point of the road, the accused/appellant suddenly arrived and caught holds Nekjan and dragged her away towards nearby Indira Abash Griha. Though she tried to rescue Nekjan, but accused gave her a blow for which she fell down. Then she rushed to inform the husband of Nekjan Bibi and as soon as they arrived after a few while, the accused fled away. They found Nekjan lying dead at the place. She has categorically stated that she is the next door neighbor of deceased Nekjan Bibi. However, she did not see the accused while giving the fatal blow to the deceased Nekjan. Her evidence is found to be natural but she did not see the fatal blow given by the accused because at the moment she went to inform the husband of the deceased Nekjan. Her presence in the place of occurrence is quiet normal and is not at all doubtful. 9. It is to be noted that her evidence has been supported by all the relevant witnesses. The husband of the deceased Md. Islam Uddin (PW-1) has also stated that while he was ploughing at a little distance from his house, than hearing hue and cry on the side of the house, he ran towards his house and saw the accused who was dragging his wife with a dagger in his hand and PW-2 as well as his son and daughter were also behind their mother. Till he arrived at the place of occurrence, he found his wife Nekjan dead lying in the Indira Abash Griha with cut injury on her neck. So the evidence of PW-1 has also supported the evidence of PW-2 and though he did not see the accused while giving the blow but saw the accused dragging his wife towards Indira Abash Griha. His evidence is also pointing towards the fact that it was not other than the accused, who inflicted the injury to the deceased Nekjan resulting instantaneous death. 10. Further the prosecution has examined one another vital witness i.e. the son of the deceased and the informant namely Hussain Ahmed as PW-3 who has fully witnessed the whole occurrence before him. He has testified that on the day of occurrence in the morning time while he came out from his house, saw his mother gossiping with PW-2 and his sister. He has testified that on the day of occurrence in the morning time while he came out from his house, saw his mother gossiping with PW-2 and his sister. Then he saw the accused suddenly came out from his house and caught hold his mother and dragged her towards the Indira Abash Griha Raising hullah, he followed his mother and then he saw the accused giving blows with a dagger on the neck of his mother and other parts of the body. Then his mother fell down on the ground and the accused fled away. His evidence as an eye witness has fully corroborated all the facts as narrated in the FIR and the testimony of PW-1 and PW-2 as well. The defence except giving suggestion, has not even made any effective cross examination to this witness and as a result, his evidence remained unshaked. 11. On the next, we have found that there are some other important witnesses who have supported the facts and circumstances of the case in material aspect. PW-5 M.U. Laskar, who happened to arrived at the place of occurrence hearing hue and cry immediately after the occurrence and found the dead body of Nekjan with injury on her neck and he was reported by the PW-2 that accused/appellant has killed Nekjan Begum and then he himself informed the matter to police. His evidence itself supportive of the evidence of PW-2. 12. Another important witness is PW-7 S.U. Laskar, who is the brother of the deceased who has testified the fact that after apprehension of the accused while interrogated by police, the accused has led the police to recover the weapon of offence/dagger used in the commission of the offence. He has supported the seizure list made by the police about recovery of the weapon. According to him, police seized the dagger N(Ext. 1) on being led and produced by the accused. Though he is not a signatory to the seizure list, but has supported the same. 13. In the present case, it can be found that the Investigating Officer has proved the factum of leading the discovery of the weapon of offence as per terms of Section 27 of the Evidence Act. 1) on being led and produced by the accused. Though he is not a signatory to the seizure list, but has supported the same. 13. In the present case, it can be found that the Investigating Officer has proved the factum of leading the discovery of the weapon of offence as per terms of Section 27 of the Evidence Act. The Investigating Officer in his evidence has stated the fact that the accused after his apprehension has submitted that he can show the weapon of offence and accordingly he recorded the statement of the accused in the first person vide Ext. 7 and thereafter as shown by the accused vide Ext. 7, he recovered the dagger as led and shown by him and then he prepared the seizure list vide Ext. 8. So the requirement of the Section 27 of the Evidence Act is fully complied with. Though the statement of the accused made before police cannot be accepted, but the recovery portion as led and shown by the accused, can be accepted which is again an another vital evidence against the accused person. 