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2017 DIGILAW 132 (GAU)

Abdul Hasib v. State of Assam

2017-01-30

ACHINTYA MALLA BUJOR BARUA, AJIT SINGH

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JUDGMENT AND ORDER : Ajit Singh, J. Appellant Abdul Hasib 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. The trial court has, however, acquitted co-accused persons, namely, Ali Noor, Sonab Ali and Islam Uddin of the same charge. 2. The victim of the incident was Manjoy, aged about 40 years. 3. According to the prosecution case, Manjoy was resident of village Suladewa falling within the jurisdiction of Police Station Patharkandi, District Karimganj. Malaya (PW-1) is wife of Manjoy and Aswini (PW-3) is her elder brother. On 24.01.2004, Manjoy had gone to attend Dashdewa Weekly Market about 1 km away from his house. Just before the market, near one shop of Jabbar, he was dragged by some persons of Muslim community belonging to village Patiala. But while being dragged, Manjoy somehow managed to free himself. He then picked up a wooden log and dealt a blow with it on the head of Allauddin. The blow resulted into the death of Allauddin. The same persons again caught hold of Manjoy and dragged him towards a tree. Since Aswini was sitting on a bench in front of the shop of Jabbar, he witnessed the incident. He also intervened to save Manjot, but was chased away. He, therefore, ran for home to inform Malaya and she on being told about the assault on her husband rushed to the place of occurrence. There, she pleaded the persons dragging Manjoy to release him, but they declined. One Abdul Noor even forcibly dragged Malaya back to her house. Later, Malaya came to know that Manjoy was beaten mercilessly after being fastened with a tree, due to which, he died around 3 p.m. Malaya made ejahar exhibit 2 at Police Station Patharkandi on 24.10.2004. In the ejahar, she mentioned that 40-50 persons were responsible for beating Manjoy. She however named four accused persons, including the appellant as his assailant. 4. On receipt of the ejahar, Sub-Inspector - Alimuddin Mazumdar (PW-8) was entrusted with the investigation. He made the inquest of the dead body and also referred it for post mortem examination. Dr. P.K. Sinha (PW-5) conducted the post mortem examination on the dead body of Manjoy. He found multiple injuries on the body including one penetrating injury on the right forehead. He made the inquest of the dead body and also referred it for post mortem examination. Dr. P.K. Sinha (PW-5) conducted the post mortem examination on the dead body of Manjoy. He found multiple injuries on the body including one penetrating injury on the right forehead. The doctor in his post mortem examination report exhibit 3 opined that Manjoy died due to head injury and other ante mortem injuries. Alimuddin after investigation, filed a charge sheet against the appellant and three co-accused persons for offences under Sections 147, 342 and 302 of the Indian Penal Code. 5. During trial, all the accused persons abjured their guilt and pleaded false implication. The trial court mainly relying upon the evidence of Malaya, Landu Patni (PW-2) and Gokuli @ Kikli Devi (PW-4) convicted and sentenced the appellant as aforesaid, but acquitted the remaining three co-accused persons. 6. It is argued on behalf of the appellant that the trial court committed an illegality in convicting the appellant on the same set of evidence which has been found unreliable in respect to acquitted co-accused persons. It has also been argued that Malaya and the sole eye witness – Aswini, in their evidence, have not even mentioned the presence of appellant at the place of occurrence. Lastly, it has been argued that the trial court committed an illegality in presuming that the persons dragging Manjoy would have also killed him. The learned Additional Public Prosecutor, on the other hand, defended the conviction and sentence of the appellant as passed by the trial court. 7. After hearing the learned counsel for the parties and perusing the record we are of the considered view that the appeal deserves to be allowed. The prosecution examined Aswini as an eye witness as at the time of incident he was sitting on a bench in the shop of Jabbar in front of which the incident took place. Aswini has testified that he saw Jamal, Alauddin and Kalam dragging and assaulting Manjoy. According to him, he even asked Alauddin not to assault Manjoy by touching his feet but they continued with the assault. Aswini says that Azizur, Amir and Bonda started the assault on Manjoy and when he offered resistance, Jamal chased him away whereafter he ran for home and informed Malaya about the incident. Malaya in her evidence has admitted that she was informed about the incident by Aswini. Aswini says that Azizur, Amir and Bonda started the assault on Manjoy and when he offered resistance, Jamal chased him away whereafter he ran for home and informed Malaya about the incident. Malaya in her evidence has admitted that she was informed about the incident by Aswini. According to her, when she rushed to the place of occurrence, she saw Jamal, Azizur, Hamir and Kalam in the crowd which was dragging Manjoy. She also says that she had requested these persons to release Manjoy but they refused to do so and instead threatened to kill him. According to Malaya, she was then dragged back to her house by Abdul Noor and later came to know that Manjoy was beaten to death. As mentioned above, both Malaya and Aswini are closely related to Manjoy and had the appellant dragged or assaulted or even been present at the scene of occurrence, they would have surely testified against him. It is true that Malaya mentioned the name of appellant in the ejahar as one of the assailants, but, she, in her cross examination, has admitted to have done so merely on suspicion. 8. Landu Patni (PW-2) says that he saw from his house Manjoy being dragged by the appellant, Alauddin and one Abdul Hazib towards the shop of Jabbar. Gokuli (PW-4) on the other hand says that she saw Islamuddin and appellant dragging Manjoy. Islamuddin has been acquitted by the trial court on the same set of evidence whereas Abdul Habib was not even prosecuted. And as mentioned above, Alauddin died due to injury caused on his head by none other than Manjoy. Not only this, both these witnesses have admitted in their cross examination that they did not see who actually beat Manjoy and killed him. It is also to be noted that unlike Malaya and Aswini, the assailants did not force them away from the place of occurrence. Therefore, why they did not see, who actually beat and killed Manjoy, is a mystery. With this evidence of Landu Patni and Gokuli, we do not consider it safe to infer that appellant committed the murder of Manjoy. And like other co-accused persons, who have been acquitted by giving benefit of doubt, he too is entitled for the same benefit. 9. For these reasons, we set aside the conviction and sentence of the appellant. The appellant is reportedly in jail. And like other co-accused persons, who have been acquitted by giving benefit of doubt, he too is entitled for the same benefit. 9. For these reasons, we set aside the conviction and sentence of the appellant. The appellant is reportedly in jail. He be released forthwith, if not wanted in connection with any other case. 10. The appeal is allowed.