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2016 DIGILAW 841 (GAU)

Md. Hafizur Rahman v. State of Assam

2016-09-06

AJIT SINGH, N.CHAUDHURY

body2016
JUDGMENT & ORDER : N. Chaudhury, J. The two appellants involved in this case were convicted under Sections 364, 302 read with Section 34 of the Indian Penal Code in Sessions Case No.176(DM)/2011 of the Court of learned Sessions Judge, Darrang at Mangaldai by judgment and order dated 18.09.2013 and they had been sentenced to suffer rigorous imprisonment for life and to also to pay a fine of Rs.25,000/- each, in default, to suffer imprisonment for six months more. 2. The prosecution story is that informant Moon Choudhury had a motor vehicle wherein he engaged Motinul Haque Saikia, his brother-in-law, as driver. On 05.07.2011 the vehicle was hired by some persons for going towards Changsari. Till 2.00 p.m. the owner had communication link with the driver but thereafter the communications got snapped. Thereafter, he received information from Dispur Police Station that the vehicle had been recovered at a place within the jurisdiction of Sipajhar Police Station in the district of Darrang. He immediately went to Mangaldai Police Station and got the vehicle. He was taken to Mangaldai Civil Hospital thereafter where he identified the dead body of his driver-cum- brother-in-law Motinul Haque Saikia. He also came to know that two persons had already been arrested as they had tried to grab the vehicle by killing the driver. Accordingly, he lodged a written ejahar on 06.07.2011 with the Officer-in-Charge of Mangaldai Police Station. Mangaldai Police Station forwarded the ejahar to Sipajhar Police Station within whose jurisdiction the occurrence had taken place and accordingly Sipajhar Police Station Case No.224/2011 under Sections 364/302/386 of the Indian Penal Code was registered. 3. Having recorded the statements of the witnesses and after obtaining post mortem report police submitted charge-sheet against appellants Hafizur Rahman and Sibu Adhikari alias Sunil Roy alias Gautam Roy in the Court of learned Judicial Magistrate First Class at Mangaldai, Darrang, who committed the case to the Court of Sessions and thereupon Sessions Case No.176(DM)/2011 was registered. The accused persons pleaded not guilty and claimed to be tried. 4. In course of trial prosecution examined thirteen witnesses and exhibited seven documents including the postmortem report, inquest report, sketch map and the charge-sheet. The learned Sessions Judge examined the two accused persons under Section 313 of the Code of Criminal Procedure on the basis of the materials disclosed in the prosecution evidence whereupon the accused persons pleaded innocence. 4. In course of trial prosecution examined thirteen witnesses and exhibited seven documents including the postmortem report, inquest report, sketch map and the charge-sheet. The learned Sessions Judge examined the two accused persons under Section 313 of the Code of Criminal Procedure on the basis of the materials disclosed in the prosecution evidence whereupon the accused persons pleaded innocence. Having considered the evidence the learned Sessions Judge was of the view that a chain of circumstances has been established against the accused persons as follows:- (a) On 05.07.2011 at about 2.00 p.m. the accused had hired the vehicle from Guwahati for onward journey through National Highway 52 to Sangsari. (b) The vehicle was driven by deceased Matinul Hoque Saikia. (c) Few hours later, the dead body of the driver Matinul Hoque Saikia was recovered by the side of N.H. 52 at Sipajhar which is situated beyond Sangsari. (d) Again after few hours, the accused Hafizur Rahman was found driving the aforesaid vehicle with Sunil Roy as passenger, when they were detained by police at Mangaldai, situated at a distance of about sixteen kilometers from Sipajhar, at about 9.00 p.m. on 05.07.2011. (e) The other accused Sunil Roy tried to escape by jumping into a ditch when the vehicle was stopped by police at Mangaldai. And, finally, (f) The distance between Guwahati, Sipajhar and Mangaldai and the time gap involved, the accused persons were last seen with the deceased within a very short time of occurrence which obliterates the possibility of any person other than the accused being the author of the crime. The learned Sessions Judge, therefore, held both the accused persons guilty of the offence charged under Sections 364, 302 read with Section 34 of the Indian Penal Code and sentenced them as aforesaid. 5. We have heard Mr. M. A. Sheikh, learned counsel for the appellants and Ms. Shamima Jahan, learned Additional Public Prosecutor, Assam for the respondent. We have also perused the records. 6. PW 1, while filing the ejahar did not disclose that the vehicle had started from Guwahati at 2.00 p.m. and that the accused persons were there in the vehicle. However, in his deposition, he disclosed that at 2.30 p.m. of 05.07.2011 deceased Motinul drove the DI 207 vehicle towards Changsari on hire and accused Sibu Adhikari and Hafizur Rahman were the passengers. However, in his deposition, he disclosed that at 2.30 p.m. of 05.07.2011 deceased Motinul drove the DI 207 vehicle towards Changsari on hire and accused Sibu Adhikari and Hafizur Rahman were the passengers. At about 7.00 p.m. he telephoned Motinul but the phone was found switched off. At 9.30 a.m. on the following day i.e. on 06.07.2011 he was informed by Dispur Police Station over phone that his vehicle has been detained at Mangaldai Police Station. Thereafter he went to Mangaldai Police Station at 12.00 O’clock and found the dead body of Motinul in Mangaldai Civil Hospital. Even in his statement under Section 161 of the Code of Criminal Procedure, with which he was contradicted, he did not mention that the accused persons had hired the vehicle and were sitting in it as passengers at 2.00 p.m. on 05.07.2011 when the vehicle had started from Guwahati. There is no other evidence on record to hold a view that the two accused persons hired the vehicle from Guwahati for onward journey to Changsari along National Highway 52. The first bead in the chain of circumstances described in the impugned judgment, therefore, does not exist. 