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2016 DIGILAW 860 (GAU)

Md. Jamor Ali v. State of Assam

2016-09-16

AJIT SINGH, N.CHAUDHURY

body2016
JUDGMENT & ORDER : N. Chaudhury, J. In this appeal against conviction the judgment and order dated 25.08.2015 passed by learned Sessions Judge, Udalguri, in Sessions Case No.52 (U)/2015 has been called in question. By that judgment the learned Sessions Judge convicted accused Jamor Ali under Section 302 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for life and also to pay fine of Rs.1000/-, in default, to suffer rigorous imprisonment for one month. 2. In the aforesaid Sessions Case prosecution story is that one Musstt. Sahatun Nessa lodged an ejahar with the Officer-in-Charge of Rowta Police Station on 11.02.2015 informing that her husband was murdered by four accused persons including Jamor Ali by dealing blow on his head with an iron road. Rowta Police Station Case No.7/2015 under Sections 447/427/302/34 of the Indian Penal Code was registered against four persons and investigation started. After completion of investigation police submitted charge-sheet against accused Jamor Ali only and the other persons named in the ejahar were shown as witnesses for prosecution. The case was thereafter committed to the Court of Sessions by order dated 11.05.2015 and thereupon aforesaid Sessions Case No.52 (U)/2015 came to be registered. The learned Sessions Judge framed charges under Sections 447 and 302 of the Indian Penal Code against the sole accused. The particulars of charges having been read over and explained, the accused pleaded not guilty and claimed to be tried. 3. In course of trial prosecution examined 16 witnesses and proved nine documents. Out of these witnesses, PW 1 and PW 2 claimed to have seen the occurrence. PW 1 was the informant. According to her, at around 8.30 p.m. on the date of occurrence she went to the rear side of her house for responding to call of nature when she saw the sole accused called her husband away. Her son Sahanur Ali (PW 2) followed his father and thereafter she also followed. The accused took her husband inside his house and then assaulted with crowbar. She saw the accused assaulting her husband. So did her son. The body of her husband was left near the door of the house of the accused. Even in course of cross-examination she remained steady about witnessing the incident. 4. PW 2, Md. Sahinoor Ali, was aged about 15 years as on the date of deposition. She saw the accused assaulting her husband. So did her son. The body of her husband was left near the door of the house of the accused. Even in course of cross-examination she remained steady about witnessing the incident. 4. PW 2, Md. Sahinoor Ali, was aged about 15 years as on the date of deposition. The learned Sessions Judge having been sure that the witness had capacity to apply mind and understanding allowed him to depose on oath. According to this witness, accused called his father away from house at about 8.00 p.m. After 2/3 minutes he followed his father and saw his father lying injured on the verandah of accused. His mother also followed him. He stoutly claimed that he had seen his father being killed by Jamor Ali by means of iron rod. He also mentioned that Jamor Ali assaulted his father with crowbar. Thus, both PW 1 and PW 2 claimed to have seen the accused assaulting Nur Islam with a crowbar whereupon the victim instantaneously died and his dead body was lying near the house of the accused. 5. PW 3, Anowar Hussain, came to the place of occurrence after the incident had taken place. He saw the dead body of Nur Islam lying in a pool of blood and then he came to know that accused had killed Nur Islam. PW 4 (Moinul Hoque) similarly came to the place of occurrence after the incident had taken place. He did not see the incident himself but heard that the accused had dealt blow on the victim by rod. He noticed that accused was having a rod in his hand on the courtyard. This part of the evidence of PW 4 goes to show that till PW 4 arrived at the place of occurrence accused person was there with a rod in his hand. In course of cross-examination this witness further stated that the accused threatened him and asked to keep silence on being asked. 6. PW 5, Musstt. Nazima Khatoon, came to the place of occurrence on hearing commotion near her courtyard and saw Nur Islam lying dead in the courtyard of the accused person. She was told by the neighbours that the accused person had killed Nur Islam. She also noticed that the accused person was standing there holding an iron rod in hand and he was writhing. She was told by the neighbours that the accused person had killed Nur Islam. She also noticed that the accused person was standing there holding an iron rod in hand and he was writhing. The accused also tried to assault her son but he could not. This witness also says that accused is the son of her husband’s younger brother. PW 6 (Imtaj Ali) claimed that he was ploughing his field at around 6.30 a.m. His paddy field is situated near Rowta Police Station. At the time he was taking rest at around 6.30 a.m. he saw accused person appearing at the Police Station with a crowbar in his hand and disclosing to police that he had killed Islam. Police seized the crowbar from the hand of the accused person in his presence, he claimed. PW 7 (Samir Ali) is a cousin of the accused person. Hearing commotion he went to the place of occurrence and saw the victim lying dead. Since he is related to the accused person, public became furious and demolished their house also as his cousin Jamor Ali had caused death of Nur Islam. 