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2016 DIGILAW 1124 (GAU)

Syed Azimuddin Ahmed v. State of Assam

2016-12-14

AJIT SINGH, MANOJIT BHUYAN

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JUDGMENT AND ORDER : AJIT SINGH, J. 1. The sole appellant Syed Azimuddin Ahmed has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.50,000/- with default stipulation. He has also been convicted under Section 25(1)(a) of the Arms Act and sentenced to rigorous imprisonment for five years and fine of Rs.10,000/- with default stipulation. The jail sentences have been ordered to run concurrently. The trial court has, however, acquitted two co-accused persons, namely, Ali Hussain and Batcha Ali of the charge under Section 302/34 of the Indian Penal Code. 2. The victim of the incident was Khadem Ali, aged 38 years. 3. According to the prosecution case, Ali Hussain owned a Cloth Shop at Dalgaon falling within the jurisdiction of Police Station Dalgaon, District Darrang. For some reason, he intended to get Khadem Ali killed. Ali Hussain happened to know Batcha Ali, a Constable of Central Reserve Police Force “CRPF” because of the latter’s attachment to the CRPF Camp at Dalgaon. On the asking of Ali Hussain, Batcha Ali agreed to kill Khadem Ali for Rs.70,000/-. Batcha Ali, however, told Ali Hussain that since his face had become familiar to the people of Dalgaon, he would engage an assassin from a distant place. Batcha Ali then contacted the appellant to kill Khadem Ali. At that point of time, the appellant was also serving CRPF as Constable and hailed from another District Barpeta. Upon arrival of appellant at Dalgaon, Batcha Ali developed friendly relations with Khadem Ali. On 25.6.1999, around 4.40 p.m. Batcha Ali and Khadem Ali had tea in a Restaurant called “Dipti Hotel” at Dalgaon. Thereafter, they left the Restaurant together on their respective bicycles. After sometime, one gunshot was heard at the National Highway No. 52 in front of the Dalgaon CRPF Camp. The CRPF personnel, therefore, rushed to the place of occurrence. There they found Khadem Ali lying dead in a pool of blood with multiple cut injuries all over the body. They also found the appellant lying nearby with a gunshot injury on his leg. Then, someone from the CRPF Camp, informed the police about the incident. In the meantime, Aymon Nessa, wife of Khadem Ali, also made ejahar exhibit 9 at Police Station Dalgaon against unknown persons. 4. They also found the appellant lying nearby with a gunshot injury on his leg. Then, someone from the CRPF Camp, informed the police about the incident. In the meantime, Aymon Nessa, wife of Khadem Ali, also made ejahar exhibit 9 at Police Station Dalgaon against unknown persons. 4. On receiving information, Sorhab Ali (PW-16), Sub-Inspector of Police Station Dalgaon, proceeded to the place of occurrence. He too found Khadem Ali lying dead and appellant lying injured. He prepared the inquest report exhibit 6 of the dead body of Khadem Ali. He also seized one plastic bag, one empty wooden sheath of khukhuri (dagger), one country made pistol with an empty cartridge of .303 (bullet) and an old bicycle from the place of occurrence. The seizure memo of these articles is exhibit 5. Sorhab Ali even took the appellant to Dalgaon Dispensary where his injury on the leg was bandaged. Sorhab Ali also seized Identity Card of appellant, one .303 live cartridge, one blood stained currency note of Rs.100/- one blood stained currency note of Rs.20/- and one currency note of Rs.2/- from his possession. The seizure list of these articles is exhibit 4. 5. Dr. Nikhil Ranjan Sharma (PW-9) conducted the post mortem examination on the dead body of Khadem Ali. He found as many as 26 injuries, out of which, 24 were cut and 2 were penetrating wounds. He, in his post mortem examination report exhibit 7, opined that Khadem Ali died due to injuries sustained. 6. After investigation, the police charge-sheeted the appellant as well as Ali Hussain and Batcha Ali for offences under Section 302/34 of the Indian Penal Code read with Section 25(i)(a) of the Arms Act. 7. During trial, the accused persons abjured their guilt and pleaded false implication. 8. Admittedly, the police could not get any eye witness to the incident. The entire case of prosecution therefore rested on circumstantial evidence. The trial court, in the absence of any reliable evidence against Ali Hussain and Batcha Ali that they shared common intention with the appellant to kill Khadem Ali, acquitted them of the charge under Section 302/34 of the Indian Penal Code. The finding of the trial court, in this regard, is in paragraphs 92 and 93 of the impugned judgment. The trial court, in the absence of any reliable evidence against Ali Hussain and Batcha Ali that they shared common intention with the appellant to kill Khadem Ali, acquitted them of the charge under Section 302/34 of the Indian Penal Code. The finding of the trial court, in this regard, is in paragraphs 92 and 93 of the impugned judgment. As mentioned above, the trial court convicted and sentenced the appellant under Section 302 of the Indian Penal Code and Section 25(i)(a) of the Arms Act. 9. The learned senior counsel appearing for the appellant argued that the circumstances relied upon by the trial court do not in any manner connect the appellant with the killing of Khadem Ali. According to the learned counsel, merely because the appellant was found lying injured near the dead body of Khadem Ali, it cannot be held that he alone was the perpetrator of crime. The learned counsel has further argued that the seizure of .303 live cartridge from the possession of appellant was fabricated mainly to implicate him as the police could not find any other evidence against him. The learned Additional Public Prosecutor, on the other hand, defended the conviction and sentence of the appellant. 