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2018 DIGILAW 1750 (GAU)

Riazuddin Ahmed v. Siddique Ali

2018-12-15

M.R.PATHAK, MIR ALFAZ ALI

body2018
JUDGMENT : MIR ALFAZ ALI, J. 1. This appeal is directed against the judgment and order dated 08.07.2014, passed by the learned Sessions Judge, Barpeta, in Sessions Case No. 46/2007, acquitting the respondent Nos. 1 to 7. 2. We have heard Mr. J. Ahmed, learned counsel for the appellant. Also heard Mr. U.C. Rabha, learned counsel for respondent Nos. 1 to 7 and Ms. S. Jahan, learned Addl. Public Prosecutor, Assam for the State respondent No. 8. We have also meticulously gone through the evidence and materials on record. 3. The case of the prosecution may be stated thus : on 11.05.1995, one Taijuddin, brother of the informant (P.W.1), was abducted from the Eddgah field, while he was playing carom board. Jamaluddin, brother of Taijuddin, when went for rescue of Taijuddin, he was also detained by the accused persons. The abductors threatened to kill them unless they pay Rs. 10,000/-. The P.W.1 lodged the FIR (Exhibit-3), on the basis of which police registered Barpeta Police Station Case No. 297/1995 under Sections 365/342/325/34 IPC and commenced investigation. On 13.05.1995, the bodies of both the victims were recovered, which were found buried in a field. The dead bodies were exhumed by police during investigation, inquest reports were prepared, post-mortem examination was conducted and on conclusion of investigation, charge-sheet was laid against 13 accused persons, out of whom, three of the charge-sheeted accused persons expired and trial commenced against 10 (ten) accused persons. 4. Learned Sessions Judge framed charges against all the remaining 10 (ten) accused persons under section 147/148/149/365/302/201 IPC, to which, they pleaded not guilty. During trial, three of the accused persons died and eventually the trial proceeded against the respondent Nos. 1 to 7. The prosecution examined 13 (thirteen) witnesses to bring home the charges against the accused/respondent Nos. 1 to 7. The autopsy doctor was examined as Court witness (CW-1). On appreciation of the evidence, learned Sessions judge acquitted all the accused/respondent Nos. 1 to 7. 5. Mr. J. Ahmed learned counsel for the appellant submits, that there was consistent evidence at least against the accused, Rahman Ali, that he abducted the victim Taijuddin and as such, the impugned judgment acquitting all the accused persons cannot be sustained. Mr. On appreciation of the evidence, learned Sessions judge acquitted all the accused/respondent Nos. 1 to 7. 5. Mr. J. Ahmed learned counsel for the appellant submits, that there was consistent evidence at least against the accused, Rahman Ali, that he abducted the victim Taijuddin and as such, the impugned judgment acquitting all the accused persons cannot be sustained. Mr. Ahmed, further submits that learned trial Court ought to have drawn a presumption against the accused Rahman to held him guilty of committing abduction and murder of the victim Jamal and Taijuddin, inasmuch as, Rahman failed to explain how the death of Joynal and Taijuddin was caused. To buttress his submission, Mr. Ahmed also placed reliance on a decision of the Apex Court in Paramsivan Vs. State, (2015) 13 SCC 300 , wherein the Apex Court observed as under: "Upon analysis of evidence, we are of the view that prosecution has succeeded in proving the facts that the accused Nos. 1 to 3 took away deceased Mani alias Parai Mani. What happened thereafter to deceased is especially within the knowledge of the appellants accused Nos. 1 to 3. it was for the Appellants-accused Nos. 1 to 3 to explain what happened to Mani alias Parai Mani after they took him away but they failed to explain the same. Mani alias Paraimani was found dead immediately thereafter. Therefore, it is clear that the accused Nos. 1 to 3 who abducted deceased Mani alias Paraimani intentionally withhold the information from the Court and, therefore, there is every justification for drawing inference that appellants-accused Nos. 1 to 3 murdered Mani alias Parai Mani. Stand of the appellants is a bare denial of prosecution case. In the absence of any explanation, the inevitable inference is that appellants are responsible for the death of deceased Mani alias Parai Mani. Thus, the guilt of the appellants-accused Nos. 1 to 3 has been proved beyond reasonable doubt. We find no merit in this appeal and the same is accordingly dismissed." 