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2016 DIGILAW 128 (GAU)

Basirul Hoque v. State of Assam

2016-02-23

C.R.SARMA, PARAN KUMAR PHUKAN

body2016
JUDGMENT : 1. The challenge in this appeal is to the judgment and order, dated 23.05.2013, passed by the learned Sessions Judge, Dhubri, in Sessions Case No. 11/2006, whereby the learned Sessions Judge while convicting the appellants under Section 302/34 Indian Penal Code (for short 'IPC'), sentenced each of them to suffer imprisonment for life and pay fine of Rs. 5,000.00 in default suffer Simple Imprisonment for another period of one year. Aggrieved by the said conviction and sentence, the convicts, as appellants, have come up with this appeal. 2. We have heard Mr. B.K. Mahajan, learned counsel for the appellants and Ms. S. Jahan, learned Addl. P.P. appearing for the State respondent. We have also perused the evidence, on record and the impugned judgment and order. 3. The prosecution case, in brief, as may be necessary for disposal of this appeal, may be stated as follows:- On 3.2.2004 a quarrel had taken place between Sri Nandilal Shah (hereinafter called the deceased), who was the brother of the informant (PW 1) and one Mr. Aminul Hoque (since deceased) in the stationary shop of the deceased in connection with purchase of some items and the deceased had assaulted the said Aminul Hoque causing injury to his person. On the same day, at about 4-30 p.m., about 200 to 300 people from the market area chased and drove the deceased to the paddy field situated at village Chota Bajra and assaulted him with various weapons, including lathi etc. resulting his death. On the same evening on being informed by PW 1, police after making a G.D. Entry, rushed to the place of occurrence, prepared inquest report and shifted the dead body for post mortem examination. On the next morning, PW 1 i.e. brother of the deceased lodged a written FIR (Ext. 1) and the same was registered as police case under Sections 302/427 IPC. 4. During the investigation police prepared sketch map of the place of occurrence, examined the witnesses and collected the post mortem report. At the close of the investigation police submitted charge-sheet under Section 302/34 IPC against the appellants. 5. The case, being exclusively triable by the court of Sessions, was committed to the Court of Sessions and the learned Sessions Judge framed charges under Section 302/34 IPC against the appellants and others (in total 15 persons). At the close of the investigation police submitted charge-sheet under Section 302/34 IPC against the appellants. 5. The case, being exclusively triable by the court of Sessions, was committed to the Court of Sessions and the learned Sessions Judge framed charges under Section 302/34 IPC against the appellants and others (in total 15 persons). The charge was read over and explained to the accused persons to which they pleaded not guilty. They claimed to be tried. 6. In order to prove its case, prosecution examined as many as 19 witnesses including the medical officer (PW 7), who performed autopsy of the dead body and the investigating police officers (PWs 17, 18 and 19). At the close of the examination of the prosecution witnesses, the accused persons were examined, under Section 313 Cr.P.C. They denied the allegations, brought against them and declined to adduce evidence. Considering evidence on record the learned Sessions Judge held the appellants guilty of the offence, under sections 302/34 IPC and accordingly convicted and sentenced them as indicated above. Hence, this appeal. 7. Mr. B.K. Mahajan, learned counsel, appearing for the appellants, referring to the evidence, on record, has submitted that the deceased died due to a mob violence and that there is no substantive evidence to show that the appellants had caused the death of the deceased. The learned counsel has also submitted that, except PW 3 and 4, who are brothers of the deceased, none claimed to have seen the occurrence and that the contradictory evidence given by the said two eye witnesses, raises doubt about the veracity of their evidence. It is also submitted that though PWs 3 and 4 claimed to have seen some of the appellants assaulting the deceased, they failed to make such disclosure at the initial stage i.e. at the time of recording their statements under Section 161 Cr.P.C., which indicates development of the prosecution version of the case. The learned counsel has submitted that the prosecution failed to prove the case against the appellants, beyond all reasonable doubt and as such they are entitled to be acquitted and set at liberty. 8. Refuting the said argument, advanced by the learned counsel for the appellants, Ms. S. Jahan, learned Addl. The learned counsel has submitted that the prosecution failed to prove the case against the appellants, beyond all reasonable doubt and as such they are entitled to be acquitted and set at liberty. 8. Refuting the said argument, advanced by the learned counsel for the appellants, Ms. S. Jahan, learned Addl. P.P., Assam, supporting the impugned judgment and order has submitted that there is sufficient evidence regarding involvement of the appellants and that the learned Sessions Judge committed no error by recording the conviction and sentence. It is also submitted that there is enough evidence to show that the appellants, along with others, had chased the deceased and thereafter assaulted him causing his death. The learned Addl. P.P. has submitted that the impugned conviction and sentence need no interference. 