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2017 DIGILAW 703 (GAU)

MD. HAZARAT ALI v. STATE OF ASSAM

2017-05-31

PARAN KUMAR PHUKAN, UJJAL BHUYAN

body2017
JUDGMENT : P.K. Phukan, J. The judgment and order dated 12.04.2013 passed by the learned Sessions Judge, Udalguri in Sessions Case No. 122 (D-U)/2012 convicting the accused appellants under section 302 read with section 34 of the IPC and sentencing them to rigorous imprisonment for life and to pay fine of Rs. 1,000/- each with default stipulations is the subject matter of challenge in this appeal. 2. The facts of the case in brief are that on 01.03.2003 at about 11 AM when the deceased Hamid Ali, husband of the informant was working in his paddy field situated at a little distance away from his house, both the accused appellants along with the other accused named in the FIR armed with lethal weapons like dao, lathi, dagger, etc came and suddenly attacked him with the weapons causing grievous injuries to him. When his elder brother offered resistance he was also assaulted, as a result of which he also sustained injuries. Both the injured were immediately shifted to Mangaldoi Civil Hospital but Hamid Ali succumbed to the injuries on that very day and his brother was discharged after two days. 3. Written FIR was lodged by the wife of the deceased, namely, Musstt. Felani Khatun on the day of the occurrence itself on the basis of which a case was registered and on completion of investigation charge sheet was laid against as many as 7 accused persons including the present appellants. Two of the accused persons, namely, Abul Kasem and Nausad Ali have already died and the accused Meher Ali and Jeher Ali were absconding but they were subsequently caught and now they are under trial. The accused Jabed Ali is still absconding and the case against him was filed. 4. In order to prove the charge under section 302 read with section 34 of the IPC the prosecution examined 8 witnesses including the Medical Officer and Investigating Officer. One witness has been examined as a Court Witness. The accused appellants denied their involvement when questioned under section 313 of the Cr.P.C., 1973 and took the plea of alibi and in support of their case they examined themselves as witnesses and also examined another witness. The learned Sessions Judge on conclusion of the trial found the accused appellants guilty under section 302/34 of the IPC and convicted and sentenced them as stated above. 5. Heard Mr. The learned Sessions Judge on conclusion of the trial found the accused appellants guilty under section 302/34 of the IPC and convicted and sentenced them as stated above. 5. Heard Mr. B.M. Choudhury, learned counsel appearing for the accused appellants and Ms. B. Bhuyan, learned Addl. Public Prosecutor, Assam. 6. Mr. Choudhury, learned counsel for the appellants contends that the trial Judge ought to have acquitted the accused appellants on benefit of doubt for the great many controversies in the evidence by almost all the prosecution witnesses. Inviting our attention to the evidence of P.W. 6 and C.W. 1 he has submitted that the controversies regarding the evidence given by these two witnesses rendered their testimony unworthy of credence. Prosecution should not have been permitted to examine P.W. 6 as a prosecution witness as he was not a cited witness. That apart, he should not have been allowed to be re-examined to facilitate him to make improvement of the earlier version given by him before the court. Similarly, CW 1 who has been examined as a court witness is a cited witness but she has not been examined by the prosecution and the learned trial Judge has committed manifest illegality by examining the charge sheet cited witness as a court witness. The next contention of Mr. Choudhury is that PW 5 is a child witness aged about 10 years at the relevant time and no reliance can be placed in his evidence as he is prone to tutoring being a close relative of the deceased. 7. In controversion, the learned Addl. Public Prosecutor argued that P.W. 6 is an eye witness to the occurrence and he was himself injured and though he has not been cited as a witness in the charge sheet no illegality has been committed by the learned lower court allowing his examination as a prosecution witness. It is further argued that though the prosecution failed to examine the charge sheet cited witness (C.W. 1) as a prosecution witness, no illegality has been committed by the learned Sessions Judge by examining him as a court witness to arrive at a just decision of the case. 8. Before adverting to the submissions advanced by the learned counsel we have considered it necessary to carefully evaluate the evidence on record. There is no dispute regarding the death of the deceased Hamid Ali due to the injuries sustained by him. 