Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 1216 (GAU)

MD, Ainuddin Munshi v. State of Assam

2018-08-16

MIR ALFAZ ALI

body2018
JUDGMENT : MIR ALFAZ ALI, J. 1. Heard Mr. HRA Choudhury, learned senior counsel for the petitioner and learned Addl. PP, Assam. 2. Both these revisions are directed against the judgment and order dated 20.11.2008, passed by the learned Sessions Judge, Darrang in Sessions Case No.17(D-2)/2008. By the said judgment, learned Sessions Judge dismissing the appeal filed by the petitioners, upheld the judgment and order dated 17.05.2008, passed by the learned Asstt. Sessions Judge, Darrnang, Mangaldoi in GR Case No.127/1998, whereby the petitioners were convicted under Section 307 IPC read with Section 34 IPC, and sentenced to imprisonment for 2 years and fine of Rs. 2,000/- each, with default stipulation. 3. As per the prosecution case, on 29.03.1997, when Ohed Ali and Sattar Ali were proceeding to Tangni market, the petitioners along with one Samed Ali (since deceased) attacked them and mounted assault on both of them with the intention to kill them. Though the villagers confined all the five accused persons named in the FIR, namely, Ainuddin Munshi, Samsul Hoque, Samed Ali (deceased), Besiruddin and Amaluddin, other co-accused, named in the FIR, managed to release them. An FIR was lodged by PW-1, Md. Ali Hussain, on the basis of which police registered a case and submitted charge-sheet against six persons including the petitioners. However, rest of the persons named in the FIR were exonerated by police and eventually the six accused persons including the present petitioners stood trial. 4. During the course of trial, charges were framed against all the six accused persons under Sections 307/34 IPC, to which they pleaded not guilty. The accused Samed Ali died during trial. 5. Prosecution examined 10 (ten) witnesses to prove the charges. On conclusion of the prosecution evidence, the accused persons were examined under Section 313 Cr.P.C. In course of examination under Section 313 Cr.P.C., a plea was taken by the accused persons that PW-4 & 5 entered into the house of the DW-1 and tried to outrage her modesty and the said DW-1 and the other women, who assembled there assaulted PW-4 & PW-5. In support of defence, the accused persons also examined two witnesses being DW-1 & DW-2. 6. On appreciation of evidence, learned trial Court convicted the present petitioners and awarded sentence as indicated above, however, one of the accused was acquitted. 7. In support of defence, the accused persons also examined two witnesses being DW-1 & DW-2. 6. On appreciation of evidence, learned trial Court convicted the present petitioners and awarded sentence as indicated above, however, one of the accused was acquitted. 7. From the impugned judgment and the submission of the learned counsel, it appears that except Pw-4 & PW-5, being the injured, no other eye witnesses was examined and the prosecution case primarily hinges on the oral testimony of thesse two witnesses. 8. Pw-4 deposed that when he along with PW-5 were proceeding to Tangni market, at about 8.30 am in the morning, one Samsul Ali restrained him and Ainuddin hit on his forehead with a dao. As he raised hue and cry, Amoruddin as well as Bahajuddin also dealt him dao blow causing injuries. It is reveled from the cross-examination of PW-4 and the testimony of the I/O that he did not state before police regarding Samsul Ali restraining him, rather, he stated before police that Moina (DW-1) and Jahanara (DW-2) restrained him on the road. 9. Pw-5, another injured, stated that he accompanied the PW-4 and both of them were proceeding to Tangni market. According to him, Samsul assaulted PW-4 with a dao and one Samad who was hiding under culvert came out and assaulted the informant with a dao. He further stated that Samsul also assaulted him. Though PW-5 stated that accused Samad also assaulted the informant, the informant, who was examined as PW-1 deposed that he came to know about the occurrence later on, and he did not state anything about any accused assaulting him. 10. Though PW-4 and PW-5 were admittedly together, at the time of occurrence and stated to have been attached by the petitioners, the testimony of both these two witnesses appears to be contradictory and mutually destructive, inasmuch as, according to PW-4, Amoruddin and Bahajuddin (not accused) assaulted him. Whereas, according to PW-5, it was Samsul who assaulted both him and PW-4. Apparently, PW-1 belied the evidence of PW-4 regarding Samsul assaulting him. PW-4 also did not state that Samsul assaulted him with dao. Therefore, the testimony of these two witnesses is hardly worthy of trust. Whereas, according to PW-5, it was Samsul who assaulted both him and PW-4. Apparently, PW-1 belied the evidence of PW-4 regarding Samsul assaulting him. PW-4 also did not state that Samsul assaulted him with dao. Therefore, the testimony of these two witnesses is hardly worthy of trust. Once the testimony of these two witnesses being injured is disbelieved, the prosecution is left with no other legal evidence to establish the involvement of the present petitioners, except the medical evidence, demonstrating that the PW-4 sustained injuries. 