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2018 DIGILAW 1178 (GAU)

MD. Ajibor Rahman v. State of Assam

2018-08-09

ACHINTYA MALLA BUJOR BARUA, AJIT SINGH

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JUDGMENT : A.M. BUJOR BARUA, J. 1. Appellants, namely, (i) Md. Ajibor Rahman and (2) Kadar Bhanu Bewa @ Kadarbhan Bewa have been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs. 10000/- each, or in default of payment of fine, to suffer imprisonment for another one year. 2. An ejahar dated 13.1.2006 was made by Md. Ajijur Rahman (PW-1) wherein 5 persons, including the present two appellants, were name as accused persons, inter alia, alleging that on 11.1.2006, at about 7 p.m., they called his younger brother Md. Ayub Ali to the courtyard of their house and by pinning him on the ground, cut both his hands with a dagger. Md. Ajijur Rahman also stated in the ejahar that Mustt. Joybhan Bewa (PW-3), wife of Md. Ayub Ali, had seen the incident and was also able to recognize the assailants in the moonlight. 3. In the trial court, the prosecution relied upon the evidence of Mustt. Joybhan Bewa, Allauddin Sheikh (PW-4) and Mujibur Rahman (PW-7) to prove its case. 4. The injuries found on the deceased Md. Ayub Ali by Dr.Prasanta Kumar Das (PW-9) in his post mortem examination report Exhibit 4 were as under:- (i) cut injury over right forearm 6"x3"x muscle deep over right wrist (ii) cut (incised injury) over right forearm 4" above the wrist exterior surface 6 cm x 2 cm x 2 cm (iii) cut injury over right forearm 9" above the wrist palmen aspect 5 cm x 2 cm x 2 cm (iv) cut injury over left forearm 10 cm x 5 cm x 4 cm (v) cut injury over left forearm in the middle, two in nos 2 cm x .5 cm x .5 cm and 2 cm x .5 cm x .5 cm (vii) fracture both radius and ulna over right wrist joint (viii) fracture lower end of the radius and ulna in the left side of lower part. 5. The trial court disbelieved the evidence of Allauddin Sheikh on the ground that his evidence in the court was substantially different from his earlier police case diary statement recorded under section 161 of the Code of Criminal Procedure. The trial court also found that even Mujibur Rahman had improved his evidence with regard to the oral dying declaration of Md.Ayub Ali against Ajibor Rahman and Aamejuddin. The trial court also found that even Mujibur Rahman had improved his evidence with regard to the oral dying declaration of Md.Ayub Ali against Ajibor Rahman and Aamejuddin. The trial court further noticed certain variations in the evidence of Mujibur Rahman pertaining to weapons used. The trial court, therefore, essentially, relying upon the evidence of eye witness Mustt. Joybhan Bewa held the appellants guilty for an offence under Section 302 of the Indian Penal Code and sentenced them as aforesaid. 6. Learned Senior Counsel appearing for the appellants has argued that the trial court ought to have disbelieved the evidence of Mustt. Joybhan Bewa also and acquitted the appellants. On the other hand, learned Additional Public Prosecutor, has submitted that the trial court has committed no illegality in convicting the appellants. The learned Additional Public Prosecutor has also argued that the trial court instead of disbelieving Allauddin Sheikh and Mujibur Rahman ought to have believed their evidence. 7. Allauddin Sheikh has testified in the court that he saw Ajibor Rahman, Giasuddin and Kadarbhan Bewa assaulting Md. Ayub Ali with a dagger, due to which, his both hands almost got severed. But this witness, in his earlier police case diary statement, did not say that he actually saw the incident. During investigation, he merely stated as to what had happened. This witness, therefore, does not appear to be an eye witness and having regard to substantial variance in his evidence from what he stated in his earlier police case diary statement, during investigation, makes his evidence wholly unreliable. Likewise, Mujibur Rahman has deposed that when he reached the place of incident, he found Md. Ayub Ali was still in a position to speak and on his asking, Md. Ayub Ali disclosed that Ajibor Rahman had hacked him with a dao weighing about 1 kg and at that time Aamejuddin (co-accused) had held him tightly. But, this witness also in his earlier police case diary statement did not say that Md.Ayub Ali was in a position to speak or any such oral dying declaration was made by him. Not only this, Md. Ajijur Rahman in his evidence has deposed that when he reached the place of occurrence, he found Md. Ayub Ali was lying unconscious and was unable to speak. This evidence of Md. Ajijur Rahman also belies the evidence of Mujibur Rahman. Not only this, Md. Ajijur Rahman in his evidence has deposed that when he reached the place of occurrence, he found Md. Ayub Ali was lying unconscious and was unable to speak. This evidence of Md. Ajijur Rahman also belies the evidence of Mujibur Rahman. The trial court has, therefore, rightly discarded the evidence of Mujibur Rahman regarding oral dying declaration made to him by Md. Ayub Ali. 8. As mentioned above, Mustt. Joybhan Bewa is a eye witness to the incident. She is also wife of Md.Ayub Ali. According to her evidence, on hearing the commotion coming from the house of Ajibor Rahman, she rushed towards his house. And on reaching the house of Ajibor Rahman, she saw him giving dao blows to Md. Ayub Ali, who was lying on the ground. She has also testified that the dao was in the hand of Ajibor Rahman, whereas Kedarbhan Bewa had pressed Md. Ayub Ali on the ground. This witness, however, in her earlier police case diary statement stated that on reaching the house of Ajibor Rahman, she could hear Md. Ayub Ali asking Ajibor Rahman why he had done so to him and when she rushed inside the courtyard, she saw Ajibor Raham and Giasuddin giving blows to Md. Ayub Ali with a dagger. According to the evidence of Mustt. Joybhan Bewa, she also saw Kadarbhan Bewa and others at the place of occurrence. The evidence of this witness in the court is consistent with her earlier police case diary statement to the extent that Ajibor Rahman gave dagger blows to Md. Ayub Ali. It is, thus, proved beyond doubt that Ajibor Rahman repeatedly caused multiple injuries to Md. Ayub Ali with a dagger, due to which, his both the hands were almost brutally chopped off and ultimately, he died. But, as regards Kadarbhan Bewa, the evidence of Mustt. Joybhan Bewa becomes doubtful that she had pressed Md. Ayub Ali on the ground when Ajibor Rahman was inflicting blows to him with a dagger. This we are saying because Mustt. Joybhan Bewa did not make any such allegation against Kadarbhan Bewa in her earlier police case diary statement. 9. For these reasons, we set aside the conviction and sentence of Kadarbhan Bewa and acquit her of the charge. She is in jail and hence be released forthwith. This we are saying because Mustt. Joybhan Bewa did not make any such allegation against Kadarbhan Bewa in her earlier police case diary statement. 9. For these reasons, we set aside the conviction and sentence of Kadarbhan Bewa and acquit her of the charge. She is in jail and hence be released forthwith. As regards Ajibor Rahman, we are convinced that he in a well planned manner called Md. Ayub Ali to his courtyard, where he brutally almost chopped both his hands by causing multiple cut injuries with a heavy dagger. The injuries caused to Md. Ayub Ali were so brutal that he immediately became unconscious and died soon thereafter. There is, thus, no doubt that Ajibor Rahman committed the offence punishable under Section 302 of the Indian Penal Code. We, accordingly, affirm his conviction and sentence as passed by the trial court. 10. The appeal is partly allowed.