10. The trial court essentially relied upon the following circumstances to convict the appellant for committing the murder of Khadem Ali:- (i) Firing of gunshot near CRPF Camp on 25.6.1999 at about 8.30 p.m. (ii) The appellant was found lying injured near the dead body of Khadem Ali. (iii) seizure of country made pistol with used .303 cartridge from the place of occurrence. (iv) Seizure of empty khukhuri wooden sheath from the place of occurrence. (v) No explanation by the appellant about his presence at the place of occurrence. (vi) No explanation by the appellant how he sustained injury on his leg. (vii) No explanation by the appellant regarding his possession of .303 live cartridge and blood stained currency notes. 11. It is a fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and the burden entirely lies on the prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in Section 299 of the Indian Penal Code. This general burden never shifts and it always rests on the prosecution. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in Section 299 of the Indian Penal Code. This general burden never shifts and it always rests on the prosecution. 12. It has also been consistently held by the Supreme Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. Where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt. 13. We shall now examine whether from the circumstances relied upon by the trial court, the appellant can be held guilty of committing murder. Admittedly, the appellant himself was found lying injured near the dead body of Khadem Ali. And near the dead body, apart from other articles, only empty sheath of khukhuri/dagger was found. This empty sheath was seized by Sorhab Ali vide exhibit 5. The post mortem examination report exhibit 7 prepared by Dr. Nikhil Ranjan Sarma confirmed that Khadem Ali died due to as many as 24 cut and 2 penetrating wounds. These injuries could have been caused only with a dagger. No dagger was found in the possession of appellant or at the place of occurrence. In fact, the police could not recover the dagger from anywhere. As the appellant himself was lying injured near the dead body, it was not possible for him to get rid of the dagger used in the commission of crime. Meaning thereby that some third person must have mercilessly stabbed Khadem Ali with a dagger and fled from the place of occurrence along with it. As the appellant himself was lying injured near the dead body, it was not possible for him to get rid of the dagger used in the commission of crime. Meaning thereby that some third person must have mercilessly stabbed Khadem Ali with a dagger and fled from the place of occurrence along with it. Originally the prosecution case was also that Batcha Ali had stabbed Khadem Ali at the instance of Ali Hussain because the appellant for some reason could not fire at Khadem Ali from his pistol and after incident the appellant shot himself on his leg. But Batcha Ali has been acquitted by the trial court against which no appeal has been filed by the State Government. In the fact situation of the case, failure of police to recover dagger from the possession of appellant or from the place of occurrence or from any other place, creates a serious doubt that appellant alone was the perpetrator of crime. This important missing link has been completely ignored by the trial court. It is also to be noted that the appellant being in the CRPF must have been trained in using firearm. He was also allegedly armed with a pistol. Therefore, if he had to murder Khadem Ali, nothing prevented him from firing his pistol at him. 14. The circumstance of hearing a gunshot fire near the CRPF Camp on 25.6.1999 at about 8.30 p.m., in our considered opinion, does not connect the appellant with the murder of Khadem Ali in any manner. It is true that the appellant was found lying near the dead body of Khadem Ali with an injury on his leg. But there is no medical evidence to establish that injury on his leg was caused by a fire arm and that it was self-inflicted. Also Pharmacist-Abul Kalam Azad (PW-4), who did the dressing of appellant’s injury, does not say that it was due to gunshot. According to him, he was merely told that the injury was from gunshot. Likewise, seizure of country made pistol with used .303 cartridge from the place of occurrence is of no consequence. As seen above, not one fire arm injury was found on the dead body of Khadem Ali. There is also no evidence of any expert to suggest presence of appellant’s finger print marks on the seized country made pistol. Likewise, seizure of country made pistol with used .303 cartridge from the place of occurrence is of no consequence. As seen above, not one fire arm injury was found on the dead body of Khadem Ali. There is also no evidence of any expert to suggest presence of appellant’s finger print marks on the seized country made pistol. The other circumstance of seizure of empty wooden sheath of khukhuri/dagger from the place of occurrence in fact supports the case of appellant that some third person after stabbing Khadem Ali with a dagger fled with the weapon leaving the empty sheath on the spot. Seizure of .303 live cartridge and blood stained currency notes has also not been proved from the possession of appellant. Abul Kalam Azad (PW-4) and Azgar Ali (PW-7) were the seizure witnesses of these articles. Azgar Ali was declared hostile as he denied any such seizure before him. Abul Kalam Azad also in his cross examination admitted that Investigating Officer-Sorhab Ali had brought .303 live cartridge in his pocket and after showing it to him, obtained his signature on the seizure list. This supports the defense of appellant that seizure of .303 live cartridge from his possession was fabricated to falsely implicated him as the police could not find any other evidence against him. Also, there is no Forensic Science Laboratory report to suggest that seized currency notes were stained with blood. And lastly, merely because the appellant failed to explain how he sustained injury on his leg, in our considered opinion, cannot be sufficient to arrive at the verdict of his guilt. There is also no evidence that appellant was contacted by any person to kill Khadem Ali and that he was ever seen with Khadem Ali prior to incident. 15. For these reasons, we have no hesitation in holding that the prosecution failed to prove its case beyond reasonable doubt against the appellant. We accordingly set aside the impugned conviction and sentences and acquit him of the charges. The appeal is allowed.