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2019 DIGILAW 286 (GAU)

Akbar Hussain Laskar v. State of Assam

2019-03-05

RUMI KUMARI PHUKAN

body2019
JUDGMENT : RUMI KUMARI PHUKAN, J. 1. Heard Mr. A.Y. Choudhury, learned counsel appearing for and on behalf of the appellants as well as Mr. B.J. Dutta, learned Addl. P.P., Assam representing the State respondent. 2. This appeal is preferred against the judgment and order dated 23.03.2010, passed by the learned Addl. Sessions Judge, Cachar, Silchar in Sessions Case No.20/2008, whereby the learned Addl. Sessions Judge convicted and sentenced the accused/appellants under Section 304 (Part II) of the IPC, to undergo Rigorous Imprisonment (R/I) for a period of three years along with fine of Rs. 1,000/- each, in default of fine, further R/I for a period of another one month. 3. The case of the prosecution in nutshell is that, one Musstt. Paturun Nessa lodged in FIR on 30.04.2006 before the in-charge of the Banskandi Police Out Post alleging inter alia that on 29.04.2006, at about 5 P.M., one person namely accused Bapan Laskar, son of Alauddin came to her house and called their son Abul Hussain (the deceased) and informed him that they have to go for some urgent welding works. At that time, some other accused namely Akbar Hussain, Babul Laskar, Dilu Mia and Mona Mia were waiting outside their house on road. Her son accordingly went along with them but he did not return. On the next day, when the informant asked accused Bapan about her son, then he reported that he has gone to his aunt's house. Although she awaited for the whole day but in the evening of 30.04.2006, at about 5 P.M., the dead body of her son was recovered while some fishermen were fishing in the Anua river, in front of the house of Bapan. 4. On the basis of the FIR filed, the Lakhipur P.S. Case No.106/2006 was registered and on due completion of the investigation charge sheet was submitted against accused Bapan Uddin Laskar, Akbar Hussain Laskar, Babul Uddin Laskar, Sanjit Namasudra and Sanuhor Hussain Laskar @ Bapan Laskar under Sections 147/302/201 IPC. All the accused persons faced the trial and denied the charges that were framed by the Court under Sections 302/149 IPC and claimed to be tried. 5. During the trial, the prosecution examined nine witnesses in support of their case and the defence examined none. The plea of the defence was of total denial. All the accused persons faced the trial and denied the charges that were framed by the Court under Sections 302/149 IPC and claimed to be tried. 5. During the trial, the prosecution examined nine witnesses in support of their case and the defence examined none. The plea of the defence was of total denial. On the conclusion of the trial, the learned trial Court on the basis of the evidence on record came to the conclusion that even on the basis of circumstantial evidence, the complicity of the accused persons made out and accordingly convicted all the accused persons under Section 304 Part-II IPC. The Court was of the view that there was no intention or motive to commit the murder but as the accused persons took away the informant's son from his house and subsequently his dead body was recovered with injuries on his person, so the accused were held for the offence of culpable homicide not amounting to murder. 6. Being dissatisfied and aggrieved by the aforesaid decision, the present appeal has been preferred. 7. Mr. A.Y. Choudhury, the learned counsel for the appellants has vehemently contended that although the conviction can be rests upon the circumstantial evidence but in the present case there is no chain of facts to establish the hypothesis of the guilt of accused/appellants. It has been pointed that it was one of the accused Bapan Laskar who took the son of the informant from her house and the present appellants were outside the house, will not enough to suggest their complicity and that apart, there was no incriminating material against the present appellants. The evidence recorded by the learned trial Court has also been referred to, which also according to the learned counsel for the appellants, is not at all suggestive of the complicity of the present two appellants namely Akbar Hussain Laskar and Babul Uddin Laskar, save and except their presence outside the house of the informant and at some time they also accompanied accused Bapan and deceased Abul. 8. The evidence of CW.1 and CW.2 is pointed out to show that their evidence reflected the real picture of the occurrence which has shown that death of deceased because of drowning in the river and in such eventuality, the learned trial Court has erroneously came to the conclusion of guilt of the present appellants, it contends. 9. 