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2016 DIGILAW 979 (GAU)

Nazrul Hoque Choudhury v. State of Assam

2016-11-04

AJIT SINGH, N.CHAUDHURY

body2016
JUDGMENT AND ORDER Ajit Singh, J. The sole appellant Nazrul Hoque Choudhury has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.5000/- with default stipulation. 2. According to the prosecution case, Anisur Rahman owned a Cassette Shop. And near the shop of Anisur Rahman, the appellant also had a scooter garage. These shops were situated in the commercial area of Rangia Township falling within the jurisdiction of Police Station Rangia. On 1.12.2002, Anisur Rahman had left his Motor Cycle in the Garage of appellant for repairing. After the Motor Cycle was repaired, it was delivered to Anisur Rahman through an employee of appellant. But, Anisur Rahman refused to take the delivery and for some reason slapped the delivery man. After sometime, around 3 p.m., the appellant hacked Anisur Rahman to death by causing multiple injuries with a khukhri (dagger). This he did on the road near his garage. Immediately thereafter, the appellant happened to meet Assistant Sub-Inspector - Sishir Mazumdar nearby. At that time, he had also held a blood stained khukhri in his hand. Seeing Sishir Mazumdar, the appellant confessed to him about causing grievous injuries to Anisur Rahman. Sishir Mazumdar then brought the appellant to Police Station Rangia along with the khukhri on his scooter. A General Diary Entry exhibit 5 in this regard was made at the Police Station. On this information, Sub-Inspector- Babul Chandra Bora (PW-8) along with Executive Magistrate K.C.Gogoi and staff proceeded to Rangia Polyclinic where Anisur Rahman was shifted, but he died on way. There, KC Gogoi prepared the inquest report exhibit 2 of the body. From Polyclinic, the body was referred to Guwahati Medical College and Hospital for post mortem examination. 3. Babul Chandra Bora after referring the body for post mortem examination, proceeded to the place of occurrence. There, he seized one blood stained hawai sandal, some blood stained sand, green leaves and one motor cycle. The seizure memo of these articles is exhibit 10. Babul Chandra Bora then returned to Police Station. And at the Police Station, he seized one blood stained Nepali Khukhri and one blood stained T.Shirt from the possession of appellant. The seizure memo of these articles is exhibit 9. Pranjal Deka (PW-11), Md. Abu Safian (PW-14) and Syed Maleab Ahmed were witnesses to the seizure of khukhri and T.Shirt. Babul Chandra Bora then returned to Police Station. And at the Police Station, he seized one blood stained Nepali Khukhri and one blood stained T.Shirt from the possession of appellant. The seizure memo of these articles is exhibit 9. Pranjal Deka (PW-11), Md. Abu Safian (PW-14) and Syed Maleab Ahmed were witnesses to the seizure of khukhri and T.Shirt. Babul Chandra Bora formally arrested the appellant around 10 p.m. He was later transferred to another Police Station and therefore, Sub-Inspector Bhagwan Baishya (PW-9) completed the investigation. He collected the post mortem examination report and filed the charge sheet against the appellant for his prosecution under Section 302 of the Indian Penal Code. 4. It is not in dispute that as many as 10 cut injuries were found on the body of Anisur Rahman and even his left hand was chopped off. Dr. SJ Deka had conducted the post mortem examination. He in his post mortem examination report exhibit 1 opined that Anisur Rahman died due to multiple cut injuries which were ante mortem in nature and caused by heavy sharp cutting weapon. The post mortem examination report of Dr. SJ Deka was proved by his Professor Dr. BC Roy Medhi (PW-6). 5. During the trial, the appellant abjured his guilt and pleaded false implication. The trial court, however, relying upon the evidence adduced by the prosecution, convicted and sentenced him, as aforesaid. 6. The learned counsel for the appellant has argued that there is absolutely no evidence to connect the appellant with the murder of Anisur Rahman. He has also argued that in fact no article or weapon was seized from the possession of appellant. The learned Additional Public Prosecutor, in reply, defended the conviction and sentence of the appellant. 7. There is no eye witness to the incident and the entire case of the prosecution is based on circumstantial evidence. We shall, therefore, examine whether the circumstantial evidence in the fact situation of the case connect the appellant with the commission of crime in question. 8. Md. Meer Hussain (PW-1) has a shop near the place of occurrence. According to his evidence, Anisur Rahman had left his motor cycle for repairs in the garage of appellant. And on the date of incident, when the motor cycle was sent to Anisur Rahman after repair through one delivery boy he did not accept the delivery. 