6. Mr. U.C. Rava for the respondent Nos. 1 to 7 supporting the impugned judgment submits, that the appellate Court shall not overturn the order of acquittal by re-appreciating the evidence, unless the judgment of acquittal is perverse or grossly illegal, inasmuch as, the order of acquittal strengthens the presumption of innocence in favour of the accused. Refuting the contention of Mr. U.C. Rava for the respondent Nos. 1 to 7 supporting the impugned judgment submits, that the appellate Court shall not overturn the order of acquittal by re-appreciating the evidence, unless the judgment of acquittal is perverse or grossly illegal, inasmuch as, the order of acquittal strengthens the presumption of innocence in favour of the accused. Refuting the contention of Mr. Rava, learned counsel for the appellant Mr. J. Ahmed contends that the appellate Court is obliged to re-appreciate the evidence in order to come to its own conclusion and there is no embargo on the appellate Court in re-appreciating the evidence. He also submitted that the appellate Court enjoys the same power both in appeal against conviction and acquittal. 7. On scrutiny of the evidence on record, we find that out of the thirteen witnesses examined by the prosecution, P.W.2, P.W.3, P.W.4, P.W.5, P.W.7 and P.W.10 did not have any personal knowledge and these prosecution witnesses do not appear to be of any significance. P.W.6, P.W.8 and P.W.9 claimed to be eye witnesses. P.W.1 was the informant and P.W.13 prepared the inquest report and post-mortem examination was conducted by CW-1. 8. Dr. Golap Hussain (CW-1), who conducted the post-mortem examination found the following injuries on the body of the victims: Taijuddin: An average built male body, whole body Is swollen, putrefaction starts over the body, skin Is peeled of from some parts of the body. Rigor mortis absent. One cut injury found on the right side of the neck, size - 5 x 1 x 1 cm. It has severed the long muscles of the neck with the under lying of great vessels (carotid artery and jugular vein). On examination of thorax: walls, ribs and cartilages-putrefaction starts, pleurae-healthy larynx and tracheae-healthy and pale, rt.lung-healthy pale and left lung-healthy pale. Pericar (dium) - healthy Heart - healthy and empty. Vessels - it side of the neck severed. On examination of muscles bone and joints: Injury as described, disease of deformity - absent, fracture - absent and dislocation - absent. Jamaluddin: An average built dead body, whole body is swollen, skin is peeled off from some parts of the body. Putrefaction of the body starts externally. Rigor mortis absent. 1. One cut injury present in the middle of the right side of the neck. Size - 4 x 1 x 1 cm. Jamaluddin: An average built dead body, whole body is swollen, skin is peeled off from some parts of the body. Putrefaction of the body starts externally. Rigor mortis absent. 1. One cut injury present in the middle of the right side of the neck. Size - 4 x 1 x 1 cm. It has severed the great vessels of the neck alongwith long muscles of the right side of the neck. 2. One cut injury is present on the left side of the chest 5th intercostals space 3 inch lateral to the midline, size - 1½ x ½ x ½ x 3 cm. 3. One cut injury found on the right side of the chest on the 4th intercostals space 2 inches lateral to the midline - 1½ x ½ x ½ inches. On examination of thorax: Walls, ribs and cartilages-putrefaction starts, pleurae-both pleural cavity contains dark fluid blood, larynx and tracheae - healthy and pale, Rt-lung-injury in the upper lobe of right lung present, size - 1 x ¼ x 1 cm. left lung-healthy place. Pericar (dium) - perforated, heart - injury present in the left ventricle of the heart in its anterior wall, vessels - Rt side neck vessels severed. on examination of muscles, bones and joints: Injury as described, disease or deformity - absent, fracture - absent and dislocation - absent. In the opinion of the autopsy doctor, death of both the victim was due to shock and haemorrhage as a result of injuries sustained on the neck. 9. The inquest report was prepared by the Executive Magistrate (P.W.13). As per the evidence of P.W.13, he noticed deep cut injuries on the neck of the deceased Taijuddin and also several punctured wounds on the stomach of the deceased. He also noticed cut mark on the neck and stomach of the deceased Jamaluddin. Infact, the homicidal death of the victim has not been in dispute in the instant case. 10. P.W.6 Kalimuddin who happens to be the brother of the victims testified, that on the day of occurrence, his brother Taijuddin (one of the victim) was playing carom with the accused persons, wherefrom, the accused persons took Taijuddin to the house of one Siddique Master. P.W.6 stated to have followed his brother, but after moving some distance, he came back to his house. P.W.6 stated to have followed his brother, but after moving some distance, he came back to his house. Later on, again he went to the house of Siddique