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2016 DIGILAW 969 (GAU)

Nasir Uddin Laskar v. State of Assam

2016-11-02

AJIT SINGH, N.CHAUDHURY

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JUDGMENT & ORDER : N. Chaudhury, J. One Nasir Uddin Laskar as sole appellant has challenged his conviction under Section 302 of the Indian Penal Code in judgment dated 03.09.2012 passed by learned Sessions Judge, Cachar at Silchar in Sessions Case No.64/2012. He has been sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.2000/-, in default to suffer another period of rigorous imprisonment for three years. 2. The prosecution story is that one Mizabur Rahman Mazumdar lodged a written ejahar with Officer-in-charge of Silchar Police Station on 05.12.2011 informing that the present appellant had kidnapped his second son Sahadat Mazumdar and his nephew Janimul from his house and thereafter dead body of Sahadat was found at the first floor of the house of one Dulu Roy at Lane No.9 of Link Road. Police on the basis of the G.D. Entry went to the place of occurrence and recovered dead body of Sahadat and inquest was held by a Magistrate. In course of investigation the helper of the accused and one Atabur Rahman Laskar were examined under Section 164 of the Code of Criminal Procedure. Accused Nasir Uddin Laskar also made a statement before Magistrate under Section 164 of the Code of Criminal Procedure confessing his guilt. Upon completion of the investigation the prosecution filed charge-sheet against the appellant under Sections 364(A)/302/201 of the Indian Penal Code and thereupon the case was committed to Sessions vide order dated 20.03.2012 passed by the learned Magistrate. Sessions Case No.64/2012 of the Court of learned Sessions Judge, Cachar at Silchar was accordingly registered and in due course charges under Sections 364(A) and 302 of the Indian Penal Code were framed against the accused. The accused pleaded not guilty and claimed to be tried. 3. In course of trial prosecution examined as many as 13 witnesses and thereupon the accused was examined under Section 313 of the Code of Criminal Procedure. 3. PW 1, Mizabur Rahman Mazumdar, is the informant in this case. He stated that he received a telephonic call from his wife at around 3.45/4.00 p.m. on the day of occurrence informing him that the accused had taken away his son Sahadat Mazumdar alias Sahed and his nephew Janimul at around 1/1.30 p.m. and that they did not return till that time. He stated that he received a telephonic call from his wife at around 3.45/4.00 p.m. on the day of occurrence informing him that the accused had taken away his son Sahadat Mazumdar alias Sahed and his nephew Janimul at around 1/1.30 p.m. and that they did not return till that time. He then left the Assam Cooperative Apex Bank of which he was an employee and started towards his house. On way he met his nephew Janimul near Phatak Bazar who informed him that the accused had detained Sahadat somewhere near Nagatila and released him by an auto rickshaw. In the meantime he received another telephonic call from his wife informing him that she was already at Rangirkhari Outpost of Silchar Police Station in connection with this incident. The PW 1 immediately rushed to the Police Station and came to know that his son had been kept confined in the house of Dulu Roy at Lane No.9 of Link Road. He with the help of police rescued his son from the bathroom at the second floor of Dulu Roy’s house. His hands had been tied and mouth gagged with cloth. Bathroom was open. His son was dead and blood coming out from his mouth. Thereafter he lodged Exhibit-1 ejahar. He further stated that the accused worked in his house for fitting tiles. 4. PW 2, Dulu Roy, is the owner of the house where dead body of Sahadat was found. Dulu Roy’s family lived at the ground floor and construction was going on at first floor and second floor. The accused was working there along with his helpers. According to PW 2, he received a phone call from the accused at around 7/7.30 p.m. that he had killed a boy in the bathroom of PW 2. Upon receipt of the information PW 2 rushed to his house and found that people had already gathered there along with Ward Commissioner and police. They found out the dead body of Sahadat in a bathroom at the first floor. He gave statement under Section 164 of the Code of Criminal Procedure before the Magistrate and Exhibit-2 was the statement. 5. PW 3, Rajesh Roy, was the helper of accused Nasir Uddin alias Raju. He stated that on the date of occurrence he came to the house of Dulu Roy at around 9/9.30 a.m. for doing construction work. He gave statement under Section 164 of the Code of Criminal Procedure before the Magistrate and Exhibit-2 was the statement. 