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2018 DIGILAW 1234 (GAU)

RAKIBUL ISLAM @ MOKKAR ALI v. STATE OF ASSAM

2018-08-21

AJIT SINGH, MANOJIT BHUYAN

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JUDGMENT : AJIT SINGH, J. 1. The sole appellant Rakibul Islam@ Makkar Ali has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs. 1,000/-, with default stipulation. He has also been convicted under Section 201 of the Indian Penal Code and sentenced to imprisonment for 6 (six) months and fine of Rs. 500/-, with default stipulation. However, his other two co-accused - Abdul Kader and Baharul Islam have been acquitted of the charges giving them the benefit of doubt. 2. The victim of the incident was Islamuddin, aged about 24 years. 3. According to the prosecution case, Islamuddin used to live in village Thantala Govratari within the district of Dhubri. He used to run buffalo cart and trade in vegetables. On 20.02.2010, he went to Fakirganj at about 8 a.m., but did not return. His family members made a vigorous search throughout the nearby places, where he was expected to be found, but in vain. After almost a week, on 27.02.2010, his semi decomposed dead body was found at Namachala Baluchar. Brother - Shahjamal Paramanik (PW-1) of Islamuddin could identify the dead body from clothes only, as it had decomposed beyond recognition. Shahjamal Paramanik then lodged Exhibit-1 -First Information Report on that day, which was registered at Fakirganj Police Station as Case No. 23/2010 for offences under Section 302 and 201 of the Indian Penal Code. In the said First Information Report, Shahjamal Paramanik stated that Islamuddin was seen moving around Radhuram and Airkata locality with the appellant on a motor-cycle at about 9 p.m. on 20.02.2010 and the other named co-accused - Abdul Kader and Baharul Ali -threatened to cause disappearance of Islamuddin about 8 (eight) months prior to the date of incident. Hence, it was alleged that the trio committed the murder of Islamuddin. 4. Sub-Inspector Abdul Mazid (PW-19), posted in that police station, immediately rushed to the place of occurrence. He drew sketch map (Exhibit-7), got the inquest done and sent the dead body of Islamuddin for post-mortem examination. He also seized some clothes of Islamuddin and a femur bone vide Exhibit-2 seizure list in the presence of Shahjamal Paramanik, Abdul Kader Ahmed (PW-3), Goribullah Dewan (PW-5) and Mozibur Rahman. He drew sketch map (Exhibit-7), got the inquest done and sent the dead body of Islamuddin for post-mortem examination. He also seized some clothes of Islamuddin and a femur bone vide Exhibit-2 seizure list in the presence of Shahjamal Paramanik, Abdul Kader Ahmed (PW-3), Goribullah Dewan (PW-5) and Mozibur Rahman. He recorded the statements of witnesses and also got statements of Dulha Mollah (PW-7), Jahanuddin Sheikh (PW-10) and Amod Paramanik (PW-9) recorded under Section 164 of the Code of Criminal Procedure. Appellant and two co-accused named above were subsequently arrested. 5. Dr. A.Choudhury, on duty in the Department of Forensic Medicine, Gauhati Medical College, conducted post mortem examination on the dead body of Islamuddin. According to the doctor, death was due asphyxia as a result of strangulation. His post mortem examination report is Exhibit-13. After completing the investigation, Abdul Mazid submitted Exhibit-12 charge-sheet against the appellant and two co-accused persons. 6. During trial, the appellant and two co-accused persons abjured their guilt. But the trial court relying upon the evidence adduced by the prosecution, convicted and sentenced the appellant alone as aforesaid and acquitted the two co-accused persons. 7. It is argued on behalf of the appellant that there being no eye witness to the occurrence and the entire prosecution story being based on last seen theory, his conviction is bad in law. It is further argued that there is no cogent evidence to prove beyond reasonable doubt that Islamuddin was last seen with the appellant just before his dead body was recovered. There is also a considerable time gap between missing of Islamuddin and recovery of his dead body and hence the appellant cannot be held guilty for committing murder of Islamuddin. However, the Additional Public Prosecutor defended the impugned conviction and sentence as passed by the trial court. 8. The conviction of appellant is based on the evidence of Shahjamal Paramanik (brother of Islamuddin), Abubakkar (PW-2) (father of Islamuddin), Amod Paramanik (PW-9) (uncle of Islamuddin) and Shahjahan Paramanik (PW-14) (brother of Islamuddin). Shahjamal Paramanik has deposed that on 20.02.2010 at about 8/9 a.m. the appellant came and took his brother Islamuddin from their house on a motor-cycle and together they moved in Airkata and Fakirganj area. This piece of evidence came in the court for the first time from the mouth of Shahjamal Paramanik. Shahjamal Paramanik has deposed that on 20.02.2010 at about 8/9 a.m. the appellant came and took his brother Islamuddin from their house on a motor-cycle and together they moved in Airkata and Fakirganj area. This piece of evidence came in the court for the first time from the mouth of Shahjamal Paramanik. Had the appellant came to the house of Islamuddin on 20.02.2010 and had taken Islamuddin alongwith him, Shahjamal Paramanik would have definitely stated about this fact in his First Information Report which was lodged about 7(seven) days after disappearance of Islamuddin. But, he did not do so. Not only this, he also did not state before police when his statement was recorded under Section 161 of the Code of Criminal Procedure and interestingly, he told police that some people informed him that Islamuddin was roaming around with the appellant on 20.02.2010 on a motorcycle without disclosing as to who actually told him about this. Therefore, the testimony of Shahjamal Paramanik that appellant came and took Islamuddin with him is out and out false, concocted and a subsequently developed one. His evidence materially contradicts his earlier statement and is, therefore, not reliable. 