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2019 DIGILAW 425 (GAU)

Shahidur Rahman v. State of Assam

2019-04-04

ACHINTYA MALLA BUJOR BARUA, MIR ALFAZ ALI

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JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Mr. A.M. Bora, learned senior counsel for the appellants. Also heard Mr. M Phukan, learned Additional Public Prosecutor for the State of Assam and Mr. G. Baishya, learned counsel for the informant respondent No. 2. 2. An ejahar dated 16.09.2007 was lodged in the Dhing Police station by one Musstt. Rahima Khatoon stating that at about 2.45 pm on the given day when her husband Mujibur Rahman went to the field to have a look at the cultivation which was located at a little distance from their house, the accused persons named therein had struck her husband repeatedly with a sharp weapon causing his death and thereafter fled away from the place of occurrence. 3. Mr. AM Bora, lerned senior counsel for the appellant by referring to the deposition of PW-1 Azizur Rahman makes submission that in the part of the deposition made on 19.11.2009, it is stated as I do not know as to why I was asked to put my signature in Ext.3. No item was seized in my presence. It is not a fact that while making statement before police, I said that I had seen my younger brothers Sahidur and Wahidur running, carrying blood stained khukris in their hands. Although the said part of the deposition is recorded to be examination in chief on oath, but the nature of the deposition reveals that it was either made after some leading questions being put to the witness or it was made after a suggestion being made. Accordingly, the learned senior counsel submits that the same is more of a cross examination rather than examination in chief and as such PW-1 is to be declared to be a hostile witness. 4. We have verified the deposition of the PW-1 from the original records and could notice that the said part of the deposition was made on oath on 19.11.2009 as an examination in chief and therefore it cannot be construed that it was a part of the cross examination. Further, from the manner in which depositions were made indicates that it was made pursuant to some leading questions or suggestions and if in fact such depositions were made in course of examination-in-chief, it was always open for the defence to object to such leading question or the suggestions being made. Further, from the manner in which depositions were made indicates that it was made pursuant to some leading questions or suggestions and if in fact such depositions were made in course of examination-in-chief, it was always open for the defence to object to such leading question or the suggestions being made. Having not so objected while the depositions were made, it would now not be open for the appellant to raise the issue and make a claim that because of such leading questions or suggestions being made, the witness be considered as hostile witness. 5. In the trial, Azizur Rahman who deposed as PW-1 had stated that on the given day, at about 2 or 3 pm, while he was having a hair cut in a barber shop at the centre of the village, he heard a hue and cry from the direction of Laterijaan located to the east. Then one Sattar and some other persons told him that Wahidur and Sahidur had killed Majibur and upon hearing the same he went to the place of occurrence and saw Mujibur s dead body on the bank of Laterjaan. On seeing the deceased, the witness became senseless and fell down on the ground. He also stated that while he was running towards the place of occurrence, he saw the accused persons running away from the direction of the Laterijaan. 6. In the cross-examination, the witness stated that it is not a fact that he did not go to the place of occurrence saw the accused persons from the barber shop itself and further that it is not a fact that he had falsely stated that he had seen the accused persons running away. 7. From the evidence of the Investigating officer, PW-8, in his cross examination, it is taken note of that the PW-1 Azizur Rahman had not stated before the Investigating Officer that after hearing about the incident while he was in the barber shop to have his hair cut, he ran to the place of occurrence, which again conforms the statement of the PW-1 under Section 161 Cr.P.C. wherein he stated that he had seen two persons running away while he was sitting in the barber shop. 8. 8. From the aforesaid contradiction, we are unable to accept the statement of the PW-1 Azizur Rahman in his examination in chief that while he was running towards the place of occurrence, he had seen the accused persons running from the direction of the Laterijaan which happens to be the place of occurrence. 9. PW-4 Rahima Khatun who is the wife of the deceased stated in her examination in chief that the occurrence took place on 16.09.2007 at about 2/2.30 pm and at that time, she was at home. She saw the accused persons in front of their house. They were looking for her husband as her husband had earlier filed a case against them in the police station and in that connection two police personnel earlier came to their house at about 2 pm. She further deposed that after about half an hour, the police personnel left their house. After the police personnel went away, her husband went out to the jute field to see the jute cultivation. At that time, when her husband had left, she was at her home. She deposed that after some time, she heard hulla coming from the side of the jute cultivation and hearing hulla, she ran towards that side. Thereafter, she deposed that she saw the accused persons assaulting her husband with a Khukri in the jute cultivation. In the cross-examination, the said witness stated that it takes about 5 to 10 minutes to reach the Laterijaan Beel i.e. the place of occurrence from her house. She also stated that at Laterijaan she saw the accused persons and also saw Hanifa, Joynal, Monjur and Lundur Ali. Then she states that while she was going to Laterijann, she saw the accused persons coming from Laterijaan towards her side. 10. We have taken note of that in her examination in chief, PW-4 who claims to be an eye witness stated that having heard the hulla coming from the side of the jute cultivation, she ran towards the place and saw the accused persons assaulting her husband with a khukri in the jute cultivation. As she also stated that she was in her house at the time when she heard the hulla, it is to be understood that she heard the hulla from her house and upon hearing hulla started running towards the place of occurrence. As she also stated that she was in her house at the time when she heard the hulla, it is to be understood that she heard the hulla from her house and upon hearing hulla started running towards the place of occurrence. As in her own evidence, she had deposed that the place of occurrence is about 5/10 minutes, we do also have to understand that she took 5/10 minutes to reach the place of occurrence after hearing hulla. It being so, if the occurrence of the hulla can be related to the event of the assault being inflicted, it cannot be accepted that after traversing a distance which takes 5/10 minutes, she saw the accused persons assaulting the deceased. Further, the PW-4 in chief says that she saw the accused persons assaulting her husband, while in cross she stated that she saw the accused persons coming towards her when was going to Laterijaan. 11. Further, PW-5 Joynal Abedin in his deposition had stated that after having his meal at home he went towards the place of occurrence and after going there, he saw three to four persons going towards the northern side and, he also stated that in the place of occurrence, he found one Hanif and after having enquired from him, he came to know that the dead body of the deceased Mujibur Rahman was lying there. The witness does not state the presence of PW-4 Rahima Khatoon when he had reached the place of occurrence. From the evidence of PW-5 also, it can be concluded that the PW-4 had not reached the place of occurrence in order to witness the assault but had reached the place after the death was caused to the deceased. 12. For both the reasons, we are unable to accept that PW-4 Rahima Khatoon is an eye witness to the assault on the deceased Mujibur Rahman which had caused his death. We also take note of that although PWs. 3, 5 and 6 had been declared to be hostile but we do not find any material in their evidence which may come to the aid of the prosecution. Further in the evidence on record, we also do not find any circumstantial evidence with a complete chain which would establish that the accused persons had caused the death of Mujibur Rahman in the manner. 13. Further in the evidence on record, we also do not find any circumstantial evidence with a complete chain which would establish that the accused persons had caused the death of Mujibur Rahman in the manner. 13. In the aforesaid circumstances, we are of the view that the prosecution had failed to prove beyond all reasonable doubt that the death of the deceased Mujibur Rahman was caused by the accused persons. 14. Accordingly, we set aside the Judgment and Order dated 20.08.2015 of the learned Additional Sessions Judge, Nagaon in Sessions (TI) Case No. 73 (N) of 2008 convicting the accused appellants under Section 302/34 of the IPC. Accordingly, the bail bond may be discharged. 15. In view of above, both the accused persons are set at liberty forthwith, if not required in any other offence. 16. Appeal stands allowed to the extent indicated above.