7. The second bead in the chain is that Motinul Haque Saikia drove the vehicle from Guwahati is correct. It may also be correct that his dead body was found by the side of National Highway 52 at Sipajhar but there is no evidence whatsoever on record as to who had discovered the dead body at site and as to whether the accused persons were in the vehicle at that time. 8. The fourth bead in the chain is that accused Hafizur Rahman was found driving the concerned vehicle with Sunil Roy as passenger and that they were detained by police at Mangaldai also is not made out by adducing evidence. PW 2 and PW 3 stated that at 9.00 p.m. on 05.07.2011 they heard shouting ‘thief, thief’. They came out and found that police and public were running after a person who fell in a pond and then wanted to climb up on the north bank when police arrested him. He identified himself as Sunil Roy. Then both of them saw accused Hafizur sitting in the police vehicle. PWs 2 and 3 have not stated anywhere that Hafizur was driving the stolen vehicle and that Sunil Roy was sitting therein. He identified himself as Sunil Roy. Then both of them saw accused Hafizur sitting in the police vehicle. PWs 2 and 3 have not stated anywhere that Hafizur was driving the stolen vehicle and that Sunil Roy was sitting therein. PWs 4 and 5 did not disclose anything about the incident. PW 6 is the medical officer who held postmortem over the dead body of deceased Motinul Haque Saikia and proved the injuries on his body. He had nothing to say as to where were the accused persons arrested and as to whether Hafizur was driving the vehicle. PW 7, Monsub Ali, stated that he heard the accused persons making confession before police. Undoubtedly, such a confession before police is not an admissible piece of evidence in view of the provisions of Sections 25 and 26 of the Evidence Act and so the evidence of PW 7 is of no help to the prosecution. PW 8 is a constable who brought the dead body from Singimari to Mangaldai Civil Hospital. He did not say that the accused persons were found with the vehicle. PW 9, Sirajul Haque, stated that at about 6.00 p.m. he heard uproar on the road in front of his house and came out to see that a dead body was lying on the road which was knocked down and on the following day the accused persons showed the place of occurrence to police. They disclosed that the dead body was left there after killing. This piece of evidence of PW 9 is similarly not admissible in evidence being confession made before police while in custody and there was no act of leading to discovery. PW 10, Putu Ali, was examined to prove that accused persons had confessed before police about killing the driver. PW 11, Jiarul Haque, deposed that he had seen a dead body by the side of National Highway No.52 on 06.07.2011 and also noticed that police had brought two persons but on being asked they said nothing. PW 12, Sub-Inspector of Police, Mintu Baro, stated that he received an order from the Additional Superintendent of Police (Headquarter) for going to Kharupetia Bus stand where the Additional Superintendent of Police (Headquarter) was present. The Additional Superintendent of Police showed him a TATA Mobile vehicle which had no number plate and stated that accused Hafizur Rahman was the driver of the vehicle. The Additional Superintendent of Police showed him a TATA Mobile vehicle which had no number plate and stated that accused Hafizur Rahman was the driver of the vehicle. He handed over Hafizur to him. He was informed by the Additional Superintendent of Police that three other persons had escaped under darkness. This Additional Superintendent of Police who claimed to have arrested Hafizur Rahman from the vehicle was not examined by the prosecution. Had he come to the witness box it could have been proved as to whether Hafizur was really driving the vehicle and accused Sunil alias Sibu was sitting as passenger or not. PW 13, Rabin Malakar, was the Officer-in-charge of Sipajhar Police Station at the relevant time. He deposed that Additional Superintendent of Police (Headquarter) informed him about the TATA Mobile coming from Guwahati and about detaining two persons at Mangaldai. The Additional Superintendent of Police informed him that the dead body recovered might be the driver of the detained vehicle. Thus, none of these thirteen witnesses anywhere stated that Hafizur was driving the vehicle and Sunil Roy was sitting inside as passenger. It is not clear as to how the learned Sessions Judge could have arrived at such finding. Since the supporting materials are not available on record, the point No. (d) of the chain of circumstances recorded by the learned Sessions Judge is not proved. 9. When the case is founded on the proposition that the two appellants had hired the vehicle at Guwahati and proceeded towards Changsari along National Highway No.52 and appellant Hafizur was found driving the vehicle and appellant Sunil was sitting therein as passenger while dead body of driver Motinul was discovered near the National Highway No.52, and these two foundations are not based on the evidence led by the prosecution, the whole of the prosecution story is bound to collapse. Consequently, the conviction of the appellants herein and the sentences imposed on them are liable to be set aside. Accordingly, the conviction and sentence of the appellants are set aside. They are set at liberty. 10. The appeal stands allowed. Send down the records.