Master, but did not find his brother Taijuddin there as he was taken to the house of Samsuddin. Accused Nuru Sikdar (since deceased) demanded Rs. 5,000/- from him as ransom for releasing Taijuddin and all the accused persons started assaulting Taijuddin. Seeing the incident, he came back home for collecting money and went back to the accused persons with Rs. 5,000/- along with his brother Jamaluddin (victim) and found Taijuddin lying there in an unconscious condition. The accused persons also assaulted Jamaluddin and out of fear he had fled away from there and reported the matter to others. On the next day, he again went for search of his brothers along with other villagers and found the body buried, which were exhumed later on by police. In his previous statement before police recorded under Section 161 Cr.P.C., this witness did not state all these. His statement was evidently recorded twice by police, as would appear from the testimonies of P.W.10 & P.W.11, the Investigating Officers. In his previous statement before police, P.W.6 stated that he was in his house at about 4.30 pm, when his brother was allegedly abducted from the Iddgah field. In his second statement recorded under Section 161 Cr.P.C., which was duly proved through P.W.11, this witness stated to have heard that his brother was taken away to the house of Siddique Master. Thus, what is evident from the testimony of this witness is that while deposing in Court he has given a complete different statement, wherein, for the first time, he projected himself as an eye witness and implicated all the accused persons, stating that they abducted his brother. 11. Mr. Ahmed, learned counsel for the appellant contends that all discrepancies or omissions cannot be considered as contradictions to brush aside the entire testimony of a witness, which is, otherwise found to be reliable. We are not oblivious of the proposition, that all omissions in previous statement or discrepancies in narrating the details of the occurrence, which is bound to occur in every case, due to fading of memory or lapse of time etc, cannot be considered as material or significant. We are not oblivious of the proposition, that all omissions in previous statement or discrepancies in narrating the details of the occurrence, which is bound to occur in every case, due to fading of memory or lapse of time etc, cannot be considered as material or significant. But, when the witness failed to state material facts, more particularly, the involvement of the offender in the previous statement and also says that he was not an eye witness and project himself as an eye witness in the trial for the first time and gives a vivid description of the offence implicating a number of persons, who were not even mentioned in the FIR, such omission of material facts, in our considered view cannot be ignored as minor or in-consequential. 12. P.W.8, Zakir Hussain, who is the son of P.W.6 also projected himself as an eye witness and deposed that while Taijuddin (victim) was playing carom, he was present there. At that point of time, Ainal, Din Islam, Saimuddin (not accused) and Rahman came and asked him to go to the house of Siddique Master. When Taijuddin was reluctant to go with them, he was forcibly taken to the house of Siddique Master. According to him, he also followed them and went to the house of Siddique Master and found Taijuddin there. Thereafter, he came back and reported the matter to Riaj Master (informant). According to him, Kalimuddin (P.W.6) and Jamaluddin (deceased) went there and when he wanted to know why Taijuddin was confined, the accused persons told that there was some monetary transaction with Jamaluddin. He also stated to have heard Jamaluddin screaming. He further stated that Jamaluddin (deceased) was also caught hold by the accused persons but somehow he managed to escape from there. In his previous statement, P.W.8 stated that he heard about the occurrence from Sahjahan Ali. Apparently Sahjahan Ali was neither cited as a witness nor was examined. This witness did not state in his previous statement before police recorded under Section 161 Cr.P.C., that he had seen Rahman, Din Islam and Saimuddin taking Taijuddin to the house of Siddique Master. In his previous statement, P.W.8 stated that he heard about the occurrence from Sahjahan Ali. Apparently Sahjahan Ali was neither cited as a witness nor was examined. This witness did not state in his previous statement before police recorded under Section 161 Cr.P.C., that he had seen Rahman, Din Islam and Saimuddin taking Taijuddin to the house of Siddique Master. P.W.8 neither stated before police, that he went to the house of Siddique Master and thereafter reported the matter to Riaj Master nor stated regarding transaction of money, but it is found that he had implicated some of the accused persons for the first time before the Court. The P.W.9, Kosimuddin, another witness, who also projected himself as eye witness deposed that P.W.6 and P.W.8 were not present there and thereby belied the statement made by P.W.8 and P.W.6 in court. 