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2019 DIGILAW 867 (GAU)

Md Saiful Islam v. State Of Assam

2019-08-01

ACHINTYA MALLA BUJOR BARUA, HITESH KUMAR SARMA

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JUDGMENT : A.M. Bujor Baruah, J. Heard Mr. KM Haloi, learned counsel for the accused-appellant. Also heard Mr. AM Bora, learned senior counsel for the respondent Nos. 2 to 9 as well as Ms. S Jahan, learned Additional Public Prosecutor, appearing for the State respondent No. 1. 2. An ejahar dated 13.11.2009 was lodged by Md. Saiful Islam before the Officer-in-Charge of Juria Police Station, inter-alia, stating that at about 11:00 pm on 12.11.2009, the accused Md. Abdul Jalal had called his father, Md. Abdul Mutalib and took him to the front of Melekadhing M.E. Madrassa School and the said accused along with other accused persons named in the ejahar abused him in various ways and then killed him by stabbing with spear, which they were carrying. Upon hearing the scream of his father, they rushed to the place of occurrence from their house and saw that the accused persons were running away from the place of occurrence. 3. We have taken note that the ejahar was lodged at 8:30 am on 13.11.2009. But, the evidence on record, more particularly, from the deposition of PW7, Md. Harisuddin, it is seen that while the occurrence took place around 11:00 pm on 12.11.2009, he made a phone call to the Juria Police Station immediately upon seeing the dead body and within half an hour thereof, the police arrived. 4. Accordingly, it has to be construed that the investigation of the case started immediately after the said phone call from PW7, Md. Harisuddin and the subsequent, FIR, which was lodged on 13.11.2009 would be hit by Section 162 of the Cr.PC. 5. Be that as it may, upon investigation, the accused persons were charged of having caused the death of the deceased, Abdul Mutalib and thereby charged under Section 302 of the IPC. 6. Pw1, Saiful Islam, the informant, who had lodged the ejahar on the next day, in his deposition stated that the accused, Abdul Jalal came and called his father and took him to his house. It is also stated that his father was a Bej. In cross, PW1 stated that his mother told him that the son of Jalaluddin was sick and therefore, his father was called for "jarafuka", which is understood to be some kind of treatment given by the deceased to the sick son of accused, Abdul Jalal. It is also stated that his father was a Bej. In cross, PW1 stated that his mother told him that the son of Jalaluddin was sick and therefore, his father was called for "jarafuka", which is understood to be some kind of treatment given by the deceased to the sick son of accused, Abdul Jalal. PW1 further deposed that his father been taken away by Abdul Jalal, he was assaulted by the accused persons on the road. He further deposed that upon hearing some shouting and noises, he himself, Saidul Islam, Mofijul Islam, Nurul Islam and some other villagers went to the place of the incident and saw that 8 (eight) numbers of accused persons were running away from the place of occurrence. He further stated that when he reached the place of occurrence, he saw that his father had already died. 7. Pw2, Saidul Islam also a son of the deceased, Abdul Mutalib in his deposition stated that the accused Abdul Jalal has called his father in the night and after 10 (ten) minutes of his father leaving, when they heard some shouting, came out of his house followed by Saiful Islam and Mofijul Islam. Thereupon, they saw that Jalaluddin, Razak, Hekim, Barek, Jalil, Rafiqul and Safia Khatoon were holding weapons in their hands and further that accused, Abdul Razak had given a spear blow on the body of his father. 8. Pw3, Mafijul Islam, the other son of the deceased Abdul Mutalib in his deposition stated that when he was in his house on the given day, Abdul Ajij came and called his father to perform some "jarafuka" of his son at about 11:00 pm in the night. After about 10 (ten) minutes of his father leaving, they heard some shouting and upon coming out saw that their father was being beaten by the accused persons near the M.E. Madrassa School. 9. Apart from the aforesaid witnesses, PW4, Abu Samah stated in his deposition that around 12:00 pm in the night, he was sleeping in his house, when he heard a cry from outside. He himself, the VDP Secretary, Harisuddin and some other villagers came out and proceeded towards the M.E. Madrassa School and saw that Abdul Mutalib was lying on the ground. He deposed that the VDP Secretary, Harisuddin informed Saiful Islam the son of the deceased. 10. Pw5, Matiur Rahman was the Gaonburah of the village. He himself, the VDP Secretary, Harisuddin and some other villagers came out and proceeded towards the M.E. Madrassa School and saw that Abdul Mutalib was lying on the ground. He deposed that the VDP Secretary, Harisuddin informed Saiful Islam the son of the deceased. 