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2020 DIGILAW 129 (GAU)

Md Ekabbar Ali v. State Of Assam

2020-02-04

MIR ALFAZ ALI, S.HUKATO SWU

body2020
JUDGMENT Mir Alfaz Ali, J. - Heard Mr. HRA Choudhury, learned senior counsel assisted by Mr. Azad Ahmed, learned counsel for the appellants and Ms. S.Jahan, learned Additional Public Prosecutor, Assam for the State/respondent. 2. This appeal is directed against the judgment and order passed by the learned Additional Sessions Judge, Bilasipara, Dhubri in Sessions Case No. 139/2015, whereby, the learned Sessions Judge convicted the appellant under Sections 302/341 of the Indian Penal Code and sentenced him to rigorous imprisonment for life and fine of Rs. 20,000/- with default stipulation u/s 302 IPC. The appellant was further sentenced to undergo simple imprisonment for month and to pay fine of Rs. 500/- with default stipulation u/s 341 IPC. 3. As per prosecution case on 11-10-2010 at about 5.30 in the morning, deceased Moinul Hoque, father of the informant was going to Hatipota from his house and no sooner he reached in front of the house of Ekabbar Ali, Ekabbar Ali dealt him a blow with an axe, which he was carrying in his hand, and thereby, caused grievous injury to Moinul Hoque. The villagers assembled at the place of occurrence, took the victim to hospital, however, he succumbed to the injuries. PW-1, the son of the victim, lodged the FIR (Ext.-1), on the basis of which, police registered Chapar P.S. Case No. 240/2010 u/s 341/302 IPC. In course of investigation, police recorded the statement of the witnesses, prepared inquest report on the body of the victim, seized the alleged weapon of offence, sent the body for post-mortem examination and Dr. Tofizur Rahman (PW-8) conducted the post mortem examination on the body of the victim. 4. The autopsy doctor found the following injuries on the body of the victim :- wxyz "i) Cut injury over the face (Lt) side with blood present (5"x 2 x 1 "). zyxw wxyz ii) Two cut injuries over the left tempera-parietal region with fracture left topsoil bones with blood present (2 x " x "). zyxw wxyz iii) cut injury over the scalp.; zyxw wxyz iv) Cut injury over the scalp. Terpo-parietal region blood is present two nos. (2x " x ") (ii) Parietal region blood is present. zyxw wxyz Skull- fracture left temporal bones, Membrane Rupture at the site of fracture skull and blood present over the membrane. zyxw wxyz iii) cut injury over the scalp.; zyxw wxyz iv) Cut injury over the scalp. Terpo-parietal region blood is present two nos. (2x " x ") (ii) Parietal region blood is present. zyxw wxyz Skull- fracture left temporal bones, Membrane Rupture at the site of fracture skull and blood present over the membrane. zyxw wxyz Brain and spinal cord : Blood over the brain is present." zyxw wxyz In the opinion of the doctor, cause of death was shock and haemorrhage as a result of the cut injuries sustained by the deceased. zyxw 5. On conclusion of investigation, charge-sheet was laid against the present appellant, who eventually stood trial for the offence of murder before the court of Sessions. 6. During trial, learned Sessions Judge framed charges against the appellant u/s 302/341 IPC, to which he pleaded not guilty. 9(nine) witnesses were examined by the prosecution in order to bring home the charges and on appreciation of the evidence, learned Sessions Judge convicted the appellant u/s 302/341 IPC and awarded sentence as indicated above. 7. Learned senior counsel for the appellant, Mr. HRA Choudhury submits, that though, the death of the deceased was caused as a result of injury sustained by him, there was no eye witness to the occurrence. The prosecution witnesses, who sought to project themselves as eye witness, were in fact, not the eye witness and their testimony is tainted with full of contradiction and inconsistencies and as such, no conviction could have been recorded on the basis of such unreliable testimony of the prosecution witness, submits Mr. Choudhury. 8. Supporting the conviction and sentence of the appellant, Ms. S. Jahan, learned Addl. P.P. submits, that at least the oral testimony of PW-2 and PW-3 are consistent and sufficient to establish the charges against the appellant, and therefore, the impugned judgment calls for no interference. 9. We have considered the submission made by the learned counsels and also meticulously gone through the evidence and materials brought on record. 10. Since the impugned judgment is assailed mainly on the ground that there was no eye witness to the occurrence and the witnesses examined by the prosecution are not worthy of credence, it would be apposite to scrutinize the evidence once again. 