13. According to P.W.9, accused Rahman informed Taijuddin that the accused Siddique Master had called him to his house, but Taijuddin was reluctant to go. Rahman initially tried to persuade him and took him to the house of Siddique Master in spite of his reluctance. He further deposed that when AbdurRahman took the victim Taijuddin to the house of Siddique Master, Samad, Siad (not accused), Joynal (not accused) and Motiur followed Taijuddin. Then P.W.9 informed the family members of Taijuddin about the occurrence. According to him, in the evening he came to know that Taijuddin and Jamal were missing. Therefore, according to P.W.9, it was only Rahman who took Taijuddin (victim) to the house of Siddique Master. Admittedly P.W.9 did not follow him. However, the persons namely Samad, Siad and Joynal, who were allegedly following the accused Rahman were not examined. It was also revealed from the oral testimony of the prosecution witness that none was found in the house of Siddique Master; rather Taijuddin was found in the house of Saimuddin. There was no evidence that Rahman was also with the accused in the house of Saimuddin. 14. P.W.1 Riaj Uddin Ahmed was the first informant. According to him, P.W.6 Kalimuddin informed, that Samad, Rahman and Ainul Hoque had forcibly taken away Taijuddin to the house of Siddique Master and after some time, P.W.6 again came back and told that unless Rs. 5,000/- is paid, Taijuddin will not be released. According to him, prior to that, deceased Jamal went there with Rs. 1200/-. According to him, P.W.6 Kalimuddin informed, that Samad, Rahman and Ainul Hoque had forcibly taken away Taijuddin to the house of Siddique Master and after some time, P.W.6 again came back and told that unless Rs. 5,000/- is paid, Taijuddin will not be released. According to him, prior to that, deceased Jamal went there with Rs. 1200/-. Later on Kalimuddin informed him that both his brothers were no more and accordingly he lodged the FIR, Exhibit-3, on the next day. In the FIR, Exhibit-3, lodged by P.W.1, it was mentioned that the three accused persons, namely, Samad, Rahman and Ainul Hoque took away Taijuddin. Thus, according to P.W.1, he lodged the FIR on the basis of the information received from Kalimuddin, P.W.6. Admittedly the P.W.1 did not have personal knowledge and he lodged the FIR on the basis of the information gathered from P.W.6. Thus the oral testimony of P.W.1 would show, that P.W.6 made a different statement before P.W.1, implicating only three accused persons. Thus the contradiction in the oral testimony of P.W.6 and P.W.8 with their previous statement on material facts and the oral testimony of P.W.9, which totally belied the evidence of P.W.6 and P.W.8, crystallizes that P.W.6 and P.W.8 were not witness to the occurrence though they tried to project themselves as eye witness. Therefore, in our considered opinion no credibility can be attached to these P.W.6 and P.W.8. 15. FIR in the instant case was lodged by P.W.1, brother of the victim, after one day of the occurrence. Admittedly, the P.W.1 did not have any personal knowledge about the occurrence and he lodged the FIR after consulting P.W.6. Evidently, only three accused persons were implicated in the FIR as perpetrator of the offence. However, subsequently, lot many persons were implicated during trial contradicting the version of the FIR. Contention of the learned counsel Mr. J. Ahmed is that only because all the accused persons were not named in the FIR, prosecution evidence cannot be disbelieved. We are not oblivious of the fact, that the FIR is not an encyclopaedia in a criminal trial and it is only an information, first in point of time, setting the criminal law into motion. Had it been a case that the FIR was lodged immediately after the occurrence by somebody not connected with the offence, the matter would have been differed. Had it been a case that the FIR was lodged immediately after the occurrence by somebody not connected with the offence, the matter would have been differed. The FIR was lodged by the brother of the victim, after one day of the occurrence, that too, after having consulted the other brothers, more particularly, P.W.6, who claimed to be eye witness, and implicated lot many persons, while deposing in court. However, FIR did not mention the name of the other accused persons, who were subsequently implicated by P.W.6. Therefore, on