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2016 DIGILAW 1096 (GAU)

FAKHAR UDDIN (MD) v. STATE OF ASSAM

2016-12-07

AJIT SINGH, MANOJIT BHUYAN

body2016
JUDGMENT : Manojit Bhuyan, J. This appeal by Md. Fakhar Uddin is preferred against the judgment and order dated 12.03.2014 passed by the learned Sessions Judge, Karimganj in Sessions Case No. 40/2011 convicting the appellant under Section 302/34 IPC and awarding sentence to undergo rigorous life imprisonment together with fine and default stipulation. 2. As per the case of the prosecution, on 06.04.2010 at about 7.30 P.M. while the deceased Abdul Malik was returning home from Gholcherra Bazar, the appellant along with some others assaulted Abdul Malik with sharp weapons causing instantaneous death. The elder brother of the deceased, namely, Abdun Noor (PW-1) submitted ejahar (Ext. 1) on 08.04.2010 relating to the incident before the R.K. Nagar Police Station. Upon receipt such report, a case under Sections 341/302/34 IPC was registered and investigation pertaining to the same also commenced. Post-Mortem was performed on the dead body, necessary memos were drawn and statements of witnesses were recorded. The appellant was apprehended and upon completion of the investigation, charge sheet was filed. 3. During trial, the prosecution examined 11 (eleven) witnesses including the Medical Officer who had conducted the Post-Mortem examination as well as the Investigating Officer. The appellant was examined under Section 313 CrPC and was also heard on the point of sentence. 4. Mr. S.C. Biswas, learned counsel representing the appellant submits that the depositions of eye witnesses Abdun Noor (PW-1), Abdul Ahad (PW-4) and Asad Uddin (PW-5) are neither consistent nor can be believed and, therefore, their depositions have been wrongly relied upon by the Court below for the purpose of convicting the appellant. Mr. Biswas submits that in the absence of eye witnesses, the standard of proof required to convict the appellant on circumstantial evidence, do not find established. According to him, the appellant could not have been convicted on mere hypothesis and on suspicion without the prosecution being able to conclusively prove that the appellant alone is the perpetrator of the crime in question. 5. To test the arguments advanced by Mr. Biswas, having regard to the materials on record, the following circumstances are noticed. 6. Abdun Noor (PW-1) is the elder brother of the deceased. He deposed that on 06.04.2010 he was proceeding towards the village mosque for performing 'namaz' along with the son of his paternal uncle. 5. To test the arguments advanced by Mr. Biswas, having regard to the materials on record, the following circumstances are noticed. 6. Abdun Noor (PW-1) is the elder brother of the deceased. He deposed that on 06.04.2010 he was proceeding towards the village mosque for performing 'namaz' along with the son of his paternal uncle. As he was about to reach the mosque, he heard the cry of the deceased Abdul Malik and having reached the place he found the appellant threatening them by displaying a sharp weapon. Being frightened, they moved away to some distance and at that time the appellant left the place along with the other accused persons. PW-1 went near his brother Abdul Malik and saw him lying on the ground. PW-1 deposed that he had seen stains of blood on the body of the appellant by the flash of torchlight. He also deposed that his brother Abdul Malik told him that the appellant had assaulted him. On raising alarm, people gathered and thereafter his family members along with the villagers gheraoed the appellant within his house. Information was made to the Police who came and arrested the appellant on the night of the day of occurrence along with his blood-stained clothes. 7. The deposition of Abdun Noor (PW-1) above discloses 3 (three) important aspects, that is, the appellant threatening by showing a sharp weapon; stains of blood being seen on the body of the appellant and the oral dying declaration made to him by Abdul Malik implicating the appellant. The veracity of the testimony of Abdun Noor (PW-1) was cross checked with the statements that he had made before the Police under Section 161 CrPC. From record, although the incident occurred on 06.04.2010, the statement of PW-1 under Section 161 CrPC was recorded more than a month later i.e. on 07.05.2010. In the said statement before the Police, Abdun Noor (PW-1) had stated that by means of the flashlight he had seen the appellant running away with dagger in hand, although he could not identify the other persons. He also stated that the deceased Abdul Malik had told him that the appellant had assaulted him. As indicated above, this statement under Section 161 CrPC was recorded after more than a month. The fact that the deceased had told him that the appellant had assaulted, finds no mention at all in the ejahar dated 08.04.2010. He also stated that the deceased Abdul Malik had told him that the appellant had assaulted him. As indicated above, this statement under Section 161 CrPC was recorded after more than a month. The fact that the deceased had told him that the appellant had assaulted, finds no mention at all in the ejahar dated 08.04.2010. On a scrutiny of the evidence on record and having regard to the statement made after more than a month, the fact of the oral dying declaration appears to be an improvement so made to implicate the appellant. 8. Abdul Ahad (PW-4) testified to the extent that he saw the appellant hitting the deceased Abdul Malik with a dagger. Although he wanted to go near them but on seeing the dagger in the hand of the appellant he went away out of fear. He raised alarm and at that time Asad Uddin (PW-5) along with another Noor Mia reached the place of occurrence. Meantime, the appellant ran towards his house where after villagers gathered and surrounded the house of the appellant until Police arrived and took the appellant out of the house. According to him, he was the first person to have reached the place of occurrence as well as the first person to have witnessed the incident. On cross, said Abdul Ahad (PW-4) however stated that he did not see the appellant hitting Abdul Malik with dagger by the flash of the flashlight. Apparently, on the basis of his deposition as well as his statement made under Section 161 Cr.P.C, it cannot be held that he was an eye witness to the incident. The quality of his deposition is of the same degree as that of the deposition of Abdun Noor (PW-1). 