11. The first witness examined by the prosecution was Yakub Ali, PW-1, the son of the victim, who also lodged the FIR. 11. The first witness examined by the prosecution was Yakub Ali, PW-1, the son of the victim, who also lodged the FIR. PW-1 testified, that when his father was going to take tea in the morning at about 5.30 am, the accused hacked him with an axe near the house of the accused causing grievous injury. On hearing the scream of his father, he rushed to the place of occurrence and found him lying on the ground in injured condition. He also stated that he saw the appellant fleeing from the place of occurrence. During cross-examination, this witness stated that at the time of occurrence, he was at his home and hearing "hulla", he went to the place of occurrence. However, from his previous statement recorded u/s 161 CrPC, which was confronted to him and confirmed by PW-9 shows, that he did not state, in his previous statement, that he had seen the occurrence. Rather his statement before the police was that he came later to the place of occurrence and found that the injured was already taken to hospital. It was elicited from his cross-examination, that PW-3, Asrab Ali and Sohrab Ali were at a different place and not at the place of occurrence at the relevant time. What crystallizes from the oral testimony of this witness is that in his previous statement recorded u/s 161 CrPC he clearly stated, that he had not seen the occurrence and came to the place of occurrence later on. Whereas, while deposing in court for the first time this witness sought to project himself as an eye witness. In the FIR lodged by him, he tried to implicate three persons, including the present appellant, attributing specific overt act to each of them, but while deposing in court, he remained silent about the averment made in the FIR and implicated only the appellant. The cross-examination of this witness shows that he was inimical to the victim, and as such, he also appears to be a highly interested witness. This being the position, in our considered view, no credibility can be attached to this witness. 12. Pw-4, Piyar Ali, who is also another son of the victim stated, that hearing scream of PW-2, he came to the place of occurrence and had seen that the accused was assaulting his father with an axe. This being the position, in our considered view, no credibility can be attached to this witness. 12. Pw-4, Piyar Ali, who is also another son of the victim stated, that hearing scream of PW-2, he came to the place of occurrence and had seen that the accused was assaulting his father with an axe. He further stated that as soon as he reached the place of occurrence, the accused left the place. This witness also did not state, in his previous statement that he had seen the occurrence. Rather his previous statement, which was confronted to him and confirmed through the PW-9 was that when he was coming to Newhati, some women informed him that his father was assaulted and had been taken to hospital. Immediately he went to Chapor hospital and found his father dead. Therefore, this witness also projected himself as eye witness for the first time in court contradicting his previous statement on material facts. Apparently he is also the son of the victim. Therefore, in view of the contradiction with the previous statement of PW- 9 on material facts, oral testimony of this witness also hardly inspires confidence. 13. Pw-5 was declared hostile. He stated that at the time of occurrence, he was driving vehicle and not present at the place of occurrence. PW-6 stated that on hearing hue and cry he came out and saw Moinul Hoque, the victim was lying on the ground and that he along with others brought the victim to his house, and as such, evidently he was a post-occurrence witness. 14. Pw-7 was also declared hostile by the prosecution, who testified that on hearing hue and cry he came out and saw Moinul Hoque was lying injured. He however, stated that after his arrival, Rasul also came and they lifted the injured to the house of Asrab. Although, PW-5 & PW-7 were declared hostile, we do not find anything material in their testimony, which can be of any help or assistance to the prosecution. Apparently all these four witnesses, viz., PW-4, PW-5, PW-6 & PW-7 were post occurrence witnesses, as they came later and did not see the occurrence. 15. Pw-2 stated that on the relevant day, at about 5.30 pm in the afternoon, while she was busy with his work, she saw the victim Moinul Hoque proceeding through the road. Apparently all these four witnesses, viz., PW-4, PW-5, PW-6 & PW-7 were post occurrence witnesses, as they came later and did not see the occurrence. 