8. The evidence of CW.1 and CW.2 is pointed out to show that their evidence reflected the real picture of the occurrence which has shown that death of deceased because of drowning in the river and in such eventuality, the learned trial Court has erroneously came to the conclusion of guilt of the present appellants, it contends. 9. I have also heard the submission of learned counsel of the State respondent Mr. B.J. Dutta, who has submitted that the totality of the evidence will obviously suggests the presence of the present appellants with accused Bapan Laskar, who took away the son of the informant and they were all going together on the road on the fateful day and also found returning from the river side when Abul was missing. 10. Due consideration has been given to the submission of learned counsel for both the parties and perused the evidence on record. 11. Apparently it is a case of murder, the prosecution relies on three circumstances i.e. (1) The deceased was called by the accused Bapan Laskar from his house, (2) He accompanied the accused persons and the son of the informant did not return and (3) On the next day his dead body was recovered. Save and except the aforesaid circumstances, there is no other direct piece of evidence on record. 12. Pw.1, Musstt. Patarun Nessa (informant) and her daughter Musstt. Rina Begum (PW.3), both of them has asserted the same fact that it was the accused Bapan Laskar who called Abul from the house and accordingly he went away with the accused persons but did not return. Upon asking, accused Bapan Laskar told that Abul went to the house of his maternal aunt but on the next day, the dead body of Abul was found. 13. Pw.3, Saaj Uddin Laskar and PW.7, Islam Uddin are the witness to the inquest report, Exhibit.1. 14. Pw.4, Butul Laskar and PW.6, Lutfur Rahman have stated about the fact that on the fateful day i.e. on 29.04.2006, at about 5 P.M., while they were returning from Banskandi Bazar, they ofund the accused persons along with Abul Hussain, who were going on the road. 14. Pw.4, Butul Laskar and PW.6, Lutfur Rahman have stated about the fact that on the fateful day i.e. on 29.04.2006, at about 5 P.M., while they were returning from Banskandi Bazar, they ofund the accused persons along with Abul Hussain, who were going on the road. PW.4 further stated that on the same day at about 9 P.M., while he was waiting for return of his son Nizamuddin, he found the accused Bapan, Akbar and Babul were returning from the river side with their wet clothes but Abul was not with them and on the next day, they heard that Abul has died. The PW.4 in his cross-examination stated that me came to know that the boat was over-turned in the middle of the river Anua. 15. The evidence of PW.5, Faruk Ahmed Laskar is also similar who stated that on the day of occurrence while he was returning home with his auto and reached in front of Banskandi M.V. School, he found the accused Bapan returning from the western side and he did not reply properly to his query made by him. He wrote the FIR, as stated by the informant vide Exhibit 2. 16. On the recovery of the dead body on 30.04.2006, the same was sent for P.M. examination and accordingly Dr. B.C. Roy Medhi (PW.8) conducted the P.M. examination on the dead body of Abul Hussain and he found some swelling and contusion over the forearm, underneath the muscle and fracture at the wrist joint and he has opined that the cause of death was due to asphyxia, as a result of drowning. 17. Pw.9, SI Amulya Deka was the I.O. who stated all about the investigation he made regarding receipt of the FIR, making of inquest report and sending the dead body of P.M. examination to Silchar Medical College & Hospital (SMCH). 18. The statement of the PW.4 & 6 is contradicted by the I.O. that those two witnesses did not state before him that they found the accused persons along with the deceased on the day of occurrence at the evening. 18. The statement of the PW.4 & 6 is contradicted by the I.O. that those two witnesses did not state before him that they found the accused persons along with the deceased on the day of occurrence at the evening. As the I.O. has admitted about the examination of two witnesses namely Sukkur Das and Apurba Das, under Section 164 CrPC and they were not cited as witnesses in the charge sheet, the Court examined both the said witnesses Apurba Das as Court Witness (CW) No.1 and Sukkur Das as Court Witness (CW) No.2. Both the witnesses have given similar statement that on the night of 29.04.2006, at about 10 P.M., while they were in their temporary shed on the bank of Banskandi Anua, at that time some boys came and demanded them to carrying in the boat to the other side of the Anua. The boys were 6/7 in numbers. Although they initially refused but on their demand, the CW.1 taken those boys in his boat. Amidst the river, the boys started sparkling to each other and did not pay heed to the protest and when the boat reached in the middle of Anua, they toppled the boat. Hearing hue and cry, the CW.2 rescued the CW.1 and could not say about the other persons. On the next day, a body was found floating which was recovered. CW.2 has identified the accused persons who went to them. 19. The CW.3 is the Bench Assistant of the Court of JMFC, Cachar at Silchar who recorded the statement of these two witnesses and he has proved their statement given under Section 164 CrPC, vide Exhibit 6 & 7, recorded by the Magistrate. 