5. PW 3, Rajesh Roy, was the helper of accused Nasir Uddin alias Raju. He stated that on the date of occurrence he came to the house of Dulu Roy at around 9/9.30 a.m. for doing construction work. The accused came in the morning and was cleaning the tiles at the same floor and after one and half hour or so he left. After about two hours he came back with two boys. PW 3 was working in the same floor and he saw the boys. The boys said that they were hungry. So the accused gave Rs.10/- to PW 3 for bringing some sweets. PW 3 brought some sweets on Rs.10/-. These sweets were given to the two boys who ate them and after sometime they started demanding bat and ball as assured by accused to them. The accused became angry and shouted at them saying that they should keep quite. At this Sahadat gave a kick on the person of the accused who on turn pushed a piece of paper forcibly inside the mouth of the boy and thereby injured him. Blood was coming out of his mouth. Thereafter, accused wrapped a napkin on the mouth and around the neck of the boy and pulled him inside a bathroom. Then he came out and closed the door from outside. PW 3 claimed to have seen the whole episode along with the other boy who was present there. He identified the other boy present in Court. At evening he came to know that the boy inside the bathroom had already died. 6. PW 4, Janimul Haque Mazumdar, was aged about 12 years as on the date of deposition. He is the nephew of the informant and was present when Sahadat was assaulted and kept confined in the bathroom by the accused Nasir Uddin. The learned Sessions Judge first put some questions to the PW 4 to examine as to whether he was rationale and was of reasoning. On being satisfied that his answers were relevant and he was quite mature to understand the consequence of administering oath he proceeded to record his statement. This witness disclosed that victim Sahadat was his cousin and both of them were staying in the same compound. On being satisfied that his answers were relevant and he was quite mature to understand the consequence of administering oath he proceeded to record his statement. This witness disclosed that victim Sahadat was his cousin and both of them were staying in the same compound. The accused assured Sahadat of giving bat and ball and asked him to go with him. He heard the same and wanted to accompany them. Both of them sat on the bicycle along with the accused and came to Link Road at the first floor of a building where the accused was working as a tiles fitter. PW 3 was working there at that time. As they felt hungry and told this to the accused he brought some sweets through PW 3 and offered to them. After eating the sweets they demanded bat and ball when accused told them that it would be given only after the owner of the house gives him money. As it was already late he wanted to go back to house but the accused assaulted Sahadat Mazumdar and put a piece of paper forcibly inside his mouth and then kept him confined in a bathroom. He became frightened and requested to release Sahadat but the accused asked him to go. Then he took him to the downstairs and asked another person by telephone. He gave him Rs.10/- and Rs.10/- to the driver of an auto rickshaw and asked him to go home. The PW 4 got down to India Club and then proceeded to Premtola on foot. When he started towards his house at Berenga he met his uncle, the informant, on the road and thereupon he told him about the events. 7. PW 5, Atabur Rahman Laskar, is the brother-in-law of the accused. He deposed on oath and stated that he had a bicycle which he had lent to PW 3, Rajesh Roy, at around 9.00 O’clock on the day of occurrence and PW 3 returned the same at around 3.00 p.m. This bicycle was subsequently seized by police vide Exhibit-3. 8. PW 6, Sri S. K. Ghosh, was the Sub-Divisional Judicial Magistrate (Sadar), Silchar, at that time. He proved the statements recorded under Sections 164 of the Criminal Procedure. 8. PW 6, Sri S. K. Ghosh, was the Sub-Divisional Judicial Magistrate (Sadar), Silchar, at that time. He proved the statements recorded under Sections 164 of the Criminal Procedure. According to him, on 06.12.2011 i.e. on the next day after the occurrence police produced accused Nasir Uddin Laskar alias Raju before him in connection with G.R. Case No.4128/2011 arising out of Silchar P.S. Case No.2043/2011. The accused was identified by Constable Jasim Uddin Laskar. He explained the statutory warnings under Section 164 of the Code of Criminal Procedure to the accused whereupon the accused expressed his willingness for making confession. He was given three hours brooding time for reflection out of the reach of police personnel. At about 4.00 p.m. once again when the accused was produced before him he gave him statutory warning under Section 164 of the Code but even thereafter he expressed his willingness to make confession. He was convinced that the accused was voluntarily making confession and there was no coercion, threat or duress from the side of police. Thereafter, he recorded confessional statement of Nasir Uddin which is Exhibit-6. This witness was thoroughly cross-examined by the defence but no suggestion was put to him indicating that the confession made by the accused before him was not voluntary. 