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2019 DIGILAW 1153 (GAU)

Md Jalal Uddin v. State of Assam

2019-10-24

MANISH CHOUDHURY, MIR ALFAZ ALI

body2019
JUDGMENT : MIR ALFAZ ALI, J. 1. Heard Mr. S.K. Jain, learned counsel for the appellant and Ms. S. Jahan, learned Additional Public Prosecutor appearing for the State. 2. This appeal is directed against the judgment and order passed by the learned Sessions Judge, Barpeta in Sessions Case No. 98/2008, whereby, the learned Sessions Judge convicted the appellant under Section 302 I.P.C. and sentenced him to undergo simple imprisonment for life and fine of Rs. 5,000/- with default stipulation. 3. The prosecution case in a nutshell is that on 23.02.1999, Nasir Uddin, the father of the informant Hasan Ali was irrigating the cultivable land by pumping machine, which was installed in the field. Accused Jalal Uddin stopped the machine forcibly, whereupon altercation took place between Jalal Uddin and Jakir Hussain (P.W.2), brother of the informant. At that point of time, accused Jamal Uddin came and caught hold of Jakir Hussain. When, Nasir Uddin (deceased) asked them not to quarrel, Jalal Uddin hit Nasir Uddin on his head by a bamboo stick, causing injury to Nasir Uddin. Though Nasir Uddin was initially shifted to hospital, he succumbed to the injury. On the next day, the FIR (Ext.-1) was lodged by the P.W.1, on the basis of which police registered the Barpeta P.S. Case No. 128/1999 under Section 325/302/34 I.P.C. and on conclusion of the investigation laid charge sheet against Jalal Uddin and Jamal Uddin under Section 302 I.P.C. read with Section 34 of the I.P.C. 4. In course of trial, charge was framed against both the accused persons, which was abjured by them. In order to bring home the charge, the prosecution examined 12 witnesses. On conclusion of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. wherein the accused persons took the plea of innocence. On appreciation of evidence the learned Sessions Judge convicted the present appellant under Section 302 I.P.C. and awarded sentence as indicated above. However, the co-accused Jamal Uddin was acquitted. 5. We have considered the submissions made by the learned counsel for the appellant and the learned Additional Public Prosecutor. 6. P.W.10, Dr. Panchanan Uzir who conducted the Post-Mortem Examination on the body of the deceased found the following injuries : "I - EXTRANAL APPEARANCE 1. Wounds, Position, Character: Fracture of the frontal bone 2.5 cm. to the right of the midline. A subdural haematoma present in the frontal lobe of brain. 2. 6. P.W.10, Dr. Panchanan Uzir who conducted the Post-Mortem Examination on the body of the deceased found the following injuries : "I - EXTRANAL APPEARANCE 1. Wounds, Position, Character: Fracture of the frontal bone 2.5 cm. to the right of the midline. A subdural haematoma present in the frontal lobe of brain. 2. Bruise Position size and nature: NIL. 3. Mark of ligature o neck dissection, etc.: NIL. II - CRANUM AND SPINAL CANAL 1. Scalp, skull, vertebrae : Lacerated injury with fracture of the frontal bone present in the vault of the skull. Vertebrae - Intact. 2. Membrane : Intact. 3. Brain and spinal cord : Subdural haemotoma present in the frontal lobe of brain." 7. In the opinion of the doctor, the death of the victim was caused due to shock and haemorrhage following the head injury, and such finding of the doctor has not been disputed. 8. P.W.1, Hasan Ali, the informant, stated, that on 23.02.1999 he was proceeding to Guwahati but on the way, he came to know from one Hilal Uddin that, no vehicle was plying on that day and therefore, he returned home. While coming back, he noticed that one pump machine was installed in the field and accused Jamal Uddin caught hold of his elder brother Jakir Hussain and his father was also standing there. Jakir and Jamal started scuffling and accused Jamal by uttering some slang language asked Jalal to catch Nasir, whereupon Jalal came with a lathi (stick) and assaulted Nasir causing injuries on his head. After inflicting the injury, the accused left the place. They brought the injured home and then shifted to hospital. However, the doctor declared the victim dead. During cross-examination, it has been elicited that the accused and the informant are cousins and belong to the same family. The witness however denied the defence suggestion, that while preventing Jamal and Jakir from scuffling, Nasir fell down on the machine by slipping and sustained injuries. 9. P.W.2, Jakir Hussain brother of P.W.1 deposed more or less in the same tune, that when Jalal stopped the pump machine, an altercation started between them and his father Nasir Uddin again attempted to start the machine. Jamal asked Jalal to catch Jakir and scuffle ensued between him and Jamal. 9. P.W.2, Jakir Hussain brother of P.W.1 deposed more or less in the same tune, that when Jalal stopped the pump machine, an altercation started between them and his father Nasir Uddin again attempted to start the machine. Jamal asked Jalal to catch Jakir and scuffle ensued between him and Jamal. In the meantime, accused Jalal hit on the head of his father Nasir by means of a bamboo stick which was in his hand. This witness stated that one Harmuj (P.W.4) and Abdul Haque (P.W.3) were also present at the place of occurrence. It was elicited, during cross-examination of both P.W.1 and P.W.2 that they did not state before police regarding using filthy language and directing Jalal to catch hold of Nasir Uddin. 