8. Before adverting to the submissions advanced by the learned counsel we have considered it necessary to carefully evaluate the evidence on record. There is no dispute regarding the death of the deceased Hamid Ali due to the injuries sustained by him. Autopsy on the dead body was conducted by P.W. 7 Dr. Durgeswar Sarma who was posted as Senior Medical and Health Officer in the Mangaldoi Civil Hospital at the relevant time and his findings are as follows:- "A dead body of a male person aged about 35 years, growth average. Dead body is covered with mud, rigor-mortis present in both upper limbs and found the following injuries :- 1. Cut injury on the vertex size 6 inch x inch x 3 inch cutting the skull bone and brain matters. 2. Cut injury on the cheek right side, size 4inch x inch x 3 inch. 3. Deep cut injury on the right side of the neck. Size 6 inch x 1 inch including great vessels and structures. 4. Cut injury on the right thigh, Size 4 inch x 1 inch x 3 inch. 5. Stab injury on the abdomen in the right side of umbilicus size 1inch x inch 33 inch injuring the small intestine. 6. A cut injury on the right shoulder. Size 4 inch x 1 inch x 1 inch." 9. The doctor opined that death was due to hemorrhage and shock as a result of the injuries sustained. Inquest on the dead body was held by P.W. 8 Sri Kanak Saikia the Investigating Officer of the case and he also, while holding the inquest, noticed the above mentioned injuries on the dead body of the deceased. The evidence of the doctor coupled with the evidence of the Investigating Officer, autopsy report and the inquest report coupled with the evidence of the other witnesses amply proved that the deceased died due to the injuries sustained by him which was caused by sharp weapon. 10. Now the pertinent question is who caused the injuries to the deceased which resulted in his death. 11. Prosecution in this case is relying on the testimonies of P.W. 1 Musstt. Felani Khatun, wife of the deceased, P.W. 5 Sahadul Islam, nephew of the deceased, P.W. 6 Jan Mia, elder brother of the deceased and C.W. 1, Shayaban Nessa. 10. Now the pertinent question is who caused the injuries to the deceased which resulted in his death. 11. Prosecution in this case is relying on the testimonies of P.W. 1 Musstt. Felani Khatun, wife of the deceased, P.W. 5 Sahadul Islam, nephew of the deceased, P.W. 6 Jan Mia, elder brother of the deceased and C.W. 1, Shayaban Nessa. P.W. 1 claims to have seen the accused appellants and the other accused named in the FIR going towards the paddy filed where her husband was working while she was standing in front of her house. She also claims that they assaulted her husband in her presence. She named the accused appellants Ashad Ali and Hazrat Ali and the other accused Kasem, Noushad and Jabed and stated that the names of two other persons who accompanied them were not known to her. All of them gheraoed her husband and assaulted him which resulted in his death. On her arrival she found her husband in a semi-conscious state and ran to the police station, but since the In-Charge was absent she came back and again accompanied by the Gaonburah went to the police station and filed the FIR. In the FIR, date, time and manner of commission of the crime has been clearly spelt out including the names of the accused and there is nothing to suspect embellishment or afterthought. The FIR was promptly lodged and police also arrived at the spot after receiving the FIR and held inquest on the dead body and sent the same for post mortem examination. However, on perusal of her evidence we have noticed some improvements made by her during her evidence in court. The Investigating Officer, P.W. 8 confirmed that she did not state before him that she saw the accused going towards the paddy field and she was present when they assaulted her husband. From the evidence of P.W. 5, who is her nephew also it is found that she arrived at the spot when the accused appellants were leaving the place after assaulting the deceased. Because of the marked improvements made during the trial her evidence that she saw the accused appellants and other accused assaulting her husband is to be eschewed from consideration. Because of the marked improvements made during the trial her evidence that she saw the accused appellants and other accused assaulting her husband is to be eschewed from consideration. However, that part of the statement that she found her husband in a semi-conscious state and ran to police station and thereafter, accompanied by Gaonburah again went to the police station and lodged the FIR cannot be disbelieved. She denied the defence suggestion that on the previous night while her husband was committing theft, he was chased by some people who assaulted him and he died due to the assault. 