the facts of the case, when the FIR was lodged after one day, by the brother of the deceased, after deliberation with the other witnesses, it cannot be ignored on a spacious argument, that FIR is not encyclopaedia of the prosecution case. What therefore, crystallizes is that the oral testimony of the vital witness in court also stood contradicted with the version of the FIR. When prosecution evidence on material facts is found contradictory and mutually destructive, no reliance could be placed on such evidence. Therefore, if the evidence adduced in court by the prosecution witness as indicated above, the statement made in the FIR and the previous statement of the vital witness are put in juxtaposition, it will demonstrate, that prosecution sought to put forward different story, which clearly suggest, that the prosecution witnesses either suppressed the real genesis of the occurrence or did not tell the truth before the court. When the prosecution witness failed to tell the real genesis of the occurrence or tried to suppress the truth from the court and sought to project different stories, the trial Court cannot be blamed for disbelieving such evidence. It is pertinent to mention, that learned Sessions judge having scanned the evidence on record, as indicated above, observed, that "No reliance can be placed on such inconsistent and uncorroborated testimonies of P.Ws., as indicated above; the very vital fact as to who took away Taijuddin from the Iddgaj field, cannot be reasonably ascertained." In view of the evidence, as discussed hereinbefore, the views taken by the learned trial Court for acquitting the accused, in our considered opinion, cannot be held to be unreasonable or perverse. 16. Learned counsel Mr. 16. Learned counsel Mr. Ahmed, referring to an observation of the learned trial Court in the impugned judgment, and adverse inference drawn against the prosecution, for non-examination of a cited prosecution witness, namely, Sarbesh Ali, contends, that such observation and adverse inference against prosecution was perverse. Apparently, learned trial Court is found to have taken an adverse presumption against the prosecution, that the witness Sarbesh Ali was withheld or suppressed by the prosecution. Having meticulously gone through the evidence on record we find, that the witness Sarbesh Ali died during trial. The process issued for attendance of the said witness returned with the report that the witness died and therefore, he could not be examined by the prosecution. However, learned trial Court without considering the above fact, that the prosecution, in spite of its due diligence, and best effort, could not examine Sarbesh Ali, who died during trial, made an observation that the witness was withheld. On the facts, the prosecution, in our considered view could not be blamed for not examining Sarbesh Ali in the instant case. Be that as it may, the fact remained is that Sarbesh Ali, who was a vital witness could not be examined. Even in absence of such observation also, the prosecution could not be put in a better position. Therefore, the entire findings and the judgment of the learned trial Court, cannot be held to be perverse merely because of the aforesaid adverse inference with regard to non-examination of Sarbesh Ali. A judgment or order can be said to be perverse, only when, such judgment or order is passed ignoring the material evidence or against the strength of evidence. 17. The last submission made by J. Ahmed is that a presumption should have been taken against accused Rahman, that he has killed the victim Taijuddin and Jamaluddin as his involvement in abducting the victims was established and he failed to explain as to how victim Taijuddin and Jamaluddin were killed. Section 106 of the Evidence Act provides that when a fact is especially within the knowledge of any person, burden of proving such fact lies upon such person. Section 106 of the Evidence Act states an exception to the general rule laid down in Section 101 of the Evidence act. Usually in a criminal case burden is on the prosecution to prove its case and the accused has a right to keep silence. Section 106 of the Evidence Act states an exception to the general rule laid down in Section 101 of the Evidence act. Usually in a criminal case burden is on the prosecution to prove its case and the accused has a right to keep silence. But when prosecution by discharging its burden establishes certain incriminating facts, which, if not explained, would tend to inculpate the accused, and in such circumstances the accused owe an explanation to such incriminating materials. If the accused fails to give any satisfactory explanation, there can be a possible inference against the accused to