8. PW 7, Dr. Gunajit Das, hold post mortem over the dead body of Sahadat Mazumdar and found the following injuries :- “1. Condition of subject stout emaciated, decomposed etc.: The deceased child is found wearing a full shirt & a half pant. Built average in relation to reported age. Complexion moderately fair. Rigor Mortis present all over the body. Subconjunctival haemorrhage in the right-eye, pupils dilated. An in-situ red stripped ‘gamosa’ found tied in two rounds with a fixed knot in the upper half of the neck. Blood stain on the angle of mouth, left side. In-situ ‘gamosa’ removed & examined. Tip of tongue bitten by teeth. 2. Wounds – position and character : 3. Bruise Position size and nature : (1) Bluish bruise of lower lip found on reflection. 4. Mark of ligature on neck dissection, etc.: A depressed continuous ligature mark of width 5 cm found completely encircling the neck horizontally in the upper part showing pressure abrasion with parchmentised appearance at its floor and ochymased area at margins. On dissection tissues under the ligature mark found dried and hardened. Trachea found compressed anteroposterially. 4. Mark of ligature on neck dissection, etc.: A depressed continuous ligature mark of width 5 cm found completely encircling the neck horizontally in the upper part showing pressure abrasion with parchmentised appearance at its floor and ochymased area at margins. On dissection tissues under the ligature mark found dried and hardened. Trachea found compressed anteroposterially. There is also a contusion of soft tissues of size 3 x 3 cm at the anterior lower part of neck found on reflection. Hyoid bone healthy & intact.” In his opinion death was due to asphyxia resulting from ligature strangulation which was antemortem and homicidal in nature. 9. PW 9, Md. Nizamur Rahman Mazumdar, is the father of Janimul who accompanied the deceased along with the accused. According to him, on the day of occurrence at around 2.00 p.m. while he was at his shop he saw his son was running towards the accused person who was riding a bicycle. He forbade PW 4 not to go but he did not pay any heed. Then he saw the victim and his son were going with the accused person in a bicycle and the accused was riding the bicycle. 10. PW 10, Smti. Lipi Begum Mazumdar, is the mother of Janimul Haque Mazumdar. She also stated on oath that accused had taken away her son Janimul Haque and the victim Sahaat on the date of occurrence at around 2/2.30 p.m. by bicycle. Thus, from the evidence of all these witnesses it came to light that it is the accused who had enticed the victim and PW 4 and took them by his bicycle promising to give them bat and ball. 11. PW 11, Sukur Ahmed Laskar, is the Sub-Inspector of Police whereas PW 12, Mukut Kakoti, is the Town Sub-Inspector of Police. Both of them deposed in detail as to how the investigation was conducted and charge-sheet was submitted against the sole accused person. 12. PW 13, Asma Begum Mazumdar, is the mother of the victim Sahadat Mazumdar. She also stated in the same breath that the accused had taken away Sahadat Mazumdar and Janimul by his bicycle on the date of occurrence at around 2/2.30 p.m. but as they did not return till evening she informed PW 1 over telephone and thereafter she went out in search of her son and PW 4. She also stated in the same breath that the accused had taken away Sahadat Mazumdar and Janimul by his bicycle on the date of occurrence at around 2/2.30 p.m. but as they did not return till evening she informed PW 1 over telephone and thereafter she went out in search of her son and PW 4. She first went to the house of the accused at Nagatila where he was not available. Then she came to Rangirkhari Outpost and informed her husband over telephone. In the meantime her relatives also came there and sent her to house. At night she came to know that her son had already been dead. 13. In course of his examination under Section 313 of the Code of Criminal Procedure the accused denied correctness of the evidence adduced against him. He further stated that he did not know as to what he had deposed before the Magistrate under Section 164 of the Code of Criminal Procedure but police was present at that time. Relying on all these materials the learned Sessions Judge was of the view that the accused was guilty of committing murder of Sahadat Mazumdar and accordingly convicted him under Section 302 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for life and to pay a fine of Rs.2000/-, in default to suffer another period of rigorous imprisonment for three years. 14. We have heard Mr. B.B. Gogoi, learned counsel for the appellant and Mr. P. P. Baruah, learned Public Prosecutor, Assam. We have also perused the lower Court records. 