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2019 DIGILAW 500 (GAU)

Md. Gafar Ali @ Bhaku Singh Ali v. State of Assam

2019-04-24

ACHINTYA MALLA BUJOR BARUA, MIR ALFAZ ALI

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JUDGMENT : A.M. Bujor Barua, J. Heard Ms. R. Dutta, learned Amicus Curiae appearing for the appellant and Mr. M. Phukan, learned Additional Public Prosecutor appearing for the State of Assam. 2. This is an appeal against the judgment and order dated 11.12.2015 of the learned Additional Sessions Judge, Golaghat, Assam passed in Sessions Case No.102/2009, whereby the accused/appellant was convicted and sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs.5000/- and in default, simple imprisonment for another 06(six) months for committing the offence under Section 302 of the Indian Penal Code (in short IPC). 3. The prosecution case in brief is that an ejahar dated 18.09.2008 was lodged by one Ramija Begum, wife of Lachit Ali inter-alia stating that at around 12.30 p.m. of 18.09.2008 when she and her husband were coming home, their co-villagers Md. Inam Ali and Bhaku Singh Ali @ Gafar Ali had killed her husband by hacking him with a dao on his head, neck and back on the Kordoiguri village road near the Namghar. When the informant tried to offer resistance, the accused persons rushed at her with a dao, whereupon she fled away from the place of occurrence. 4. We have taken note of that although the ejahar names two accused persons namely Md. Inam Ali and Bhaku Singh Ali @ Gafar Ali, but the accused Md. Inam Ali died on 15.06.2013 and accordingly the trial was abated against the said accused. 5. PW-1 Babatu Rahman son of the deceased had deposed that upon hearing some people shouting that Lachit was being cut, he went out and saw that his father was lying dead on the village road. 6. PW-2 Ramija Begum, the informant had deposed that on the given day when she along with her husband were coming from Golaghat after purchasing some goods, the two accused persons came out of the jungle and the accused Gafar Ali had hacked her husband on his head with a long dao from behind. After that the same accused had dealt about 10 to 12 cut blows on his head and back. The witness deposed that she was about 3 feet ahead of her husband and when the accused Inam Ali had rushed at her, she ran away. After that the same accused had dealt about 10 to 12 cut blows on his head and back. The witness deposed that she was about 3 feet ahead of her husband and when the accused Inam Ali had rushed at her, she ran away. She further deposed that when she reached the police out post, she could know that the police already knew about the occurrence and had reached the place of occurrence. She further deposed that she had put her thumb impression in the ejahar and lodged the same with the police out post. 7. The Investigating Officer Liyakat Bora, who deposed as PW-15 had stated that on the given day at about 1.15 p.m. one Dhrubajyoti Borah of Kordoiguri had informed over phone that a person had been cut and left near the Namghar. Accordingly, the GD entry number 264 was made and the Investigating Officer proceeded to the place of occurrence along with the Assistant Sub Inspector Nakul Rajkhowa and other staffs. The said deposition made by the Investigating Officer appears to be in conformity in what PW-2 had deposed that the police already knew about the occurrence when she reached the police out post. We have also gone through the cross-examination of the PW-2 Ramija Begum and from the cross-examination nothing can be noticed which may demolish the evidence given by the eye witness PW-2 that the accused Gafar Ali had hacked her husband on his head with a long dao from behind and that thereafter he had given about 10 to 12 cut blows on his head and neck. 8. The medical evidence of Dr. Partha Gohain PW-5 shows the following injuries on the body of the deceased:- "There was presence of one incised cut wound horizontally placed measuring 6cm x 4cm x 3cm extending from outer canthus of right eye bisecting right external ear, left occipital bone of skull; There was also an incised wound on the left side of neck obliquely placed measuring 4cm x 4cm x 2 cm at the level of thyroid cartilage cutting the left jugular vein; One incised cut wound measuring 6cm x 4cm x 4 cm placed over the back of the deceased fracturing the lumbo-thorasic vertebrae; There was also presence of incised wound horizontally placed over left scapular region; A haematoma of size 4 cm x 8cm seen on right side of tempero-occipital region of skull. Fracture of right temporal and occipital bones; Membrane-lacerated; Laceration of right temporal lobe. Brain matter contains fluid and clotted blood; Other organs are healthy." 