10. Pw5, Matiur Rahman was the Gaonburah of the village. In his deposition, he stated that he was sleeping in his home when he heard some shouting and when he came out, he saw that many people were going towards the M.E. Madrassa School. He also saw the dead body of Abdul Mutalib lying on the road. He stated that he met PW1, Saiful Islam at the place of occurrence as well as the daughter of the deceased Abdul Mutalib and when enquired, Saiful Islam told him that they came to construct a house over the land of Awal Hussain and at that time, some outcry occurred. 11. Pw6, Dr. Narendra Bhagawati, in his deposition stated the injuries that the deceased has suffered. As we are not deciding the appeal on the basis of the nature of the injuries suffered, we do not further reflect the injuries that were found on the body of the deceased. 12. Pw7, Harisuddin, who was the VDP Secretary in his deposition stated that at around 11:00 pm on the given date, when he was coming back home after discharging his duty, he heard hue and cry. Thereupon, he along with the Gaonburah, Matiur Rahman and Abu Samah came out and proceeded towards the place of occurrence. Upon arrival, he saw the dead body of Abdul Mutalib lying on the road. The witness as noticed earlier has deposed that having seen the dead body, he had dialled the police station, whereupon the police arrived about half an hour later. The witness also stated that he had informed the son of the deceased, over phone and he also came there accompanied by Saidul and Mofidul, who are also sons of the deceased Abdul Mutalib. When the witness asked the son of the deceased, as to who has killed their father, they replied that they did not know. 13. The witness also stated that he had informed the son of the deceased, over phone and he also came there accompanied by Saidul and Mofidul, who are also sons of the deceased Abdul Mutalib. When the witness asked the son of the deceased, as to who has killed their father, they replied that they did not know. 13. Pw8, Nurul Islam in his deposition stated that when he was in his house on the given day, he heard some noise around 10:00 pm and came out of his house and saw that many people were proceeding towards the place from where the hue and cry came from. He deposed that he had also seen that the accused persons were coming from the side from where the hue and cry had taken place and out of them, 2 (two) of the accused persons had covered their face with some clothes. Upon arriving at the place of occurrence, the witness found that the deceased Abdul Mutalib was lying with some injuries on his right shoulder and left abdomen and the deceased had already died. 14. Apart from the above, we do not find that the other evidence being led by the prosecution would be relevant for the purpose of deciding the present appeal. 15. By the judgment and order, dated 20.02.2016, the learned Additional Sessions Judge, FTC, Nagaon in Sessions Case No. 164(N)/2011 had acquitted all the accused persons. Being aggrieved, the present appeal has been preferred by the informants. 16. Mr. KM Haloi, learned counsel for the appellant has raised the contention that the evidences of PW1, 2 and 3 were not duly considered by the learned Additional Sessions Judge while acquitting the accused persons by the judgment dated 20.02.2016. He further contends that the evidences of PW7 and PW8 were also relevant for the purpose of arriving at any conclusion as regard as to who had caused the death of the deceased Abdul Mutalib. 17. In view of such submission, we again look into the evidence of PW1, PW2 and PW3. He further contends that the evidences of PW7 and PW8 were also relevant for the purpose of arriving at any conclusion as regard as to who had caused the death of the deceased Abdul Mutalib. 17. In view of such submission, we again look into the evidence of PW1, PW2 and PW3. The evidence of PW1 can be explained in 2 (two) parts, one regarding the event of accused Abdul Jalal coming to his house and taking his father, Abdul Mutalib away and the other as regard the evidence rendered that upon reaching the place of occurrence, the witness had seen 8 (eight) numbers of accused persons running away from the place of occurrence. 18. As regard the evidence of PW1 regarding the accused person running away from the place of occurrence, we find that the witness had not named the accused person. A contention is raised by the appellant that the informant having specifically named eight person in the ejahar dated 13.11.2009, therefore, the indication by the PW1 in his evidence refers to the 8 (eight) accused person who were named in the said ejahar. As the ejahar itself had already been held to have been hit by Section 162 Cr.PC, we are unable to accept such contention of the appellant as regard the identity of the accused persons based upon the ejahar dated 13.11.2009. 