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2016 DIGILAW 636 (GAU)

ABU Bakkar Siddique v. Jamela Khatun

2016-07-15

A.K.GOSWAMI, PARAN KUMAR PHUKAN

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JUDGMENT AND ORDER : Paran Kumar Phukan, J. This appeal has been preferred by the first informant as appellant against the judgment and order dated 26.06.2012 passed by the learned Additional Sessions Judge, Barpeta in Sessions Case No.89/2008 acquitting the respondents from the charges under Sections 447/379/302/34 of the IPC. 2. The case projected by the prosecution, in brief, is that on 31.03.2008 at about 9 p.m., the accused respondents armed with weapons like, lathi, spear (fala) etc. trespassed into the campus of the informant Abu Bakkar Siddique and assaulted his brother Osman Goni causing grievous injuries on his person and also committed theft of Rs.20,000/- and one wrist watch from him. On the next day, the injured was shifted to hospital for treatment but he succumbed to the injuries in the Guwahati Medical College & Hospital, Guwahati. The written FIR relating to the occurrence was lodged by the informant Abu Bakkar Siddique on the next day of the occurrence on the basis of which a case was registered and on completion of investigation Charge-Sheet was submitted against the accused respondents. 3. During the course of trial, the prosecution examined 9 witnesses including the official witnesses. The accused respondents pleaded innocence in their defence statement recorded under Section 313 Cr.P.C. However, they declined to adduce defence evidence. The learned Additional Sessions Judge disbelieved the case of the prosecution and recorded acquittal of all the accused respondents. Hence, this appeal preferred by the first informant appellant Abu Bakkar Siddique challenging the judgment of the learned Additional Sessions Judge (FTC), Barpeta. 4. Heard Mr. J. Ahmed, learned counsel appearing for the appellant and Mr. NNB Choudhury, learned counsel appearing for the respondent Nos. 1 to 4. Also heard Ms. S Jahan, learned Additional Public Prosecutor, Assam. 5. There is no dispute regarding the death of Osman Goni due to the injuries sustained by him. Post-mortem on the dead body of Osman Goni was conducted on 03.04.2008 by PW7 Dr. Pradip Thakuria, Assistant Professor, Department of Forensic Medicine, GMCH, Guwahati and on examination, he found the following injuries:- External appearance: Condition of subject-stout, emaciated, decomposed etc,:- One average built swarthy complexion male body, wearing one lungi, checked shirt, ganjee. Rigor mortis developed. Hypostasis present on back, fixed. Injuries:- 1. Scalp skull, vertebrae:- Scalp contusion of size 16 X 10 cm. present over vertex. Fig. Rigor mortis developed. Hypostasis present on back, fixed. Injuries:- 1. Scalp skull, vertebrae:- Scalp contusion of size 16 X 10 cm. present over vertex. Fig. 1(a) Skull- fissured fracture as shown in fig 1(b) present over vertex 7 X 1.5 cm. Vertebrae healthy. Membrane:- (i) Extradural haemorrhage 10 X 8 cm. present over vertex. (ii) Intraunebal haemorrhage present near the ventricles at places. 6. The doctor was of the opinion that the cause of death of the deceased was due to head injury. All the injuries sustained by the deceased were anti-mortem and caused by blunt force impact. The doctor proved the postmortem report, Ext.-4. 7. In cross-examination also the doctor reaffirmed that the deceased sustained only head injury caused by blunt object and the type of injury may be caused by falling on a hard substance or dashing against hard substance. 8. Mr. N.N.B. Choudhury, learned counsel appearing for the respondents assailed the prosecution case from all sides, but the main thrust of his argument centered around the delayed FIR, discrepancies and inconsistencies in the evidence of the prosecution witnesses and lack of corroboration in their evidence in material particulars. 9. In controversion, Ms. S Jahan, learned Additional Public Prosecutor, as well as Mr. J Ahmed, learned counsel for the informant appellant submitted that the delay in filing the FIR has been sufficiently explained. Although, the occurrence took place on the evening of 31.03.2008, on that night, the informant and his other relatives could not come to Police Station as they were busy in providing treatment to the injured who was brought to Pathsala PHC on the following morning and was referred to GMCH and was taken to GMCH accordingly, where he succumbed to injuries on 03.04.2008. They further contend that the eye witnesses to the occurrence, PW1 Abu Bakkar Siddique, who is the elder brother of the deceased and PW5 Jaynal Abedin, father of the deceased have given consistent and uniform version regarding the occurrence and their evidence is corroborated by the post-occurrence witnesses PW2 to PW4 which amply proved that the accused respondents committed the murder of Osman Goni. No major discrepancy has been brought on record and for minor discrepancy, the entire prosecution case cannot be brushed aside. 10. No major discrepancy has been brought on record and for minor discrepancy, the entire prosecution case cannot be brushed aside. 10. Before adverting to the contentions raised by the learned counsels appearing for both the sides, it is necessary to have a brief overview of the evidence on record. 