9. Abu Bakkar again has a different story to tell. He did not depose that appellant came and took Islamuddin from their house, but rather testified that he saw Islamuddin going on a motorcycle with the appellant. According to his evidence, when he asked Islamuddin as to where they were going, the latter replied that they were going to the house of father-in-law of appellant. When Islamuddin did not return home, Abu bakkar went to the house of appellant on the next day and there he met appellant's uncle-Nazu Sheikh-who informed him that appellant returned home at about 11 p.m. previous night. Abu Bakkar has also testified that he asked appellant regarding whereabouts of Islamuddin and appellant replied that Islamuddin had left him. But, in his statement made before police under Section 161 of the Code of Criminal Procedure, Abu Bakkar did not state as such and on the contrary stated that none but his son- Shahjamal Paramanik- told him that Islamuddin was seen roaming with appellant on 20.02.2010. Had Abu Bakkar really seen Islamuddin roaming around with the appellant, he would have definitely stated as such before the police which he did not do. Had Abu Bakkar really seen Islamuddin roaming around with the appellant, he would have definitely stated as such before the police which he did not do. Therefore, his evidence, too, is a developed one and cannot be relied upon. 10. Again, Amod Paramanik has gone far ahead in his evidence to implicate the appellant being privy to a conspiracy to kill Islamuddin. He has deposed that one day when he was sitting in a tea stall, he heard the appellant hatching the conspiracy to kill Islamuddin with the acquitted two co-accused persons. He has also deposed that he heard Baharul saying that if he could get a chance to kill Islamuddin, he would definitely do so and asked Kader as to how, Islamuddin could be brought to him. Then he heard, the appellant saying that he would bring Islamuddin somehow to the other two accused and thereafter, one day he saw appellant and Islamuddin going together. But, Amod Paramanik admitted in his crossexamination that he did not inform about this hearing of conspiracy to either the owner of tea stall or market committee members or his family members or the police, which is an abnormal human behavior. It is very unnatural that one would hear about the conspiracy to kill his near relative and then keep mum for many days even after disappearance of that person. As such, the trial court disbelieved his evidence regarding hatching of conspiracy by appellant and the other two accused. Amod Paramanik even did not state either in his statement made before police under Section 161 of the Code of Criminal Procedure or before Magistrate under Section 164 of the Code of Criminal Procedure that he saw Islamuddin roaming with appellant. Therefore, the evidence of Amod Paramanik that he saw appellant moving with Islamuddin is a developed one and as such not reliable. 11. Shahjahan Paramanik on the other hand deposed that about 7 (seven) days before the incident, he saw appellant and Islamuddin going together and on being asked, Islamuddin replied that he was going to the house of father-in-law of appellant and since that day Islamuddin was missing. But, he stated before the police in his statement recorded under Section 161 of the Code of Criminal Procedure that he came to know from the local people of Airakata and Radhuram that Islamuddin was seen roaming with appellant at about 9 p.m. on 20.02.2010. But, he stated before the police in his statement recorded under Section 161 of the Code of Criminal Procedure that he came to know from the local people of Airakata and Radhuram that Islamuddin was seen roaming with appellant at about 9 p.m. on 20.02.2010. Therefore, the evidence of Shahjahan Paramanik that he saw appellant moving with Islamuddin is a developed one and as such not believable. 12. Islamuddin was missing since 20.02.2010 and none actually saw him moving around with appellant on that night. There is absolutely no cogent evidence to prove that Islamuddin was last seen alive with the appellant. Besides, his dead body was recovered 7(seven) days after his disappearance and there is no clue as to on which date, he actually died. Even, as per medical opinion, the time of death of Islamuddin was 6 to 15 days prior to the date of postmortem which was done on 01.03.2010. So, the time gap between the date of missing of Islamuddin and recovery of his dead body is too large to even remotely connect the appellant with the crime, more so, when there is no definite and conclusive evidence to the effect that there could be none, but the appellant, who was the perpetrator of the crime. There was no enmity between appellant and Islamdddin and appellant had no motive to commit his murder. 13. We, therefore, disagree with the finding of the trial court that appellant was the perpetrator of the crime. We hold the appellant not guilty of the charges under Section 302 and 201 of the Indian Penal Code and set aside the impugned conviction and sentence of the trial court. Appellant is acquitted and is directed to be set at liberty forthwith. 14. Accordingly, appeal is allowed.