12. Prosecution is relying heavily on the testimony of P.W. 5 Sahadul Islam, nephew of the deceased who claims to have seen the accused appellants and other accused assaulting the deceased with the weapons in their hands. At the relevant time, he was aged about 10 years and he was also working with the deceased in the paddy field at the time of occurrence. His evidence is that when he saw the accused appellants and the other accused named in the FIR assaulting his maternal uncle he ran to a nearby place out of fear. In his evidence he had stated the nature of the weapons held by each of the accused persons. However, he admitted that no such statement was made by him before the Investigating Officer. On careful scrutiny of his evidence we find him wholly reliable and trustworthy. He was the only person present with his uncle at the relevant time and he saw the accused assaulting and causing injuries to his uncle. He ran away out of fear which is quite natural. Defence could not elicit anything from him in cross-examination. Though he was a child aged about 10 years at that time, his evidence cannot be discarded only because of this reason. 13. Close on the heels of P.W. 1 and P.W. 5 prosecution witness P.W. 6, elder brother of the deceased stated that at the relevant time he was working in the paddy field of his deceased brother on a daily wage basis. According to him, the accused persons armed with dao, lathi etc. 13. Close on the heels of P.W. 1 and P.W. 5 prosecution witness P.W. 6, elder brother of the deceased stated that at the relevant time he was working in the paddy field of his deceased brother on a daily wage basis. According to him, the accused persons armed with dao, lathi etc. came to the spot and the accused Noushad assaulted his brother on his head with a "Ram" dao and when he came to rescue him, he was also assaulted by the accused Kasem on both his hands due to which he sustained injuries and fell down. In cross-examination, he denied the presence of the appellants at the place of occurrence at that time and wanted to put the entire blame on the other accused who are not facing the trial. This witness resiled from his earlier version and he was again re-examined on a subsequent date at the instance of the prosecution. This time he changed his earlier stand and gave different version. According to the new version the appellant Ashad Ali at first assaulted his brother with a "Ram" dao and thereafter, Jabed assaulted him with a spear which passed through his body. The other accused Noushad assaulted his brother with a "Ram" dao on his back, Kasem assaulted him with a dagger and Meher Uddin and Oberul assaulted him with iron rods. In his re-examination he only implicated the accused appellant Ashad Ali and nothing has been stated against Hazrat Ali. He admitted that in his previous examination he has falsely stated that Hazrat Ali and Ashad Ali were not present. This witness frequently changed his stand and was not even cited as a witness in the charge sheet. Though he claimed that he was also injured while trying to rescue his brother, but in view of his frequent change of stand we do not find him to be reliable and trustworthy. It appears from the record that though he was cited as a witness in the charge sheet, prosecution was not interested to examine him and he himself appeared before the court with a prayer to allow him to adduce evidence. Prosecution also examined him as a witness. It appears from the record that though he was cited as a witness in the charge sheet, prosecution was not interested to examine him and he himself appeared before the court with a prayer to allow him to adduce evidence. Prosecution also examined him as a witness. It is not difficult to presume that the sole intention of P.W. 6 was to protect the accused appellants but he subsequently changed his mind and prayed for his re-examination and this time he implicated the accused appellant Ashad Ali. Consequently, we find him totally unreliable and unworthy of credence. 14. The case presents the sorry state-of-affairs in the management of the prosecution as well as investigation. Though P.W. 6 was an important witness who claimed that while trying to rescue his deceased brother from the clutches of the accused, he himself sustained injuries, but strangely enough he was not even cited as a witness in the charge-sheet and prosecution also refrained from examining him. He appeared before the court and prayed for his examination and then only prosecution decided to examine him. In his previous statement given before police he implicated the accused appellants and the other accused named in the FIR, but while adducing evidence he wanted to protect the accused appellants. When he resiled from his earlier version it was the duty of the prosecution to confront him with his earlier statement made before police and then to confirm the same through the Investigating Officer. 