15. Mr. Gogoi, learned counsel for the appellant would argue that the accused made correct statement of facts before the Magistrate under Section 164 of the Code of Criminal Procedure. He stated that father of the deceased was supposed to give Rs.33,000/- to him against the work done but he was not given the money. He had a tough time and to realize the amount from PW 1 he had kidnapped the victim but he had no intention to kill him. The victim died accidentally and so it is a fit case for converting the conviction under Section 302 of the Indian Penal Code into a one under Section 304 of the Indian Penal Code. 16. Per contra, Mr. The victim died accidentally and so it is a fit case for converting the conviction under Section 302 of the Indian Penal Code into a one under Section 304 of the Indian Penal Code. 16. Per contra, Mr. P.P. Baruah, learned Public Prosecutor would argue that the chronology of events goes to show that the accused kidnapped the two boys after premeditation. There is a continuous ligature mark around the neck of the deceased in addition to contusion on his lip. There was bleeding injuries on his face as well which show that the accused had really intended to kill the victim. According to learned Public Prosecutor, offence under Section 302 of the Indian Penal Code has been established beyond reasonable doubt in the present case and so there is no scope to interfere in the appeal. 17. In the present case there is no doubt that the accused had allured the victim and PW 4 by promising to give them bat and ball and this is how he succeeded to take them to the place of occurrence. The accused had worked in the house of the victim as a tiles fitter and so the child aged about 10 years had no reason to suspect him and he volunteered to accompany the accused only with the hope of getting a gift of bat and ball. PW 4 who overheard the assurance also wanted to get bat and ball for himself and so he also volunteered to accompany defying his father. Ultimately, they came to the place of occurrence and were waiting in anticipation of bat and ball. When this did not materialize the two children became angry. PW 3 had noticed that the two children were pressurizing the accused for the bat and ball he had assured to them and this led to the episode. PW 3 had witnessed that the victim gave a kick on the person of the accused whereupon he flared up and assaulted him. He pushed some paper forcibly inside the mouth of the victim child leading to bleeding injuries and then wrapped a gamosa (napkin) around his neck and took him inside a bathroom. Having come out of the bathroom he bolted it from outside. 18. Now, from the post mortem report it appears that there is continuous ligature mark around the neck of the innocent child but for which he died of asphyxia. Having come out of the bathroom he bolted it from outside. 18. Now, from the post mortem report it appears that there is continuous ligature mark around the neck of the innocent child but for which he died of asphyxia. The accused not only strangulated him to death but before that he had inflicted contusion injuries on his face apart from gagging his mouth with paper. The accused is an adult whereas the victim is merely 9/10 years old. Strangulating a child of 10 years by an adult cannot be justified by saying that it was unintentional or accidental. The accused himself stated that he had brought the victim and PW 4 to the place of occurrence in course of his statement under Section 164 of the Code of Criminal Procedure. The confessional statement of the accused was recorded by PW 6 after giving sufficient warning. The accused was informed about the statutory warnings and time for reflection was also given. Having perused the deposition of PW 6 and the Exhibit-6 statement we are of the opinion that there is no infirmity or irregularity in recording confessional statement of the accused person. The confession given by the accused person was voluntary and the same was corroborated by the testimony of PW 3 and PW 4. Such confession, therefore, being true and voluntary can be relied on. The rule of corroboration of confession is only a rule of prudence but not the requirement of law. In the case in hand, even from the statements of PW 3 and PW 4 it is amply clear that the accused person caused death of victim Sahadat and the medical evidence corroborate the ocular evidence of these witnesses. Considering the entirety of circumstances we do not feel that the learned Sessions Judge has committed any error in convicting the accused under Section 302 of the Indian Penal Code. There is no scope to hold that the accused did not intend to kill the victim or that he did not have knowledge that death would be caused to him because of such injuries. Having noted so, it is not possible to accept the submission of the learned counsel for the appellant. 19. The appeal is devoid of any merit. It is accordingly dismissed. The conviction and sentence passed by the learned Sessions Judge is hereby affirmed. Send back the records.