11. PW1 Abu Bakkar Siddique appears to be the first person to arrive at the spot after hearing the commotion. According to him, he went to the spot with a hurricane lamp and saw the accused respondents Jubed Ali and Jabed Ali assaulting Osman Goni and the other two respondents standing nearby armed with iron rod and dao/dagger. The respondent Jamela Khatun had kept the dao/dagger concealed under her clothes. He raised hue and cry which attracted the attention of the neighbours, namely, Mokbul Hussain, Tahar Ali, Kamala Khatun, Idrish Ali, Muzibur Rahman, Fakaruddin Gaon Burha and his wife and they arrived at the spot soon after the occurrence. The respondents on seeing those persons managed to run away. Since it was raining, the injured was not taken to hospital in the night and in the following morning he was taken to Pathsala PHC, wherefrom, he was referred to GMCH at Guwahati. It is in his evidence that before leaving for Guwahati, he lodged the FIR with the O/C, Patacharkuchi Police Station. After two days, his injured brother succumbed to the injuries. The deceased, after the occurrence, informed him that the respondent Jubed Ali had taken a sum of Rs.20,000/- and a wrist watch from him. PW1 claims to have poured water on the head of the injured. 12. Mr. N.N.B. Choudhury, learned counsel strenuously contended that there are marked improvements in the evidence of PW1 and consequently, he cannot be relied upon. He has not stated regarding his visit to the spot of occurrence with hurricane lamp before police and he also did not state that he had seen the respondents Jubed Ali and Jabed Ali assaulting his brother with lathi. He also did not state before police that Samsul Ali and Jamela Khatun were standing in a nearby place armed with weapons. He also did not state about the arrival of the other witnesses on the spot after the occurrence while giving statement before police and regarding taking away of Rs.20,000/- and the wrist watch also no statement was given. He also did not state before police that Samsul Ali and Jamela Khatun were standing in a nearby place armed with weapons. He also did not state about the arrival of the other witnesses on the spot after the occurrence while giving statement before police and regarding taking away of Rs.20,000/- and the wrist watch also no statement was given. The Investigating Officer was confronted with the contradictions and improvements and he proved those contradictions. 13. On scrutiny of his evidence, it emerges that there has been marked improvement of his evidence during the trial with regard to material particulars which casts serious doubt regarding his tall claim that he had seen the accused respondents assaulting his brother and it is doubtful whether he had seen the accused respondents committing the crime and we find it too hazardous to place implicit reliance in his evidence. 14. PW5 also claims to be an eye witness and his evidence is that on that evening his deceased son who was doing business of rice, returned home at about 8.30 pm and after arrival, he was making calculations and after sometime, the respondent Jubed Ali called the deceased and both of them left the house. Soon thereafter, he heard a commotion and went to the place of occurrence with a hurricane lamp and he claims to have seen the respondents assaulting his son with bamboo lathi, spear, dao, rod etc. He raised hue and cry. The neighbours came and on seeing them, the respondents fled away. His eldest son Abu Bakkar Siddique and his wife brought the injured to the courtyard and he noticed injuries on his head and other parts of his body. The deceased was unconscious at that time. According to him, when the deceased regained sense, on being asked, he informed him that the respondents assaulted him causing injures. But this witness also appears to have made improvements during the trial. He had never stated before the Investigating Officer that his deceased son was called by the respondent Jubed Ali while he was doing calculations and he also did not state that after hearing hue and cry, he proceeded to the place of occurrence with a hurricane lamp. He also did not state before the Investigating Officer that he saw the injuries on the head, below the knees and chest and on the back of his deceased son. He also did not state before the Investigating Officer that he saw the injuries on the head, below the knees and chest and on the back of his deceased son. His evidence that the deceased on regaining sense after half an hour, informed him that the respondents assaulted him is also doubtful. If he at all saw the accused respondents assaulting his son there was no necessity for him to ask him again to the deceased regarding the assailants which cast doubt regarding his presence at the place of occurrence and his evidence that he saw the accused respondents assaulting his son. 15. The whole edifice of the prosecution case mainly rested on the testimony of the eye witnesses PW1 and PW5 but on careful scrutiny of their evidence, we have found them unworthy of credence and implicit reliance cannot be placed in their evidence. Consequently, the edifice crumbled. PW2 Hujur Ali alias Juhur Ali, PW3 Hakim Uddin and PW4 Kamala Khatoon are post-occurrence witnesses. PW2 although deposed that the accused respondents assaulted Osman Goni but his evidence reveals that he arrived in the courtyard