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2019 DIGILAW 490 (GAU)

Nabi Hussain v. State Of Assam

2019-04-22

ACHINTYA MALLA BUJOR BARUA, MIR ALFAZ ALI

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JUDGMENT : 1. Heard Mr. HRA Choudhury, learned senior counsel for the appellant. Also heard Mr. M Phukan, learned Additional Public Prosecutor, Assam. 2. An ejahar dated 22.06.2003 was lodged by Md. Samsul Haque before the Officer-in-charge of Silbori Outpost stating that his father Faraz Ali, who went to Silbori market at about 3.30 pm on 21.06.2003 had not returned home. It was stated that at about 5.30 am on 22.06.2003, blood was seen near the culvert of the PWD road and from that place a trail of blood could be seen which showed that something was dragged to the river Pachnai. The lungi which the father of the informant was wearing was also found near the river channel. The informant stated that the accused persons named therein had committed the offence. 3. Amongst others, the appellant Md. Nabi Hussain was also charged and stood trial. In the course of trial, PW-1 Abdul Samad deposed that upon hearing hue and cry in the house of Faraz Ali, where a large number of people had gathered, he also went there and saw blood on the sand in the road in front of the house of Faraz Ali and he also saw a trail of a human being, being dragged towards the river. He also saw the lungi which the deceased Faraz Ali was wearing. The witness further stated that a panchayat meeting was held and in the said panchayat meeting, the accused Nabi Hussain had confessed that he and his elder brother Iman Ali were involved in the murder. But the said witness also stated that the accused Nabi Hussain had a land dispute with the deceased Faraz Ali and a complaint was lodged with the panchayat over the said issue. But the panchayat could not mediate the matter since Faraz Ali had been killed in the meantime. 4. The Investigating Officer (PW-12) in his deposition stated that PW-1 had not stated before him that the accused Nabi Hussain had confessed before PW-1 that he, in collusion with his elder brother, had committed the murder. A perusal of the statement under Section 161 Cr.P.C., in respect of PW-1, also reveals that he had not stated before the police that the accused Nabi Hussain had confessed before him in panchayat meeting that he had committed the murder. 5. PW-2 Md. A perusal of the statement under Section 161 Cr.P.C., in respect of PW-1, also reveals that he had not stated before the police that the accused Nabi Hussain had confessed before him in panchayat meeting that he had committed the murder. 5. PW-2 Md. Akkash Ali, also narrated in the same line as to what PW-1 had stated that they had seen blood marks and a trail of blood of a human being, being dragged to the river side. PW-3 Saiful Islam, also stated that the accused Nabi Hussain had stated before them that he had killed Faraz Ali with the khanti and the police also seized the khanti but in Court the said witness denied any such confession being made by the accused before any such person. 6. PW-4 Saidul Haque who is the son of the deceased in his deposition stated that he also saw the blood mark and a trail of dragging of a person towards the river and could also see the lungi which his father was wearing. The witness deposed that when they found the dead body of the deceased, they saw that his neck was almost severed leaving only a strand of skin and he also saw some penetrated injury on the belly. The witness also stated that after about 20-25 days, since the death of his father, the police took the accused Nabi Hussain to the place where the deceased was found. He further deposed that on being asked, the accused Nabi Hussain told the police that he had killed Faraz Ali with an iron khanti. PW-4 also stated that at around 8:00/9:00 pm on the day of the incident, when he went to a shop to fetch some oil, he had seen the accused Nabi Hussain and Eunus Ali. Seeing them, he did not go to the shop to fetch the oil and returned back out of fear. But the investigating officer had clearly stated in his deposition that PW-4 had not stated before him that he had seen accused Nabi Hussain with a dao in his hand and that after his arrest, Nabi Hussain had confessed before him that he had killed Faraz Ali. 7. PW-7 Dr. But the investigating officer had clearly stated in his deposition that PW-4 had not stated before him that he had seen accused Nabi Hussain with a dao in his hand and that after his arrest, Nabi Hussain had confessed before him that he had killed Faraz Ali. 7. PW-7 Dr. Nikhil Ranjan Sarma who had conducted the post-mortem examination on the deceased deposed that following injuries were found on the person of the dead body: “Dead body of a Muslim male person of 60 years of average built, rigor mortis person, eyes and mouth closed. Injures :- 1. Penetrating injury over front of chest and abdomen (4 and 7 in numbers) respectively 1 cm * 1.5 cm diameter. 