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2017 DIGILAW 1562 (GAU)

Ansar Ali v. State of Assam

2017-12-21

HITESH KUMAR SARMA, HRISHIKESH ROY

body2017
JUDGMENT : HRISHIKESH ROY, J. Heard Ms. B. Sarma, learned amicus curiae, appearing for the appellant. Ms. S. Jahan, the learned Addl. Public Prosecutor, Assam represents the State. 2. This appeal from Jail challenges, the judgment dated 4.6.2014, passed by the learned Seissions Judge, Karimganj in Sessions Case No. 65/2009, whereby the accused/appellant was found guilty and was convicted under section 302/34 of the IPC and was sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 2,000 and in default, to undergo further rigorous imprisonment for one month. 3. The prosecution case, as revealed from the FlR filed by Abdul Haque (PW.2), the son of the victim Amir Ali, is that on 22.3.2009, at about 8:30 p.m., while his father went to the Masjid of their locality for offering Eshar namaaz, he was attacked by accused Jiarup, Jainat, Bareque Ali and Ansar Ali, causing injuries. Later he succumbed to his injuries at the Kaliganj PHC. 4. On the basis of the FIR (Ext. 1), the Karimganj P.S. Case No. 121/2009, under section 302/34 of the IPC, was registered and the criminal process was set in motion and eventually charge under section 302/34 of the IPC was framed against all the four accused persons, named in the FIR. The accused persons pleaded not guilty to the charge and claimed to be tried. 5. After commencement of trial, due to continuous absence of accused/appellant Ansar Ali, the case was split up and trial proceeded against the rest three charge sheeted accused, namely, Jairup Ali, Jainat Uddin and Bareque Ali. During the trial, the accused Jairup Aii died on 11.5.2011 and accordingly the case against him stood abated. The other two accused facing trial absconded at the stage of argument and ultimately the case against Jaynal Uddin and Bareque Ali had to be filed. In the meantime, the accused/appellant Ansar Ali was arrested and the trial against him commenced and he is the only convicted accused under the impugned judgment. 6. During trial, the prosecution examined altogether 12 witnesses, including the Medical Officer and the Investigating Officer, while the defence examined none. Five witnesses turned hostile. During the examination of the accused under section 313, Cr.PC, he pleaded his innocence. 7. The PW2 Abdul Haque is the informant of the case. He was present at the Seni Kanimile Masjid, the place of occurrence, when the incident took place. Five witnesses turned hostile. During the examination of the accused under section 313, Cr.PC, he pleaded his innocence. 7. The PW2 Abdul Haque is the informant of the case. He was present at the Seni Kanimile Masjid, the place of occurrence, when the incident took place. He stated that accused Jairup Ali hacked his father Amir Ali on his head with a dao and other three named accused including the appellant Ansar Ali, fled the mosque with Jairup. 8. The five witnesses who were present at the place of occurrence, namely, Abdul Rakib, Nur Uddin, Abdul Jalil, Kamal Uddin anti Rayub Ali (PWs 1, 3, 4, 6 and 10), did not support the prosecution story and accordingly, they were declared to be hostile witnesses and were cross-examined by the prosecution. During cross, the PW.4 mentioned Amir Ali's death avenged by his son Abdul Haque and his associates by killing Jairup and they had to spend time in jail. The other hostile witnesses mentioned about the darkness at the P.O., for which they did not support the prosecution story. 9. The witness Abdul Haque (PW2) is the son and Abdul Matin (PW5) and Abdul Razak (PW7) are the brothers of the victim and can be categorized as eye witnesses. The brothers saw Jairup Ali and Jaynal Uddin hacking the victim but did not testify that the accused/appellant Ansar Ali running away from the place of occurrence, following the accused Jairup, who was carrying the blood stained dao. The son in his testimony mentioned that he saw Jairup hacking his father and all four accused running away. In their cross-examination all these close relatives of the victim stated that they had to spend time in jail in the case relating to the murder of Jairup Ali, the main accused in this case. 10. The other person present at the place of occurrence was the imam Anowarul Haque (PW8) but he did not see who assaulted the victim. He also stated that the masjid had no electricity connection and was lit by candles only. For the remaining party of his testimony, he is a hearsay witness. 11. PW11, Dr. Ranjit Baidya is the Medical Officer of the Karimganj Civil Hospital, who conducted post mortem on the dead body. He also stated that the masjid had no electricity connection and was lit by candles only. For the remaining party of his testimony, he is a hearsay witness. 11. PW11, Dr. Ranjit Baidya is the Medical Officer of the Karimganj Civil Hospital, who conducted post mortem on the dead body. The post mortem report reveals the following injury on the victim: “(i) Incised would 5” X 1” X 4” in right parietal region obliquely cutting skin, underlying muscles and bones and right parietal lobes.” According to the PW11, the death was due to combined effect of haemorrhage, shock and head injury. The injury was ante-mortem in nature. What is relevant here is the single incised injury and the clear identification of the person who inflicted that wound, by the eyewitnesses. 