fasten him with the commission of offence. Therefore, before drawing an adverse inference to inculpate the accused by putting a reverse burden, prosecution has to first establish the incriminating facts against the accused beyond reasonable doubt, so as to make the accused liable to any explanation. In the present case, according to P.W.9, accused Rahman took the victim Taijuddin to the house of accused Siddique. As already indicated above, as per FIR, allegedly three persons abducted Taijuddin. As per evidence in Court all accused persons abducted Taijuddin. It is also in the prosecution evidence, that none was found in the house of Siddique Master. In view of above, trial Court disbelieved the prosecution story and held that prosecution has failed to prove conclusively as to who abducted Taijuddin. Admittedly, victim Jamaluddin was not abducted. Rather, he went for rescue of Taijuddin, but the accused persons allegedly tried to confine him, however, he managed to escape from there. Therefore, there was absolutely no evidence that Jamaluddin was abducted. In view of the above facts and circumstances, the prosecution evidence was grossly inadequate to establish beyond reasonable doubt that Rahman abducted the victim Taijuddin. There was also no evidence that Jamaluddin was abducted or he was with Rahman or any other accused before his death. What the above evidence crystallizes is that the prosecution evidence even fell short of invoking the last seen doctrine involving the accused Rahman. Therefore, in absence of evidence to establish beyond reasonable doubt, that the accused, more particularly, accused Rahman abducted the victim, or the victims having been seen with the accused Rahman, immediately before death, he could not be fastened with the liability to explain as to how death of the victim occurred. Therefore, on the facts, the decision of Paramsivan Vs. Therefore, in absence of evidence to establish beyond reasonable doubt, that the accused, more particularly, accused Rahman abducted the victim, or the victims having been seen with the accused Rahman, immediately before death, he could not be fastened with the liability to explain as to how death of the victim occurred. Therefore, on the facts, the decision of Paramsivan Vs. State (supra) is of no help to the prosecution. 18. In any view of the matter, having scanned the evidence of all the material witnesses, we are of considered opinion, that the view taken by the learned trial Court can by no stretch of imagination be held to be unreasonable or perverse one. Even if assuming, that there could be an alternative possible view favouring the prosecution, the view taken by the trial Court, having found to be quite reasonable, we do not find any compelling reason to overturn the findings of the learned trial court acquitting the respondent. 19. It will be profitable here to ascertain the scope of the appellate court to interfere with an order of acquittal. Dealing with the scope of appellate court to interfere with the order of acquittal, the Apex Court in Ashok Rai Vs. State of U.P. and Ors. 2014 5 SCC 713 observed that unless the appellate court finds the order of acquittal to be clearly unreasonable and is convinced that there are substantial and compelling reason to interfere with it, it should not interfere with such judgment. 20. In another judgment, Shyam Babu VS. State of U.P. reported in AIR 2012 SC 3311 , the Apex Court observed that interference in appeal against acquittal is permissible only if the decision of the trial Court is perverse. It was held that if two views are possible on same set of evidence, then the appellate Court need not substitute its own view in preference to the view of the trial Court. 21. Thus the consistent view of the Apex Court is that unless the appellate judgment is demonstratingly unreasonable and unless there is compelling reasons, the appellate Court should be slow to interfere with the judgment of acquittal, even an alternative view is possible. 21. Thus the consistent view of the Apex Court is that unless the appellate judgment is demonstratingly unreasonable and unless there is compelling reasons, the appellate Court should be slow to interfere with the judgment of acquittal, even an alternative view is possible. Having marshalled the evidence in detailed as above, we do not find any compelling reasons to interfere with the impugned judgment, inasmuch as, the views taken by and the findings arrived at by the learned trial Court in our considered view appears to be quite reasonable and does not call for a reversal. Therefore, we do not find any merit in this appeal and accordingly, the appeal is dismissed. 22. Send down the LCR along with a copy of this judgment.