19. Pw2, Saidul Islam, also a son of the deceased Abdul Mutalib in his deposition stated that the accused Jalal had called their father in the night and after about 10 (ten) minutes of their leaving, a shout was heard. When he came out along with his other brothers being PW1 and PW3, he had seen that Jalal, Razak, Hekim, Barek, Jalil, Rafiqul and Safia Khatoon were holding arms in their hands and accused Abdul Razak had given a spear blow on the body of his father. 20. Pw3, Mafijul Islam, who is another son of the deceased Abdul Mutalib in his deposition also stated that he was in his house, when Abdul Aziz came and called his father to perform some activities on the son of the accused and after about 10 (ten) minutes of his father leaving, they heard some sounds. When all the brothers came out, they saw that their father was being beaten up by the accused persons near the M.E. Madrassa School. 21. When all the brothers came out, they saw that their father was being beaten up by the accused persons near the M.E. Madrassa School. 21. Admittedly, PW1, PW2 and PW3 all came out together as per their evidence. But, PW1 had only seen that 8 (eight) numbers of accused persons were running away from the place of occurrence. If that is so, it is difficult to believe that PW2 and PW3, who also came together with PW1 had seen the occurrence taken place and could have identified the accused, who had caused the assault. 22. When the evidence of PW2 and PW3 is read together with that of PW7, Harisuddin, it is taken note of that PW7 had seen the dead body of the deceased when he arrived at the place of occurrence and thereafter, he informed the PW1 over phone about the incident. Thereafter, PW1 along with PW2 and PW3 had arrived at the place of occurrence. If PW7 who reached the place of occurrence earlier had not seen the occurrence, then the PW1, PW2 and PW3 who had reached later also cannot see the occurrence. From the evidence of PW7, it is therefore not believable that PW2 and PW3 had seen the occurrence and that the accused named by them had caused the assault on the deceased. 23. From what is concluded above, it cannot be said that from the evidences of PW1, PW2 and PW3 it has been established that the accused-appellant has caused the death of the deceased Abdul Mutalib. Another aspect that remains is that PW1 and PW3, who were in their house at the relevant time and were the sons of the deceased Abdul Mutalib had seen that accused Abdul Jalal came and called their father and thereafter took him away along with him. If that is so, a question that may arise is whether the accused, Abdul Jalal is required to explain as to what happened to the deceased Abdul Mutalib by invoking the provisions of Section 106 of the Evidence Act. We have taken note that the evidence of PW1 and PW2 as regard the accused Abdul Jalal coming and taking the deceased with him had been put across the Investigating Officer, PW9. 24. We have taken note that the evidence of PW1 and PW2 as regard the accused Abdul Jalal coming and taking the deceased with him had been put across the Investigating Officer, PW9. 24. Pw9 in his cross had stated that as regard PW1, it was not mentioned in the FIR filed by him that accused Abdul Jalal had called his father for performing some treatment to his son. He further stated that PW3, Mafijul Islam did not make any statement under Section 161 of the Cr.PC to the effect that Abdul Ajij came to their house and called his father for performing some treatment to his son. In view of the denial of the Investigating Officer, as regard the statement made by PW1 and PW3 at the time of investigation as regard Abdul Jalal coming and taking away the deceased Abdul Mutalib with him, we find that such evidence of PW1 and PW3 as regard Abdul Jalal coming and taking away Abdul Mutalib is an improvement. Accordingly, the said part of the evidence of PW1 and PW3 regarding accused Abdul Jalal coming and taking away the deceased Abdul Mutalib along with him cannot be accepted. Accordingly, we find no reason to invoke Section 106 of the Evidence Act in respect of accused Abdul Jalal to explain any special fact that may be within his knowledge. 25. Accordingly, the core contention of the appellant regarding not giving due consideration to the evidence of PW1, PW2 and PW3 are found to be unacceptable. 26. The evidence of PW7 and PW8 also does not, in any manner, lead to any conclusion that it is the accused-appellant, who had done the act of inflicting the injuries on the deceased, Abdul Mutalib, which has caused the death. 27. In view of the above, we do not find any reason to interfere with the conclusion arrived at by the learned Additional Sessions Judge, FTC, Nagaon in Sessions Case No. 164(N)/2011 vide judgment and order, dated 20.02.2016. 28. Accordingly, this criminal appeal stands dismissed. 29. Send back the LCR.