12. The Investigating Officer of the case is PW12, Basir Uddin Laskar. He stated that on 23.3.2009, he was the O.C., of the Kaliganj Police Out Post and on that date, at about 1 a.m., one Abdul Haque (PW2) brought the dead body of his father Amir Ali to the Out Post and informed that Jiarup, Jainal, Bareque Ali and Ansar Ali, assaulted his father, resulting in his death. He made the G.D. Entry No. 297, dated 23.3.2009 and forwarded the same to the Karimganj Police Station and eventually the Karimganj P.S. Case No. 121/2009, under section 302/34 of the IPC was registered. The I.O. visited the place of occurrence, prepared the sketch map (Exhibit 4), made inquest (Exhibit 5) of the dead body and forwarded the same to Karimganj Civil Hospital, for post mortem examination. He also recorded statement of the witnesses and after completion of the investigation submitted the charge sheet (Exhibit 6). 13. The above analysis of the evidence shows that none of the witnesses had ascribed any active role to the accused/appellant, in the assault on Amir Ali, who suffered the single incised wound. Therefore, the only way in which the conviction can be sustained is if the attack by Jairup Ali and. Jaynal Uddin, was in furtherance of the common intention with the appellant Ansar Ali, under section 34 of the IPC. No person can be made accountable for criminal act committed by another but section 34 of the IPC makes an exception to this principle. Jaynal Uddin, was in furtherance of the common intention with the appellant Ansar Ali, under section 34 of the IPC. No person can be made accountable for criminal act committed by another but section 34 of the IPC makes an exception to this principle. The theory of joint liability of a criminal act is explained by the Supreme Court, in Goudappa v. State of Karnataka, (2013) 3 SCC 675 and we can be benefited by the Supreme Court's explanation of the legal principle on joint criminal liability, under section 34 of the IPC: “………… The essence of that liability is to be found in the existence of common intention, animating the accused leading to the doing of a criminal act in furtherance of such intention. It deals with the doing of separate acts, similar or adverse by several persons, if all are done in furtherance of common intention. In such situation, each person is liable for the result of that as if he had done that act himself. Section 34 of the Indian Penal Code, thus, lays down a principle of joint criminal liability which is only a rule of evidence but does not create a substantive offence. Therefore, if the act is the result of a common intention that every person who did the criminal act share, that common intention would make him liable for the offence committed irrespective of the role which he had in its perpetration. Then how to gather common intention? The common intention is gathered from the manner in which the crime has been committed, the conduct of the accused soon before and after the occurrence, the determination and concern with which the crime was committed, the weapon earned by the accused and from the nature and injury caused by one or some of them. Therefore, for arriving at a conclusion whether the accused had the common intention to commit an offence of which they could be convicted, the totality of circumstances must be taken into consideration.” 14. If we analyse the circumstances in the present case, no evidence is seen which suggests that there was common meeting of mind of the appellant with that of the two attackers, namely, Jairup Ali and Jaynal Uddin, in the fatal assault made on Amir Ali. If we analyse the circumstances in the present case, no evidence is seen which suggests that there was common meeting of mind of the appellant with that of the two attackers, namely, Jairup Ali and Jaynal Uddin, in the fatal assault made on Amir Ali. Their presence in the verandah of the masjid is seen but most significantly no evidence is led to indicate that the assault made upon Amir Ali, was in furtherance of common intention amongst the four accused. The evidence on the appellant fleeing the masjid could be for various other reasons or he could even be one of the persons chasing the accused. Therefore, to rope in the appellant with the murder charge under section 34 of the IPC, without any acceptable evidence to prove the common intention, will cause miscarriage of justice. In our considered opinion, the evidence is not available to show that the appellant had common intention to commit the murder of Amir Ali, who was attacked by Jairup Ali and Jaynal Uddin, as was seen by all the eye witnesses. In fact, the accused Jairup who made the single fatal assault was killed by the family members of the deceased Amir Ali. The appellant, in our assessment of the evidence, is entitled to the benefit of the doubt and accordingly we set aside the impugned conviction and the sentence dated 4.6.2014, passed by the learned Sessions Judge, Karimganj in the Sessions Case No. 65/2009. The appeal stands allowed accordingly. The appellant be released forthwith. 15. Before parting, we place on record our appreciation of the service rendered by Ms. B. Sarma, the learned amicus curiae, who shall be entitled to the fee of Rs. 7,000. Send down the LCR, with a copy of this judgment.