11. Pw-7, the son of Pw-4 deposed that he arrived the place of occurrence before any other person arrived there and according to him, only two women being the DW-1 and DW-2 were present at the place of occurrence. Therefore, according to PW-7, though he arrived the place of occurrence immediately after the occurrence, he did not see anyone except the two women (i.e., DW-1 & DW-2) at the place of occurrence. Surprisingly, he lodged a GD entry with the police, which was proved as Exhibit-2, wherein, it was mentioned that Ainuddin, Hafijuddin and Alimuddin (not accused) and Sayed Ali (not accused), assaulted his father while he was going to Tangni market. 12. Pw-3 stated in his evidence that he had seen 10-12 women surrounding the injured, PW-4 & PW-5 and no male member was present at that time. 13. Dw-1 and DW-2 stated that while they were alone in the house, PW-4 & PW-5 entered the house, closed the door from inside and attempted to sexually assault them and they assaulted PW-4 in their self defence and raised hue and cry. 14. The evidence of the prosecution witnesses PW-3 and PW-7, that there was no male member at the place of occurrence and that the PW-4 and PW-5 were gharrowed by all the women, goes to support the defence version as deposed by DW-1 & DW-2. 15. It is settled position that standard of proof on the part of the accused and that of the prosecution in a criminal case is different. Though the prosecution is required to prove the guilt of the accused by evidence beyond reasonable doubt, the standard of proof so as to prove a defence plea on the part of the accused is preponderance of probability. Law does not require the accused to establish his defence by evidence beyond doubt. Though the prosecution is required to prove the guilt of the accused by evidence beyond reasonable doubt, the standard of proof so as to prove a defence plea on the part of the accused is preponderance of probability. Law does not require the accused to establish his defence by evidence beyond doubt. It is also not necessary for the accused to adduce evidence, the accused may discharge his burden even on the basis of materials already bought on record by the prosecution. If the accused can probabilise his defence, either by adducing some evidence or from the materials already on record, in the touch stone of probability, the burden of the accused stands discharged. 16. In the instant case, the defence plea was that PW-4 and PW-5, while trying to sexually assault the DW-1 & DW-2, they resisted and assaulted PW-4 & PW-5 in their self defence, and such plea of defence also finds support from oral testimony of PW-3 and PW-7. When evidently, the oral testimony of PW-4 and Pw-5 being the injured was not reliable for being contradictory and mutually destructive and the defence story as deposed by DW-1 and DW-2 was supported by the prosecution evidence as deposed by PW-3 and PW-7, such defence evidence could not be brushed aside only on the ground that no FIR was lodged by the defence witness. It must be borne in mind that the credibility of the defence witness is at par with that of the prosecution witness and as such, a defence witness is entitled to equal treatment as that of prosecution witness. Though defence witness are often found untruthful, but that cannot be a ground to reject a defence witness without scrutinizing the same on the basis of the facts and circumstances of a particular case. In the present case as indicated above, the evidence of the DW-1 and DW-2 have been supported by the prosecution witness, that there was no male person at the place of occurrence. Thus the oral testimony of the DW-1 and DW-2 supported by the testimony of the PW-3 and PW-7 and the contradictory and mutually destructive evidence of PW-4 and PW-5, clearly demonstrated that the prosecution either concealed or suppressed the true genesis of the occurrence or deposed falsely before the Court. 17. Thus the oral testimony of the DW-1 and DW-2 supported by the testimony of the PW-3 and PW-7 and the contradictory and mutually destructive evidence of PW-4 and PW-5, clearly demonstrated that the prosecution either concealed or suppressed the true genesis of the occurrence or deposed falsely before the Court. 17. Thus falsity or unreliability in the oral testimony of the PW-4 and PW-5, upon which the entire prosecution case was banking and the probability of the defence version which also finds support from the prosecution witness, rendered that the entire prosecution case totally unworthy of credence. What the totality of facts and circumstances crystallizes is that, the prosecution evidence was grossly inadequate to bring home the charges against the accused petitioners, and as such, the conviction and sentence of the petitioners cannot be sustained. Accordingly, the impugned judgment of conviction and sentence is set-aside and both the revisions are allowed. 18. Send back the LCRs.