10. P.W.3, Md. Abdul Haque stated that he had seen the quarrel between the accused persons on the one side and Jakir on the other side regarding irrigation of their land and in course of such quarrel, they also started scuffling between them. At that point of time, Nasir (deceased) came there and asked both of them not to quarrel. However, in the meantime, Jalal assaulted Nasir by means of a lathi. During cross-examination, this witness stated that he had seen Nasir falling down on the ground near the installation of the machine, but he pleaded ignorance at about the reason of his falling. He further stated that he did not see how and why Nasir fell down. 11. P.W.4, Md. Harmuj Ali who was also present at the place of occurrence, was declared hostile by the prosecution. He stated in his evidence that he had seen scuffle between Jamal and Jakir and he tried to disperse them. In the meantime, he also noticed that someone was pouring water on the head of Nasir who was lying in the place of occurrence because of sustaining injury on his head. 12. P.W.8, Taser Uddin who is related to both the parties, stated that having seen the quarrel taking place between the accused persons and Jakir regarding the use of the shallow machine, he came forward to intervene. In the meantime, Nasir also came there. He further stated that he along with Nasir, tried to disperse them and in the midst of push and pull between Jakir and Jamal, Nasir suddenly slipped on the slippery ground and fell on the shallow machine and sustained injury on his head. In the meantime, Nasir also came there. He further stated that he along with Nasir, tried to disperse them and in the midst of push and pull between Jakir and Jamal, Nasir suddenly slipped on the slippery ground and fell on the shallow machine and sustained injury on his head. Then they all took him to Barpeta Civil Hospital where he succumbed to his injury later. During cross-examination, this witness stated that the informant Hasan Ali (P.W.1) was not present in the house on the day of occurrence, as he went to Guwahati. He further stated that Hasan returned from Guwahati on the next day and upon hearing the matter from others, he lodged the FIR. He also stated, that before lodging the FIR, Hasan (P.W.1) did not consult other family members. 13. On our careful assessment of the evidence of all the vital witnesses, P.W.1, P.W.2, P.W.3 and P.W.8, we find that P.W.8 categorically stated that Nasir sustained the injury by falling on the machine accidentally and the appellant had no role in the injury sustained by Nasir. The testimony of this witness remained as it is, in as much as, the P.W.8 was never declared hostile nor his testimony was disowned by the prosecution. What we notice is that the oral testimony of the P.W.8 also finds support from the testimony of P.W.3, who admitted on cross examination that he had seen Nasir falling near the pump machine. 14. P.W.4 who was also present at the place of occurrence apparently did not support the version of P.W.1 and P.W.2 both being brothers. True it is, that P.W.4 was declared hostile by the prosecution. It is the settled proposition, that testimony of a hostile witness does not get washed off the record. The testimony of hostile witness, to the extent reliable can be acted upon. Apparently, the presence of the P.W.4 at the place of occurrence was admitted and testimony of the P.W.4 also supported the testimony of P.W.8. The medical evidence of P.W.10 and the nature of injury also, in our considered view, lent support to the evidence of P.W.8. 15. What, therefore, transpires from the evidence adduced by the prosecution witness is that the prosecution had put forward two set of evidence, one set, more particularly through the P.W.1 & P.W.2 implicating the appellant in commission of the offence and the other set exonerating the appellant. 15. What, therefore, transpires from the evidence adduced by the prosecution witness is that the prosecution had put forward two set of evidence, one set, more particularly through the P.W.1 & P.W.2 implicating the appellant in commission of the offence and the other set exonerating the appellant. When the prosecution comes up with two sets of self-contradictory or mutually destructive evidence, the court has to reject both or at best can accept the one favouring the accused. Because it is the established principle of criminal justice that in a criminal case when there are two views, the Court has to accept the one which favours the accused. 16. In view of the above evidence, we are of the considered opinion that prosecution evidence is grossly inadequate to bring home the charge against the appellant and therefore, in our considered view, the appellant is at least entitled to the benefit of doubt and as such, we are unable to sustain the impugned judgment of the learned trial Court, whereby the appellant was convicted and sentenced under Section 302, I.P.C. Accordingly, we set aside the conviction and the sentence of the appellant and allow the appeal. The appellant be set at liberty forthwith if not required in any other case. 17. Send down the LCR along with a copy of this judgment.