15. To fill up the lacuna prosecution re-examined him and in reexamination he changed his earlier stand and not only implicated the accused appellant Ashad Ali but also other accused except the appellant Hazrat Ali which renders his testimony totally unworthy of credence. 16. Another important witness Shayaban Nessa who is an eye witness to the occurrence and was cited as a prosecution witness in the charge-sheet was not examined by the prosecution on the ground that her statement under section 161 of the Cr.P.C., 1973 was not found in the case diary. This witness also appeared before the court and prayed for her examination and the learned court decided to examine her as a court witness. When this witness has been cited in the charge sheet the prosecution ought to have examined her as a prosecution witness, but she was left out for reasons best known to the prosecutor who was conducting the case. When this witness has been cited in the charge sheet the prosecution ought to have examined her as a prosecution witness, but she was left out for reasons best known to the prosecutor who was conducting the case. 17. Even the wife of the deceased Felani Khatun herself expressed doubt about the fairness of the prosecution and she filed a petition before the trial judge expressing her desire to appoint a private counsel as she was not satisfied with the way the prosecution was conducted. At her instance the court engaged a private lawyer to assist the prosecutor. Then the case took a new turn and the learned trial Judge noticed that Shayaban Nessa in pursuance to summons issued appeared before the court but she was not examined by the prosecution. The court decided to examine her as a witness in exercise of the power under section 311 of the Cr.P.C., 1973 The court was alive to the realities and rightly decided to examine the witness as a court witness for just decision of the case. 18. In the best bakery case in Zahira Habibullah H. Sheikh and Anr. v. State of Gujarat and Ors., 2004 (4) SCC 158 , the Apex Court has reminded conscientious role to be played by the criminal courts in order to ensure that the Court is alive to the realities, realizing its width of power available under section 311 of the Cr.P.C., 1973 read along with Section 165 of the Evidence Act. The relevant part of the said decision can be culled out from paragraph 43 which is as under : "43. The courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on presiding officers of court to elicit all necessary materials by playing an active role in the evidence-collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that the ultimate objective i.e. truth is arrived at. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that the ultimate objective i.e. truth is arrived at. This becomes more necessary where the court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness." 19. From the materials placed before us we are not at all satisfied with the way the investigation as well as the prosecution was conducted. The name of vital witness was left out in the charge-sheet and the statement of another vital witness whose name has been cited as a witness in the charge-sheet was not found in the case dairy. The learned Public Prosecutor should not have left out the vital witness for absence of her statement recorded under section 161 of the Cr.P.C, 1973 which eventually compelled the court to summon the witness as a court witness. 20. In the present case when the trial court was informed of the presence of Shayaban Nessa at the time of occurrence, the court summoned her as a court witness in exercise of the power under section 311 of the Cr.P.C., 1973 recourse to which may be had by courts for the purpose of discovering the relevant facts or obtaining proper proof of such facts as are necessary to arrive at a just decision of the case. Though the prosecution refrained from examining her, but for the timely intervention of the court, the actual facts would not have come to light. 21. C.W. 1 is the daughter of the deceased. According to her, while her father was working in the paddy field, she went there to offer water and betel nut to him. Though the prosecution refrained from examining her, but for the timely intervention of the court, the actual facts would not have come to light. 