8. Md. Meer Hussain (PW-1) has a shop near the place of occurrence. According to his evidence, Anisur Rahman had left his motor cycle for repairs in the garage of appellant. And on the date of incident, when the motor cycle was sent to Anisur Rahman after repair through one delivery boy he did not accept the delivery. This resulted into an altercation and Anisur Rahman slapped the delivery boy, who then left the motor cycle and returned back. Md. Meer Hussain also testified that at 3 p.m. he came to know that Anisur Rahman had been killed. He did not claim to have seen the appellant assaulting Anisur Rahman. The prosecution, therefore, declared him hostile, but in cross examination also, it could not bring out anything from him against the appellant. Ashim Choudhury (PW-2) worked near the garage of appellant. Since this witness did not say anything against the appellant, he too was declared hostile by the prosecution. Ankur Biswas (PW-3) worked in a nearby shop. He has not deposed anything against the appellant. According to him, he only heard from public that appellant had killed Anisur Rahman. Md. Amir Ali (PW-4) has not said even a word against the appellant. Babul Kalita (PW-5) was an employee in a Grille Shop near the shop of Anisur Rahman. He also did not depose anything against the appellant and was declared hostile by the prosecution. It is, thus, seen that although the prosecution examined number of witnesses, who were present near the place of occurrence at the time of incident, but, none supported its case against the appellant. 9. Dr. B.C.Roy Medhi (PW-6) has proved the post mortem examination report exhibit 1 of Dr. SJ Deka, who had conducted the post mortem examination on the dead body of Anisur Rahman. Likewise, Kshitish Chandra Pegu (PW-7) has proved the inquest report exhibit 2 of the dead body. Neither the opinion given in the post mortem examination report nor the finding of inquest report has been disputed by the appellant. These reports however do not connect the appellant with the murder of Anisur Rahman. 10. Babul Chandra Bora is the Investigating Officer. Likewise, Kshitish Chandra Pegu (PW-7) has proved the inquest report exhibit 2 of the dead body. Neither the opinion given in the post mortem examination report nor the finding of inquest report has been disputed by the appellant. These reports however do not connect the appellant with the murder of Anisur Rahman. 10. Babul Chandra Bora is the Investigating Officer. According to his evidence, on the date of incident, around 3.15 p.m., Assistant Sub-Inspector - Sishir Mazumdar came at the police station and informed that the appellant had surrendered to him with a blood stained khukhri in his hand and that appellant also confessed about causing grievous injuries to Anisur Rahman. Babul Chandra Bora has testified that General Diary Entry exhibit 5 was made on this information whereafter he first went to Polyclinic and then to the place of occurrence. According to him, at the place of occurrence, he recorded the statements of witnesses and made seizure of articles found lying there vide seizure memo exhibit 10. Babul Chandra Bora has further deposed that he seized one blood stained khukhri and one blood stained T.Shirt from the possession of appellant vide exhibit 9 at the Police Station. It is to be noted that Sishir Mazumdar before whom the appellant is said to have surrendered and confessed his guilt was not examined by the prosecution. And there is no other evidence of confession of appellant before anyone else. Even otherwise the alleged confession made by the appellant to Sishir Mazumdar is inadmissible because he was admittedly a Police Officer. Babul Chandra Bora in his cross examination has also admitted that the seized khukhri was not sent for chemical analysis. And there is nothing on record to show that even the seized T.Shirt was sent for such examination. It is therefore difficult to hold that seized khukhri and T.Shirt were smeared with blood. 11. Lastly, we are also convinced that the prosecution has even failed to prove the seizure of khukhri and T.Shirt from the possession of appellant. The seizure memo exhibit 9 reveals that these articles were seized by Babul Chandra Bora in the presence of Pranjal Deka (PW-11), Md. Abu Sufian (PW-14) and Syed Maleab Ahmed. Pranjal Deka (PW-11) has testified that one police man had showed him at the police station one khukhri saying that it was seized from the appellant. The seizure memo exhibit 9 reveals that these articles were seized by Babul Chandra Bora in the presence of Pranjal Deka (PW-11), Md. Abu Sufian (PW-14) and Syed Maleab Ahmed. Pranjal Deka (PW-11) has testified that one police man had showed him at the police station one khukhri saying that it was seized from the appellant. But he has also admitted that he cannot say from whom the khukhri was seized and from where it was found. He has then further admitted that he does not know which police man had shown the khukhri. Md. Abu Sufian (PW-14) has admitted in the cross examination that he had signed the blank paper in the police station. Thus, apparently no seizure was made before him. The third seizure witness namely Syed Maleab Ahmed has not been examined by the prosecution. Not only this, Nomal Chandra Gogoi (PW-10) who was In-charge of Rangia Police Station and had made the General Diary Entry on the basis of information given by Sishir Mazumdar has admitted in his cross examination that he did not see khukhri in the hand of appellant. For these reasons, it is difficult to believe that khukhri or T.Shirt (blood stained) were seized from the possession of appellant. 12. We accordingly set aside the impugned conviction and sentence of the appellant and acquit him of the charge under Section 302 of the Indian Penal Code. He is reportedly in jail and therefore, he be released forthwith. The appeal is allowed.