9. Asad Uddin (PW-5) also deposed as a eye witness to the crime as having seen from a distance the appellant hitting the deceased Abdul Malik with a dagger. He also deposed that the appellant on having seen them, ran away towards his house and they stepped aside on noticing blood and dagger in the hand of the appellant. He saw Abdul Malik lying dead with incised wounds in the entire body. He also deposed that the appellant on having seen them, ran away towards his house and they stepped aside on noticing blood and dagger in the hand of the appellant. He saw Abdul Malik lying dead with incised wounds in the entire body. Testing his testimony vis-à-vis the statement made by him before the Police under Section 161 CrPC which was recorded on 08.04.2010, he only stated that he had seen the appellant running away with a dagger in hand and that the appellant's clothes were also blood-stained which he could see by means of the torchlight. Tested thus, the deposition of Asad Uddin (PW-5) that he had witnessed the appellant hitting Abdul Malik with a dagger appears to be an improved version. 10. Save and except the official witnesses, the depositions of the other prosecution witnesses do not throw much light on the culpability of the appellant. However, mention be made of the testimony of Md. Suruj Ali (PW-2) and Sahab Uddin (PW-8) who had deposed to the extent of an altercation taking place between the appellant and the deceased over a money matter about half-an-hour before the occurrence of the incident. 11. Dr. Ranjan Kumar (PW-6) had carried out the autopsy by recording the injuries present on the body of the deceased with his opinion that death was caused due to shock and haemorrhage resulting from the injuries sustained. The Post-Mortem Report has been brought on record by way of Ext. 3. 12. The Seizure List (Ext. 2) as well as the deposition of Santosh Kr. Das, Sub-Inspector of Police who had undertaken the investigation requires to be noticed. In the evidence of Abdun Noor (PW-1), Abdul Ahad (PW-4) and Asad Uddin (PW-5) they had seen the appellant running away with dagger in hand and also wearing blood-stained clothes. The dagger being the weapon of offence as well as the clothes with blood-stain were not seized by the Police, although according to the prosecution witnesses above, the appellant after committing the offence had ran towards his house wherein he stayed confined due to villagers surrounding his house until Police arrived and took the appellant away. The articles that had been seized by the Police was one bamboo stick and a broken piece of a torchlight. The articles that had been seized by the Police was one bamboo stick and a broken piece of a torchlight. Even in the evidence of the PW-11 there is no mention of the weapon of offence as well as seizure of blood-stained cloths belonging to the appellant. 13. The deposition of Abdul Ahad (PW-4) and Asad Uddin (PW-5), tested against their statements made under Section 161 CrPC, cannot put them in a position of having witnessed the appellant inflicting injuries upon Abdul Malik. Although they deposed that they were present at the relevant time, their testimony do not account for any oral dying declaration having been made by Abdul Malik. In so far as Abdun Noor (PW-1) is concerned, he is apparently not an eye witness and his evidence of oral dying declaration being made to him by the deceased do not go to inspire the confidence of this Court on grounds as discussed above. 14. The testimony of Md. Suruj Ali (PW-2) and Sahad Uddin (PW-8) as regards an altercation having taken place between the appellant and the deceased cannot go to support the case of the prosecution in establishing the guilt of the appellant beyond all reasonable doubt. The circumstances with regard to the alleged altercation cannot form an essential link to prove that it was the appellant and the appellant alone who had committed the crime. 15. The evidence on record leads only to the conclusion that the conviction of the appellant and sentence thereof was primarily based on suspicion. In this respect, it would be apposite to remind ourselves to the law of the land that conviction cannot be based on suspicion nor on the conscience of the Court being morally satisfied about the complicity of an accused person. Such person can only be convicted and sentenced if the prosecution can prove its case beyond all reasonable doubt. In the present case, the prosecution has failed to do so. 16. In Raj Kumar Singh alias Raju alias Batya v. State of Rajasthan reported in (2013) 5 SCC 722 , the Apex Court held that suspicion, however grave it may be, cannot take the place of legal proof. In the present case, the prosecution has failed to do so. 16. In Raj Kumar Singh alias Raju alias Batya v. State of Rajasthan reported in (2013) 5 SCC 722 , the Apex Court held that suspicion, however grave it may be, cannot take the place of legal proof. The Court has to maintain the vital distance between conjectures and sure conclusions on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case including the quality and credibility of the evidence brought on record. Indeed, the Court at all times must ensure that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then benefit of doubt must be given to the accused. 17. In the instant case, the evidence brought on record do not conclusively and consistently bring home the guilt of the appellant beyond all reasonable doubt. As a result, the appellant is entitled to be given benefit of doubt in so far as the incident of 06.04.2010 is concerned. Accordingly, this appeal stands allowed and the conviction and sentence imposed upon the appellant in Sessions Case No. 40/2011 stands set aside. The appellant be released forthwith, if not involved or required to be detained in any other case. Case Records be sent back forthwith.