21. C.W. 1 is the daughter of the deceased. According to her, while her father was working in the paddy field, she went there to offer water and betel nut to him. As soon as she arrived near the place of occurrence, she saw the accused appellants along with other accused armed with weapons approaching her father. She warned her father to go away from that place. The accused Kasem prevented her from going towards her father. At that moment appellant Ashad Ali dealt a blow on the head of her father with a dao and the accused appellant Hazrat stabbed him with a dagger. The other accused Noushad and Kasem assaulted him and even they continued the assault after he fell down. It is in her evidence that P.W. 5 and P.W. 6 were present at that time and P.W. 6 Jan Mia even tried to prevent the accused but he was also assaulted. Her father died after 5/10 minutes. Defence could not elicit anything from her in cross-examination to discredit her testimony. She was married at that time and she came to the house of her parents two days prior to the occurrence. Her positive evidence is that she came on Thursday and the occurrence took place on Saturday. She alone went to the place of occurrence to offer water and betel nut to her father and she was followed by her mother which fortifies the fact that P.W. 1, her mother arrived at the scene after the occurrence. In cross-examination, she reaffirmed that that the accused appellant Hazrat was holding a sharp dagger and Ashad was holding a dao and the other accused also had weapons in their hands. She has given explanation regarding her non-examination by the Investigating Officer and according to her, since after the occurrence she left for her husband's house, her statement was not recorded which is a serious lapse on the part of the Investigating Officer. But, because of the lapse, her evidence cannot be rejected. She is found to be highly reliable and trustworthy and there is nothing to show that she had any animus against the appellants. 22. But, because of the lapse, her evidence cannot be rejected. She is found to be highly reliable and trustworthy and there is nothing to show that she had any animus against the appellants. 22. Defence argued that P.W. 5 is a child witness aged about 10/11 years at the relevant time and prone to tutoring and therefore no reliance can be placed in his evidence. We do not find the arguments in consonance with the law laid down by the Apex Court in this regard. In K. Venkateswarlu v. State of Andra Pradesh, 2012 (8) SCC 73 , "the Apex Court, while discussing the admissibility of the evidence of a child witness observed that evidence of a child witness can be relied upon if the court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is not tutored and his evidence has a ring of truth. It is safe and prudent to look for corroboration for the evidence of a child witness from the other evidence on record, because while giving evidence a child may give scope to his imagination and exaggerate his version or may develop cold feet and not tell the truth of may repeat what he has been asked to say not knowing the consequence of his deposition in the court. Careful evaluation of the evidence of a child in the background and context of other evidence on record is a must before the court to decide to rely upon it." 23. The competency of a child to testify as a witness is well recognized by law. Only requirement is that the evidence of the child witness is required to be evaluated carefully as he/she is prone to tutoring. In the present case the positive evidence of PW 5 is that he was working with his deceased uncle in the paddy field at the relevant time and he saw the accused appellants along with the other accused assaulting his uncle with various weapons which resulted in his death. He also saw his aunt P.W. 1 Musstt Felani Khatun arriving at the spot after departure of the accused. In cross-examination also he reaffirmed that he saw the accused persons gheraoing the deceased Hamid and assaulting him. He ran away out of fear which is quite natural. He also saw his aunt P.W. 1 Musstt Felani Khatun arriving at the spot after departure of the accused. In cross-examination also he reaffirmed that he saw the accused persons gheraoing the deceased Hamid and assaulting him. He ran away out of fear which is quite natural. Though he has stated the nature of weapons held by each of the accused appellants, he admitted that no such statement was made before the Investigating Officer. Probably such probing question was not put to him by the Investigating Officer and due to this reason he did not tell him about the weapons held by the accused appellants. Failure on his part to disclose the nature of the weapons held by the accused would not be a ground to reject his testimony. His evidence reveals that he is staying with his aunt nowadays but that is not a ground to come to the finding that he is a tutored witness. He stood satisfactorily in cross-examination and there is no reason to disbelieve him. 24. Though the defence argued that the conviction solely based on the evidence of P.W. 1, P.W. 5 and C.W. 1 who are closely related to the deceased cannot be sustained in the absence of corroboration from other independent source