7. PW 8, Hussain Ali, claimed that one day accused Jamor Ali and Najor Ali came to their house and threatened for which there was a village meeting and in that meeting victim Nur Islam had stated that accused person had not done a good thing by entering the house of PW 8 and raising a commotion. Accused Jamor Ali did not like it and threatened that he would see. According to this witness, this was the motive as to why the accused person killed Nur Islam. 8. PW 9, Arshad Ali, stated that one day at around 6/6.30 a.m. he had gone to Rowta Police Station. He was called by the police officer and having gone there he saw a person was present there. The Officer-in-Charge told him that that accused person had confessed of having killed Nur Islam alias Haki with a rod. Then police seized the road on being handed over by the accused person which he claimed to have used for committing the offence. Police made seizure of the rod vide Exhibit-2 and Exhibit-2 (1) is his signature. Exhibit-2 seizure list shows that seizure was made on 16.02.2015, which, on the other hand, is the date of arrest of the accused person. Police made seizure of the rod vide Exhibit-2 and Exhibit-2 (1) is his signature. Exhibit-2 seizure list shows that seizure was made on 16.02.2015, which, on the other hand, is the date of arrest of the accused person. Thus, prosecution has succeeded to prove that crowbar was seized by police in Rowta Police Station on 16.02.2015 in presence of PW 9. This deposition of PW 9 is in conformity with the deposition of PW 6 (Imtaj Ali. Even PW 15 (Haresh Chandra Baruah), who is the investigating officer in the present case, disclosed in course of cross-examination that the iron rod was seized on 16.02.2015. Although he had forwarded the accused after arrest to Magistrate for recording his confessional statement but ultimately the accused did not confess and no statement could be recorded by the learned Magistrate. 9. The learned Sessions Judge considered all the evidence on record including depositions of the two eye-witnesses. After having analysed the entire evidence on record including statements of as many as 16 witnesses the learned Sessions Judge was of the view that the incident took place on or about 8.30 p.m. on 10.02,2015 and ejahar was lodged on the following day at around 8.00 a.m. PWs 1 and 2 have vividly given the description about commission of the incident. They saw the accused person calling and taking away the victim from the house. They followed the victim and the accused and witnessed the incident. The learned Sessions Judge did not find any major contradiction in their statements and did not find anything to doubt veracity of what they had deposed. Having scrutinized the evidence adduced by PWs 1 and 2 and upon perusal of the evidence adduced by PW 9 (Arshad Ali) and PW 6 (Imtaj Ali) the learned Sessions Judge held the view that the accused person was guilty of committing murder of Nur Islam and accordingly passed the impugned judgment convicting him under Section 302 of the Indian Penal Code and accordingly sentenced him as aforesaid. 10. Having considered the evidence available on record and after hearing the learned Amicus Curiae, Ms. P. B. Bordoloi and Mr. D. Das, learned Additional Public Prosecutor, Assam, we are of the opinion that the learned Sessions Judge has not committed any error in appreciating evidence in true perspective. The testimony of the eye-witnesses remained intact even after prolonged cross-examination. 10. Having considered the evidence available on record and after hearing the learned Amicus Curiae, Ms. P. B. Bordoloi and Mr. D. Das, learned Additional Public Prosecutor, Assam, we are of the opinion that the learned Sessions Judge has not committed any error in appreciating evidence in true perspective. The testimony of the eye-witnesses remained intact even after prolonged cross-examination. The depositions of PW 6 and PW 9 show that the accused person himself surrendered to the Police Station six days after the occurrence and handed over the crowbar to police. Recovery of weapon from the accused has been duly proved by PW 6 and PW 9 who were thoroughly cross-examined. Besides, evidence of PWs 3, 4 and 5 also corroborates the evidence of PWs 1 and 2. These three witnesses, viz., PWs 3, 4 and 5, went to the place of occurrence after hearing commotion and till their arrival the accused person was present there with the crowbar in hand. PW 3 was also threatened by the accused person when he had asked him as to who had committed murder of Nur Islam. If the evidence of all the witnesses are considered in entirety they lead to only one inference that the accused person is guilty of committing the offence. In that view of the matter, we do not find any merit in this appeal. Accordingly, the appeal stands dismissed. The judgment of conviction and sentence under challenge in this appeal are hereby upheld. 11. The appeal stands dismissed. Send down the records.