9. Having heard the learned counsel appearing for both the parties, we have carefully perused the evidence, on record, and the impugned judgment and order. From the record, it appears that PW Nos. 3 and 4 who are brothers of the deceased claimed that they saw Abdul Jalil, sattar, Nousad and Basirul assaulting the deceased. The conviction is based on the evidence given by the said two witnesses. 10. Carefully scrutinizing the evidence on record, we find that PW 1, who lodged the FIR exhibited the same as ext. No. 1. This witness stated that he saw some people along with Basirul Hoque, Sayem, Bijal Haque, Pegu Seikh, Nausad Ali, Jakir Hussain, Jilal, Jalil Akond, Matin Akond, sattar and Salam chasing the deceased being armed with lathies. He further stated that the said persons had also brandished lathies towards him, for which he had entered his house and subsequently he was informed by one Wahab that the deceased was killed. He further stated that on the same evening, he informed the police and on the next day he submitted the written FIR (ext.1). In his cross-examination this witness stated that he did not witness the incident and that he simply heard about the same. The said evidence given by the informant negates his evidence that he had seen the people chasing the deceased. That apart, before filing the written ejahar i.e. ext. 1, police was informed by PW 1, about the incident and, on being so informed, police had visited the place of occurrence and initiated investigation. The said evidence given by the informant negates his evidence that he had seen the people chasing the deceased. That apart, before filing the written ejahar i.e. ext. 1, police was informed by PW 1, about the incident and, on being so informed, police had visited the place of occurrence and initiated investigation. The investigating officer, who deposed as PW 17 also stated that, on the date of occurrence, at about 6 p.m., he received the information and made the G.D. entry, being G.D. entry No. 36 dated 3.2.2004. Therefore, the said information, giving rise to the said G.D. Entry, being the first information given at the first point of time, was the first information report, in the eye of law. The written ejahar was nothing more than a written statement, made under Section 161 Cr.P.C. The said G.D. entry is silent about the involvement of the appellants. 11. Sri Bhuyal Ch. Saha (PW 2) who was also one of the brothers of the deceased stated that some of the appellants had chased the deceased and that he rushed to his house for taking shelter. He further stated that he heard, some one saying, that the deceased was killed. He also stated that they found the dead body of the deceased at a distance of one furlong from their house. In view of above, as this witness had taken shelter in his house which was situated at a distance of one furlong from the place of incident, it is not believable that he had seen the appellants assaulting the deceased. 12. Sri Shiv Narayan Shah, who was one of the brothers of the deceased, deposing as PW 3, stated that the deceased was taken by some persons including Jalil, Sattar and Nausad. He also stated that he had seen the said persons assaulting the deceased and that, out of fear, he had rushed to his house. According to this witness, in the evening, he came to know that the deceased had died in the place of occurrence. This witness stated that he did not visit the place of occurrence. In his cross-examination, he stated that about 150 persons were present in the market. He denied the suggestion, put to him, by the defence, that he did not state before the police that people of the Hazir Hat Bazar had assaulted his brother. This witness stated that he did not visit the place of occurrence. In his cross-examination, he stated that about 150 persons were present in the market. He denied the suggestion, put to him, by the defence, that he did not state before the police that people of the Hazir Hat Bazar had assaulted his brother. He denied the suggestion that he did not state before the police that Jalil, Sattar and Nausad had caught and taken the deceased. He also denied the suggestion that he did not state before the police that he saw his brother being assaulted by the said persons. The investigating officer, who deposed as PW No. 17, proved the said contradictions in respect of the evidence given by PW 3. In view of above, it appears that the PW 3 failed to disclose the involvement of appellants Jalil, Sattar and Nausad, at the initial stage i.e. at the time of recording his statement under Section 161 Cr.P.C. Hence, there is scope to believe that PW 3 tried to develop the prosecution case by mentioning the names of the said appellants, subsequently. Hence, the evidence, given by PW 3, that the said appellants had taken and assaulted his brother is not free from doubt. 13. Shri Shiv Sankar Shah, another brother of the deceased deposing as PW 4 stated that he saw Jalil, Sattar and Basirul assaulting the deceased and that, protest being made by him, the said persons had made attempt to assault him also. He further stated that he rushed to the house of one Raj Kishore Master (PW 11) (not examined) and took shelter therein. 