2. Cut injury of neck extending from front of left lateral aspect 8 cm long and deep upto vertrebra dividing the tracea and muscles and great vessels on the left side. Chest : Penetrating injury over front of chest (4 in numbers) 1 cm * 1.5 cm in size. Muscles, bones and joints : Muscles and great vessel on the left side of neck severed. Supracondy;ar fracture of left humerus. Abdomen : Penetrating injury over front (7 in Nos.) 1 cm * 1.5 cm. Injuries are anti-mortem in nature. 8. We have taken note that the medical evidence reveals that the muscle and the great vessels on the left side of the neck was severed and the cut injury on the neck was 8 cm long and deep upto the vertebrae dividing the tracea and muscles and great vessels on the left side. We have also taken note of that PW-4, who had seen the dead body also stated that the head was almost severed from the body except for a thin strand of skin. 9. As already noted above, the extra judicial confession by the accused before the PW-1 cannot be relied upon, inasmuch as, the said confession was stated to have been made by the accused in a panchayat meeting, whereas, the same witness further stated that the land dispute between the accused and the deceased could not be mediated by the panchayat as the deceased had died in the meantime. PW-1 also stated that the he had made the confession before several other villagers, but none of any such villagers had been examined. PW-1 also stated that the he had made the confession before several other villagers, but none of any such villagers had been examined. The Investigating Officer in his deposition clearly stated that PW-1 had not stated before him that the accused had confessed that he had committed the offence. Further the statement under section 161 Cr.P.C. of PW-1 also does not reveal any such statement of extra judicial confession being made by the accused. For the foregoing reasons, we are unable to accept that the accused had made any extra judicial confession before any of the witnesses that he had committed the offence. 10. In the absence of any extra judicial confession being made before any of the witnesses, what remains is the deposition of PW-4 who had stated that the accused had confessed before the police that he had killed Faraz Ali with an iron khanti. Under the law, a confessional statement made by the accused before the police, is inadmissible in evidence. We have taken note that the conviction of the accused/appellant was based upon the said confession alleged to have been made by the accused before the police as deposed by PW-4. We also taken note of that even if the said confession is accepted that the accused had killed the deceased with an iron khanti and the iron khanti had been recovered, but from the nature of the injuries sustained by the deceased that his head was also severed, in our view could not have been committed with khanti as the nature of the injuries would require a much more heavier and sharp cutting weapon. For both the reasons, we are unable to accept the prosecution case, that there is a confession made by the accused, before the police that he had committed the offence with a khanti. 11. In view of the above, we are of the considered opinion that the prosecution had failed to prove beyond reasonable doubt that the accused/appellant Md. Nabi Hussain had committed the offence of causing death to the deceased Faraz Ali. Accordingly, the conviction of the accused Md. Nabi Hussain by the judgment and order dated 19.05.2015 by the Additional Sessions Judge, FTC, Darrang, Mangaldoi in Sessions Case No.17(DMFT)/09 convicting him of offence under Section 302/201/34 IPC is accordingly set-aside. 12. Nabi Hussain had committed the offence of causing death to the deceased Faraz Ali. Accordingly, the conviction of the accused Md. Nabi Hussain by the judgment and order dated 19.05.2015 by the Additional Sessions Judge, FTC, Darrang, Mangaldoi in Sessions Case No.17(DMFT)/09 convicting him of offence under Section 302/201/34 IPC is accordingly set-aside. 12. It is stated by the learned counsel for the appellant that the accused is on bail therefore, the bail bond stands discharged. 13. The appeal stands allowed as indicated above. 14. Send down the LCR along with a copy of this judgment.