15. Pw-2 stated that on the relevant day, at about 5.30 pm in the afternoon, while she was busy with his work, she saw the victim Moinul Hoque proceeding through the road. He also saw Ekabbar was coming along the road and Ekabbar wounded the victim Moinul Hoque by hacking him with an axe, which he was carrying in his hand, as a result of which, the victim fell down on the ground. PW-2 raised alarm, hearing which, villagers turned up. It was further elicited during her cross-examination, that hearing commotion made by her, initially 10/12 persons came and then, a large number of people gathered at the place of occurrence. She also stated during cross-examination, that immediately on seeing the occurrence, she became senseless. She further stated that there were various shops and tea stalls etc near the place of occurrence which were open and people were moving on the road. PW-3, who happened to be the husband of the PW-2 stated, that hearing scream of his wife, he rushed to the place of occurrence and had seen the appellant hacking Moinul Hoque with an axe at the place of occurrence. Thereafter, he also stated to have seen the appellant moving away from the place of occurrence with an axe in his hand. Although PW-3 deposed in court, that he saw the accused Ekabbar hacking the victim with an axe, in his previous statement made before police, he did not state that he saw the accused hacking the victim with an axe. However, he stated that he came and saw the victim lying with an injury and the accused standing with an axe. He scolded the accused and he left the place. He further stated, that having seen the occurrence he got frightened and came back to his home. Therefore, although the PW-3 stated to have seen the occurrence, in his previous statement he stated that only he saw the accused standing near the victim with the axe in his hand. PW1, who is the son of the victim stated, that PW-3 was not present at the place of occurrence and he was in some other place. Therefore, although the PW-3 stated to have seen the occurrence, in his previous statement he stated that only he saw the accused standing near the victim with the axe in his hand. PW1, who is the son of the victim stated, that PW-3 was not present at the place of occurrence and he was in some other place. It was elicited during the cross-examination of these two witnesses, that though, their house was in close proximity to the place of occurrence, both of them were working in brick-kiln, which was at a distance of 7/8 km from their house. Though PW-3 deposed that hearing scream of his wife (PW-2), he came out. PW-2 never stated that his husband (PW-3) came out hearing alarm raised by her. Rather, she stated that hearing alarm raised by him, initially 10/12 persons assembled and later on many people came. It was also elicited during the cross-examination of PW-2, that she did not tell anyone about the occurrence. We also take note that according to PW-2 and PW-3 the occurrence took place in the evening when all the shops, tea-stalls etc were opened and people were loitering on the road. On the other hand, it is the case of the prosecution, that the occurrence took place at the dawn hours immediately after the Fazar namaj (morning prayer). In view of the above glaring inconsistencies in the oral testimony of the PW-2 and PW-3, the presence of PW3 at the place of occurrence also appears to be doubtful. PW-1, who is none but the son of the victim also stated, that PW-3 was at a different place at the time of occurrence. It also appears from the evidence of this witness that PW-2 & PW-3 were working in brick-klin at a distance of 7/8 km from their house, where they were provided with accommodation. In view of the above facts and circumstances, PW-2 & PW-3 by no stretch of imagination be termed as fully reliable witness, and as such, in our considered opinion, it would be very unsafe to rely upon the oral testimony of PW-2 & PW-3. Apparently there is no other evidence to support the prosecution case and in absence of any other evidence, in our considered view, it would be highly unsafe to record conviction of the appellant on the basis of the oral testimony of PW-2 & PW-3. Apparently there is no other evidence to support the prosecution case and in absence of any other evidence, in our considered view, it would be highly unsafe to record conviction of the appellant on the basis of the oral testimony of PW-2 & PW-3. We also take note of, that according to PW-9, the axe was seized from the house of the accused on being shown by him. Whereas, the PW-4 categorically stated, that he took away the axe from the place of occurrence to his house, which he handed over to police later on. Though, PW-9 stated that the axe being the weapon of offence was stained with blood, it was not sent for forensic examination, nor produced before the court. 16. Though the victim being an old man of 70 years met with an unfortunate homicidal death, having scanned the evidence in its totality as discussed hereinabove, we are of the considered opinion, that prosecution has not been able to establish the charge against the appellant beyond reasonable doubt, inasmuch as, the prosecution evidence hopelessly falls short of proving the charge against the appellant beyond reasonable doubt, and as such, the conviction and sentence of the appellant cannot be sustained. Accordingly, we set aside the conviction and sentence of the appellant giving him the benefit of doubt. 17. Appeal stands allowed. 18. The appellant be set at liberty forthwith if not required in any other case. 19. Send back the record.