14. Sri Raj Kishore Gupta, deposing as PW 11, stated that he saw some persons raising hue and cry in the market near the house of the deceased and came to know that one person was killed. This witness did not whisper anything about the shelter taken by PW 4, in his house. Hence, we find no corroboration in the evidence of PW 4 to believe that he had rushed to the house of PW 11 for taking shelter in the house of PW 11. Therefore, PW 4's evidence that he had seen Jalil, Sattar and Basirul assaulting the deceased and that on being threatened the accused persons and had taken shelter in the house of PW 11 is not believable. . Therefore, PW 4's evidence that he had seen Jalil, Sattar and Basirul assaulting the deceased and that on being threatened the accused persons and had taken shelter in the house of PW 11 is not believable. . That apart, both PW 3 and PW 4, who are brothers, claimed that they had seen that the deceased was assaulted by some of the appellants. But, neither PW 3 supported the presence of PW 4 nor PW 4 supported the presence of PW 3 in the place of occurrence. That apart, according to PW 3, Mr. Jalil, Sattar and Nausad had taken the deceased, but, according to PW 4 Jalil, Sattar and Basirul had assaulted the deceased. From the above, it appears that there is no corroboration, on material point, i.e. regarding involvement of the appellants. The contradictory evidence given by PW 3 and 4 raises doubt about the prosecution version. 15. Sri Krishna Shaha, who deposed as PW 5 did not state anything regarding involvement of the appellants. This witness was declared hostile and cross-examined by the prosecution. No incriminating evidence could be elicited from his cross-examination. 16. Sri Kripal Saha, who deposed as PW 6 stated that the deceased had inflicted blows with a dagger on the person of Mr. Aminul. However, this witness did not state anything regarding involvement of the appellants. 17. Dr. Debamoyee Sanyal, who performed the autopsy of the dead body of the deceased deposed as PW 7. According to the said medical officer the deceased sustained multiple injuries and the cause of death of the deceased was head injury sustained by him. From the said medical evidence, it appears that the deceased died due to injuries sustained by him. Hence, the death was a culpable homicide. 18. Smt. Amola Rani Shah, wife of the PW 1, deposing as PW 8 stated that bricks were pelted to their house and that they had closed their doors and remained confined in their house. She stated that she heard that their brother-in-law was assaulted. This witness did not state that she had seen the occurrence herself. Her evidence does not indicate involvement of the appellants. 19. Sri Mintu Shah (PW 10) stated that he came to know that his uncle was killed. This witness further stated that he did not know as to who had chased his uncle i.e. the deceased. Similarly, 1. Rajkishore Gupta (PW 11), 2. Her evidence does not indicate involvement of the appellants. 19. Sri Mintu Shah (PW 10) stated that he came to know that his uncle was killed. This witness further stated that he did not know as to who had chased his uncle i.e. the deceased. Similarly, 1. Rajkishore Gupta (PW 11), 2. Behad Ali Ahmed (PW 12), 3. Musstt. Mahela Khatun (PW 13), 4. Ghutu Sheikh (PW 14), 5. Abdul Shafil Miah (PW 15), and 6. Abul Hussain (PW 16) did not state anything incriminating against the present appellants. What they stated was that they heard about the death of the deceased. They stated that they did not know as to who had caused his death. From the said evidence, it appears that a big crowd i.e. around 400 persons had assembled. The evidence given by PW Nos. 1,2,3 and 4, indicate that the said crowd had chased the deceased. As the PW 1, had informed the police, on the same evening i.e. after the occurrence, he could have disclosed the names of the culprits involved with the said crime, if they were identified by him. 20. PW 17 i.e. the O.C. of the concerned police station, who recorded the G.D. Entry, stated that he was verbally informed by the informant (PW 1) that about 1000 to 3000 persons from the Hajir Hat market had chased his younger brother to the paddy field and that they had assaulted the deceased causing his death. In his cross-examination the I.O. (PW 17) stated that the names of the accused persons were disclosed on the next day. From the evidence of PW 17, it appears that the names of the appellants were not disclosed at the time of giving the first information to the police. Therefore, the evidence given by the brothers of the deceased i.e. PW Nos. 1,2,3 and 4, including the informant (PW-1) regarding identity of the accused persons is not free from doubt, inasmuch as the same appears to be after thought. 21. Law is well settled that in the event of existence of two views, i.e. one going in favour of the accused person and other going in favour of prosecution, the benefit should always go in favour of the accused person. 22. 21. Law is well settled that in the event of existence of two views, i.e. one going in favour of the accused person and other going in favour of prosecution, the benefit should always go in favour of the accused person. 22. In view of the above discussed evidence and the contradictions found therein, we have no hesitation in holding that the prosecution failed to prove the case, beyond all reasonable doubt. Therefore, the impugned conviction and sentence cannot be maintained. We find sufficient merit in this appeal. Accordingly, the appeal is allowed. The impugned conviction and sentence are set aside. The appellants are acquitted and they be set at liberty forthwith, if not wanted in any other cases.