of PW1 after the occurrence and saw Osman Goni lying on the courtyard and from Osman Goni, he had come to know that the accused respondents assaulted him. 16. In cross-examination also he stated that he had not seen the accused persons when he arrived at the spot and saw Osman Goni lying unconscious on the ground. He claims to have poured water on the head of the deceased and he also noticed other persons doing the same but he could not even name them. Although, PW2 claimed that he was informed by PW1 about the name of the assailants but no such statement was given by him before the Investigating Officer in his statement under Section 161 of the Cr.P.C. which renders his testimony that he had come to know about the name of the assailants from Abu Bakkar Siddique doubtful. Similarly, PW3 who is a neighbour also deposed that after hearing the commotion, he went to the place of occurrence and saw PW1 Abu Bakkar Siddique pouring water on the head of Osman Goni and he had heard from public that the respondents assaulted Osman Goni. 17. Similarly, PW3 who is a neighbour also deposed that after hearing the commotion, he went to the place of occurrence and saw PW1 Abu Bakkar Siddique pouring water on the head of Osman Goni and he had heard from public that the respondents assaulted Osman Goni. 17. In cross-examination, he changed his version and stated that he saw the injured lying on a bed in the veranda of the house of Abu Bakkar Siddique and he did not discuss about the incident with Siddique on that day and later on only he came to know from the public that the respondents assaulted Osman Goni. He categorically denied that he had seen any quarrel taking place between the respondents and the deceased. The only possible inference from his evidence is that he saw Osman Goni lying in an injured condition in the house of PW1 Abu Bakkar Siddique. PW4 has been declared hostile by the prosecution but before she was declared hostile, she had stated that the respondents were pouring water and that Osman Goni was assaulted. However, she could not name the assailants. Although, she claims to have met PW1 Abu Bakkar Siddique on the night of the occurrence but she did not discuss regarding the incident with him. She claims to have seen the respondents massaging the injured Osman Goni with warm oil. Her evidence is of no help to the prosecution at all. The house of PW6 is at a distance of about 1 km from the place of occurrence and in the next morning only, he came to the house of Abu Bakkar Siddique and found Osman Goni lying unconscious. His evidence is that police seized, vide Ext. 3, two lathies in his presence but the seizure of the lathies would not prove that those were used for committing the crime. Admittedly, PW6 had not seen the occurrence and on the next morning only he saw the injured lying unconscious. 18. The first contention of the learned counsel for the respondents was regarding the delay in lodging the FIR. Although, the occurrence took place at about 9 pm on 31.03.2008, the FIR in the case was lodged on the next day at about 4.20 pm and it reached the Magistrate on 03.04.2008. The distance between the place of occurrence and the police station is about 20 km. Although, the occurrence took place at about 9 pm on 31.03.2008, the FIR in the case was lodged on the next day at about 4.20 pm and it reached the Magistrate on 03.04.2008. The distance between the place of occurrence and the police station is about 20 km. It is sought to be established that due to the inordinate delay in lodging the FIR, the prosecution case become doubtful. 19. In our considered view, in the facts and circumstances of the case, it cannot be said that there was delay in lodging the FIR before police. Evidence on record reveals that there was heavy downpour in the night and due to this reason, the family members of the injured could not go to the hospital and to the police station and on the next morning only he was taken to Pathsala PHC and on being referred, he was taken to GMCH at Guwahati. Obviously, the family members were busy in his treatment and before going to Guwahati, PW1 lodged the FIR before police regarding the incident in question. Obviously, the close relatives were busy with his treatment and probably, the villagers did not want to involve themselves by going to the police station for giving information. That apart, since Osman Goni was in injured condition, his brothers might not have comprehended the seriousness of the injures and only after he was referred to GMCH, PW1 before leaving for Guwahati lodged the FIR in the police station. 20. In our opinion, the period which elapsed in lodging the FIR of the incident has been fully explained from the evidence on record and no adverse inference can be drawn against the prosecution merely on the ground that the FIR was lodged on the next day at about 4.20 pm. There is no hard and fast rule that delay in lodging the FIR would automatically render the prosecution case doubtful. All the facts and circumstances of the case have to be considered. 21. In the case of Amar Singh v. Balwinder Singh and Ors. reported in (2003) 2 SCC 518 , the Apex Court while discussing the factum of delay in lodging the FIR had observed that there is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. 