9. From the nature of the injuries, it is taken note of that apart from the incised wound of 6cm x 4cm x 3cm extending from the outer canthus of right eye bisecting right external ear, left occipital bone of skull, there are several other incised wounds on the head portion as well as neck and back portion of the deceased. The medical evidence is also consistent with the eye witness account of PW-2 that Gafar Ali had hacked her husband on his head with a long dao from behind and thereafter dealt about 10 to 12 cut blows. Although the number of injuries may not be 10 to 12, but at the same time it can also be noticed that there were at least 5 to 6 injuries on the head, neck and back portion of the deceased. 10. PW-13 Hamid Ali, who was the handyman of a bus had deposed that when they were coming from Bokakhat to Golaghat, two persons had boarded the vehicle armed with a dao and the police had seized the dao and the Exhibit-3(2) is his signature in the seizure list and material Exhibit-1 is the dao. 11. The Investigating Officer, who had deposed as PW-15, in his deposition had stated that from the place of occurrence, he came to know that the accused persons Inam Ali and Bhaku Sigh Ali @ Gafar Ali had inflicted the cut injuries on the deceased and had fled away from the place of occurrence by boarding on a Golaghat bound city ride vehicle bearing registration No.AS25A-7713. He then directed ASI Nakul Rajkhowa, who was accompanying him to hold the inquest on the deadbody and he went in search of the vehicle. The Investigating Officer found the vehicle near Panka and inside the vehicle he found Inam Ali and Gafar Ali with the dao which was used for the offence, whereupon he had seized the dao from them in the presence of the witnesses at the place itself. The said evidence of the Investigating Officer is also consistent with the evidence of PW-13 the handyman that the two accused persons were found in the concerned public vehicle coming from Bokakhat to Golaghat and that the dao was also seized from inside the vehicle. The said evidence of the Investigating Officer is also consistent with the evidence of PW-13 the handyman that the two accused persons were found in the concerned public vehicle coming from Bokakhat to Golaghat and that the dao was also seized from inside the vehicle. 12. From the aforesaid evidence, more particularly, the eye witness account of PW-2, which remains unrebutted as well as the two accused persons being reported to have fled away from the place of occurrence in a public vehicle coming towards Golaghat and the Investigating Officer having found them inside the vehicle along with the dao, which was seized, we are of the view that the prosecution was able to establish beyond all reasonable doubt that the accused appellant Bhaku Singh Ali @ Gafar Ali had committed the offence of inflicting the fatal blows on the deceased, which had caused his death. The learned counsel for the appellant could not submit any further in a convincing manner as to why the deposition of PW-2 is not to be taken into consideration and nor any other submission based upon any other evidence or material has been made. 13. We have already taken note of that the other accused person Inam Ali had died in the meantime on 15.06.2013 and as such the trial against him was abated. In the circumstance, we uphold the conviction of the accused appellant Bhaku Singh Ali @ Gafar Ali as convicted by the judgment and order dated 11.12.2015 of the learned Additional Sessions Judge, Golaghat in Sessions Case No.102/2009 under Section 302 IPC. 14. Accordingly, the appeal stands dismissed and the conviction and sentence of the accused appellant Bhaku Singh Ali under Section 302 IPC sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs.5000/- and in default thereof a further simple imprisonment of 06(six) months is upheld. 15. Before parting with the record, we appreciate the valuable service rendered by Ms. R. Dutta, learned Amicus Curiae. Accordingly, it is directed that an amount of Rs.7,500/- as legal fees be paid to her by the High Court Legal Service Committee upon production of a copy of this judgment and order. 16. Send back the LCR along with a copy of this judgment immediately.