20. On careful scrutiny of the materials on record and the impugned judgment, it is found that the learned trial Court has relied upon certain circumstances as mentioned in para-15 of the impugned judgment, which is quoted below for ready reference: "15. 20. On careful scrutiny of the materials on record and the impugned judgment, it is found that the learned trial Court has relied upon certain circumstances as mentioned in para-15 of the impugned judgment, which is quoted below for ready reference: "15. So on close scrutiny of the materials on record it appears that the following circumstances apparently comes: (i) that, the deceased accompanied accused Bapan, s/o. Alauddin, Babul and Akbor and there is no explanation on the part of the accused when the deceased departed them; (ii) that, accused Bapan, s/o. Alauddin also gave false report that the deceased went to his aunt's house; (iii) that, PW-4 found accused Bapan, s/o. Alauddin, Akbor and Babul accompanied Abul Hussain (deceased) in going towards Anua; (iv) that, the boat was toppled and sank in the middle of the Anua and on the following day the dead body of the deceased was recovered; (v) that, CW-2 identified the accused persons on the dock; (vi) Doctor PW-8 found an ante-mortem injury on the body of the deceased". 21. All these go to show that the learned Trial Court basically rely upon the facts that the deceased accompanied Bapan while the other accused were along with him and Bapan gave a false reply. This may be one part of the circumstances for the prosecution but there is no chain of facts as regards the other incriminating circumstances. The evidence of PW.4 and PW.6 who stated that they found the deceased along with the accused persons cannot be acted upon as the I.O. has already contradicted their above version. Similarly the evidence of the M.O. cannot be acted upon to say that because of the injury so sustained by the deceased, he died. On the other hand, as has been discussed above, two injuries i.e. contusion and abrasion were found on the body of the deceased which are not sufficient in the ordinary course to cause death of a person. Lastly it can be note that the learned trial Court has totally failed to appreciate the evidence of CW.1 and CW.2, who are none other than the prosecution witnesses. Lastly it can be note that the learned trial Court has totally failed to appreciate the evidence of CW.1 and CW.2, who are none other than the prosecution witnesses. Both the witnesses in their statement under Section 164 CrPC as well as 161 CrPC, have given corroborative evidence that on the fateful day, the present appellants along with Abul while trying to cross the river Anua by a boat, the boat was toppled as a result of which all of them drowned in the river and on the next day, the dead body of Abul was recovered. Although there is a lapse on the part of the accused persons to report the actual fact to the mother of the deceased (informant) but such lapse cannot be attributed to any sort of criminality in view of the evidence of CW.1 and CW.2. Their evidence is clear enough to show that because of sudden drowning, the incident had happened where some of the boys returned safely and deceased Abuld was not found on that date as it was a dark night. 22. Thus from the totality of the evidence on record, it can be held that the evidence is totally insufficient to held the present appellant to be guilty under any of the offence, while the deceased died due to drowning as per the report of the Medical Officer. Although there is genuine ground of suspicion on the part of the informant but there is lack of legal evidence to sustain the conviction of the accused persons. Accordingly this Court is of the opinion that the appellants deserve acquittal on the benefit of doubt. 23. Accordingly the impugned order dated 23.03.2010, passed by the learned Addl. Sessions Judge, Cachar, Silchar in Sessions Case No.20/2008, is hereby set aside and quashed and both the accused/appellants are let at libery, by acquitting them from the charges leveled against him. 24. He appeal stands allowed. 25. Return the LCR along with a copy of judgment immediately.