21. In the case of Amar Singh v. Balwinder Singh and Ors. reported in (2003) 2 SCC 518 , the Apex Court while discussing the factum of delay in lodging the FIR had observed that there is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. It necessarily depends upon the facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case and for this reason, a host of circumstances like, the condition of the first informant, the nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of the hospital and the police station etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging of the FIR. 22. In Tara Singh & Ors. v. State of Punjab, AIR 1991 SC 63 , the Supreme Court observed as follows:- “The delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are, one cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go the police station for giving the report. Of course, in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the Courts should be cautious to scrutinize the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinized carefully. In order to avert the danger of convicting such innocent persons the Courts should be cautious to scrutinize the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinized carefully. However, unless there are indications of fabrications, the Court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciations and much depends on the facts and circumstances of each case.” 23. In Zahoor and Ors. v. State of U.P., the Supreme Court observed as follows:- “It was held that mere delay by itself is not enough to reject the prosecution case unless there are clear indications of fabrication. This was reiterated in Jamna and Ors. v. State of Uttar Pradesh, AIR 1994 SC 79 that delay by itself is not a circumstance to doubt the prosecution case.” 24. In the present case keeping in view the observations of the Apex Court, we are unable to accept the contention that the prosecution case became doubtful due to delayed filing of the FIR. Because of the contradictions in the statement of the informant and the eye witnesses as compared with the statements recorded by the Investigating Officer, we do not find them to be truthful and trustworthy and it is doubtful whether they had seen the accused respondents causing injuries to the deceased. Although, no motive has been attributed for committing the crime, it appears from the evidence that there was not only a boundary dispute but also a dispute regarding business of the deceased with the respondents and false implications due to the dispute also cannot be ruled out. Because of the improvements made by the informant during his evidence and comparing his evidence with the statements recorded by the Investigating Officer, we do not find him reliable and trustworthy. Similar is the case with PW5 who also in material particulars deviated from his earlier stand given before the Investigating Officer and tried to make improvement during the trial. The statements of the eye witnesses are at variance with their statements as recorded by the Investigating Officer and we are of the considered view that implicit reliance cannot be placed in their evidence. 25. The statements of the eye witnesses are at variance with their statements as recorded by the Investigating Officer and we are of the considered view that implicit reliance cannot be placed in their evidence. 25. It is well settled law that the Appellate Court while dealing with an appeal against the judgment of acquittal cannot interfere with the said judgment unless it is shown that the judgment is perverse and contrary to the evidence on record or that the Trial Court has omitted to consider any material evidence placed on record. 26. In Tota Singh and Another v. State of Punjab reported in (1987) 2 SCC 529 , while discussing the principles of law involved in dealing with an appeal against an order of acquittal, the Apex Court has held as under:- “The jurisdiction of the Appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterized as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the Court below has taken a view which is a plausible one, the Appellate Court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the Court below on its consideration of the evidence is erroneous.” 27. Keeping in view the principles laid down by the Apex Court, we have minutely perused the judgment of the learned Additional Sessions Judge, Barpeta and we have found that the approach made by the learned Additional Judge in respect of consideration of the evidence cannot be characterized as perverse. The learned Judge while dealing with the case discussed in detail all the evidence on record before coming to the conclusion and we are in complete agreement with the views of the learned Trial Court. In such a case, interference in appeal is uncalled for. The learned Judge while dealing with the case discussed in detail all the evidence on record before coming to the conclusion and we are in complete agreement with the views of the learned Trial Court. In such a case, interference in appeal is uncalled for. The testimony of the eye witnesses having been found to be unworthy of credence, the learned Additional Sessions Judge acquitted the accused respondents. Consequently, the judgment of the trial Court stands affirmed. 28. The appeal fails and is dismissed. 29. Send down the LCR along with a copy of this judgment to the learned Court below for information and necessary action.