but on a critical analysis of their evidence which remained mostly unshaken in cross-examination we are of the firm view that their evidence cannot be eschewed even though they are relatives of the deceased being the wife, nephew and daughter. The medical evidence through the doctor also supports the prosecution witnesses. Though the learned trial judge relied on the testimony of P.W. 6 but for the reasons discussed above, we do not find him reliable and trustworthy. It would be unreasonable to held that the evidence given by the witnesses should be discarded on the ground that they are related and interested witnesses and the only requirement is that their evidence is to be considered with great deal of circumspection and if the court is satisfied there is no legal impediment in convicting the accused appellants basing on their testimony. 25. The plea of alibi has been taken by the accused appellants and according to them, at the time of occurrence they were in the Bechimari market. Strict proof is necessary for establishing the plea of alibi. 25. The plea of alibi has been taken by the accused appellants and according to them, at the time of occurrence they were in the Bechimari market. Strict proof is necessary for establishing the plea of alibi. When the presence of the accused at the scene of crime has been established satisfactorily by the prosecution, normally the court would be slow to believe any counter evidence to the effect that he was not present at the scene of the crime at the relevant time. The burden lies heavily on the accused to prove the plea of alibi and the learned Sessions Judge after a threadbare discussion of the evidence of the witnesses rejected the plea of alibi and after considering the evidence on record we also concur with the finding of the learned Sessions Judge. Though the witnesses claimed that they were at the Bechimari market at the relevant time but it appears that, even after committing the crime they can go to the market situated nearby or before committing the crime also they had ample time to go to the market and come back. Moreover, the plea of alibi was taken at the belated stage and it is not conclusively proved that they were not present at the place of occurrence at the crucial point of time. They have also failed to prove that it was not possible on their part to be present at the place of occurrence. Not even a whisper or suggestion was given to the witnesses that the accused persons were not present at that time and the defence plea was rejected by the learned trial Judge and having considered the evidence on record we also concur with the findings of the learned Judge. 26. On careful perusal of the evidence of P.W. 5 and C.W. 1 both of whom are found to be wholly reliable and trustworthy, we do not have any doubt that the accused appellants accompanied by the other accused, armed with weapons went to the paddy field and assaulted the deceased with the weapons which resulted in his death. Both the accused appellants actively participated in the commission of the crime. Their evidence is corroborated by P.W. 1, the first informant who is the wife of the deceased, as a post occurrence witness. The FIR was promptly lodged and there is no reason to suspect afterthought. Both the accused appellants actively participated in the commission of the crime. Their evidence is corroborated by P.W. 1, the first informant who is the wife of the deceased, as a post occurrence witness. The FIR was promptly lodged and there is no reason to suspect afterthought. On seeing her husband in a semi-conscious state she immediately accompanied by P.W. 2 Gaonburah went to the police station and lodged the FIR naming all the accused in the same, including the appellants. Her evidence is corroborated by P.W. 2 Gaonburah and he admitted having accompanied P.W. 1 to the police station to lodge the FIR. He was also present along with P.W. 3 and P.W. 4 at the time of seizure of a spade from the place of occurrence by police and at the time of inquest. 27. It was lastly argued that no motive for the assault has been attributed to the appellants for committing the crime. However, we have noticed from the evidence that a number of cases and counter cases were filed against each other by the deceased and accused which must have motivated the accused to commit the murder. 28. In the facts and circumstances of the case and on consideration of the totality of the evidence on record and from all our discussions above, we do not find any reason to set aside the judgment of conviction recorded by the learned Sessions Judge. Consequently, the judgment is affirmed. 29. The appeal stands dismissed. 30. The accused appellants are directed to surrender before the trial court forthwith to serve out the sentence. 31. Send down the LCR forthwith.