14. We have also found from the evidence of the Medical Officer that the deceased sustained following injuries on her persons:-- (i) Cut throat injury extending right to the left above the level of 6 cervical vertebrae measuring into 10 x 6 into neck cavity depth. It was cutting across skin, muscle, nerves, artery, vains and the sub cutaneous tissues. (ii) Cut injury measuring 4 x 3 x 2.5 cms over the left deltoid region. (iii) Penetrating injury measuring (a) 3 x 2 cms x abdominal cavity depth, (b) 2 x 1 cm x abdominal cavity depth, (c) 2 x 2 cms x abdominal cavity depth with rayed margins touched midway between the xiphoid process and the umbilicus on the left side of the anterior abdominal wall. (iv) Cut injury found over the right middle portion of the back measuring 3 x 2 cms. According to the Medical Officer, the death was due to shock and hemorrhage following injuries sustained by the deceased as described under injury No. 1 and 2 and were caused by 7 sharp cutting weapon during life and were homicidal in nature. 15. Apparently the medical evidence fully supported the verbal evidence so adduced by the prosecution. According to the Medical Officer, the death was due to shock and hemorrhage following injuries sustained by the deceased as described under injury No. 1 and 2 and were caused by 7 sharp cutting weapon during life and were homicidal in nature. 15. Apparently the medical evidence fully supported the verbal evidence so adduced by the prosecution. The Investigating Officer, who immediately arrived at the place of occurrence, has also found the deceased with cut injury on her persons. It is also to be noted that the defence failed to prove anything contrary to the positive evidence on record neither by way of cross examination of the witnesses as well as the Investigating Officer about the recovery of weapon of offence at the instance of the accused, nor could raise any specific plea to resist the allegation. When called upon to explain the incriminating circumstances appearing against the accused/appellant at the time of examination u/s. 313 Cr.P.C., the accused/appellant failed to give any plausible explanation to the same. Though we found in this case that the motive behind the crime is not surfaced, but this cannot be a ground to reject the prosecution case which is otherwise established by way of cogent, convincing and positive evidence which has inspired the mind of the Court about the authenticity of the occurrence. The informant has admitted that the accused is his step brother and defence in his cross examination has suggested to PW-1 about the visiting of a third person to the house of informant which is, suggestive of fact that there may be some ill will or bad intention in the mind of the accused towards the informant and his family for which he has acted towards a ghast crime thereby taking a life of a woman having children. The offence was committed on the broad day light amongst the public locality and deceased was hacked to death in presence of her children and other witnesses after full preparation and with full knowledge and intention that the death is the ultimate result by such cut injury with a sharp cutting weapon. 16. Having regard to the evidence on record and other attending facts and circumstances as discussed above, it is found that the learned trial Court has rightly appreciated the matters on record and has hold the accused guilty u/s. 302 IPC. 16. Having regard to the evidence on record and other attending facts and circumstances as discussed above, it is found that the learned trial Court has rightly appreciated the matters on record and has hold the accused guilty u/s. 302 IPC. Accordingly, we are of the considered opinion that grounds of appeal bears no substance and it can be held that the charge u/s. 302 IPC is proved against the accused person beyond all reasonable doubt. 17. In the result, the appeal is found devoid of merit and hence dismissed. 18. Registry shall send down the LCR along with a copy of this judgment and order to the learned Court below. We appreciate the assistance rendered by Ms. B. Choudhury, the learned Amicus Curie in disposing the appeal and the State Legal Authority shall pay a sum of Rs. 7,000/- (Rupees seven thousand) as being the professional fees to the learned Amicus Curie within a period of three months from today.