Research › Search › Judgment

Gauhati High Court · body

2020 DIGILAW 29 (GAU)

Robial Hoque v. State of Assam

2020-01-08

MANISH CHOUDHURY, MIR ALFAZ ALI

body2020
JUDGMENT : Mir Alfaz Ali, J. 1. Heard Mr. H.R.A. Choudhury, learned Sr. Counsel, assisted by Mr. Azad Ahmed, learned counsel for the appellants and Ms. S. Jahan, learned Addl. P.P., Assam for the respondents. 2. This appeal is directed against the judgment and order dated 08.05.2018, passed by the learned Sessions Judge, Dhubri, in Sessions Case No. 220/2014. By the said judgment, the learned Sessions Judge convicted the appellants under Section 148/302 IPC R/W 149 IPC and sentenced them to imprisonment for life and fine of Rs. 10,000/- with default stipulation under Section 302 IPC. The appellants were also sentenced to rigorous imprisonment for three years and fine of Rs. 1,000/- with default stipulation under Section 148 IPC. 3. As per the prosecution case, on 21.08.2009, at about 8 PM, when the victim Minarul Hoque, nephew of the PW-1 was coming home from the house of his maternal uncle, all the accused persons named in the FIR attacked him on the road and inflicted injuries by various weapons, like, dao, dagger, lathi etc. The injured was admitted to hospital on 22.08.2009, where he succumbed to the injuries. PW-1, Abu Taleb Mondol lodged the FIR (Ext. 1), on the basis of which, police registered South Salmara P.S. Case No. 135/2009 under Section 147/148/149/302 IPC and commenced investigation. During investigation police recorded statement of witnesses and seized one iron frame used for making concrete post. The post mortem examination on the body of the victim was already conducted by Dr. Bijoy Bhattacharjee in connection with South Salmara P.S. Case No. 17/09 even prior to lodging the FIR. The investigating officer collected the post mortem examination report and on completion of the investigation laid the charge sheet against all the FIR named accused persons and eventually the present appellants and one Nazrul Islam and Ramez Ali stood trial. 4. In course of trial, charges under Section 148/302 IPC R/W 149 IPC were framed against the appellants, to which, they pleaded not guilty. In order to establish the charges, the prosecution examined as many as 21 witnesses. On appreciation of evidence, learned Sessions Judge convicted the appellants under Section 148/302 IPC R/W 149 IPC and awarded sentence as indicated above. 5. We have considered the submissions made by the learned counsel for the appellants and the learned Addl. In order to establish the charges, the prosecution examined as many as 21 witnesses. On appreciation of evidence, learned Sessions Judge convicted the appellants under Section 148/302 IPC R/W 149 IPC and awarded sentence as indicated above. 5. We have considered the submissions made by the learned counsel for the appellants and the learned Addl. P.P., Assam, for the respondents and also meticulously scrutinized the evidence and materials brought on record. 6. On our assessment of the evidence and perusal of the impugned judgment, we find that the learned Sessions Judge basically relying on the oral dying declaration as deposed by PW-1, PW-2, PW-3 & PW-15 and the oral testimony of PW-13 & PW-14, who claimed to be eye witnesses of the occurrence and the medical evidence of PW-17, recorded the conviction of the appellants. 7. PW-1, Abu Taleb, deposed that on 21.08.2009, his nephew Minarul Hoque (deceased) went to the house of his maternal uncle along with Hannan Mondol (PW-2) at about 7 PM. When he was coming back, the accused persons assaulted him with various weapons, like rod, dagger, lathi etc. and thereby inflicted multiple injuries. Having seen the occurrence, PW-2, who was accompanying the deceased, came in a run and informed him about the occurrence and immediately he rushed to the place of occurrence. He further stated, that upon reaching the place of occurrence, he came to know, that the victim Minarul was already taken to police station by the police. He further stated, that on the next morning, on 22.08.2009, he visited the police station. According to him, when Minarul was shifted to hospital from the police station for better treatment, he accompanied the victim and at that point of time, the victim Minarul informed him about the occurrence and also told the names of the accused persons. On the same day, Minarul died at about 5 O'clock. During cross examination, he admitted that he did not see the occurrence. He also stated that the place of occurrence was at a distance of 5/6 kilometer from his house. During cross examination, he again admitted that he did not mention about the dying declaration in the FIR. 8. PW-2, Hannan Mondol stated, that while he was coming along with Minarul (victim), from the house of Minarul's maternal uncle, some people confronted them at Baraikandi village and started assaulting Minarul. During cross examination, he again admitted that he did not mention about the dying declaration in the FIR. 8. PW-2, Hannan Mondol stated, that while he was coming along with Minarul (victim), from the house of Minarul's maternal uncle, some people confronted them at Baraikandi village and started assaulting Minarul. Out of fear, he had fled away from the place of occurrence and reached the house of PW-1 and informed him about the incident. He further stated, that on the following morning, he went to the police station, where he found the victim lying in injured condition. He also stated that on being asked by him, the victim Minarul told, that Robiul, Kasem, Nasiyat, Johirul and some other persons assaulted him. During the cross examination, he admitted that at the time of occurrence, he could not recognize any of the assailant due to darkness. 9. PW-3, Mohalom Islam stated that he was informed by the uncle of Minarul (deceased) at about 4.30 AM on 21.08.2009, that some villagers of Baraikandi village assaulted Minarul. At about 6.30 AM, he went to South Salmara Police Station and came to know that in the meantime, the victim Minarul was shifted to South Salmara Primary Health Centre. After some time, Minarul was again brought to the police station and on being asked by him at the police station, Minarul told that Kashem, Nosiot and Jahirul of Boraikandi had assaulted him. He also stated to have seen injuries on the body of the victim. 10. PW-13, Mahatab Hussain deposed, that at about 9.30 PM on 21.08.2009, having heard hue and cry, he came to the house of PW-1, Abu Taleb Mondol, who told him, that 4/5 persons had assaulted Minarul. He along with Mozidur Rahman (PW-14) went to the place of occurrence and had seen, that Minarul was tied with a tree at the courtyard of Zakir Hussain's house. He also stated to have seen Rabiul assaulting Minarul with rod and Nazrul by means of the blunt side of a machete. He also stated to have seen accused Nasiyat and Zahirul assaulting the victim with sticks. During the cross examination, he stated that he reached the place of occurrence at about 12 at night. He also stated to have seen Rabiul assaulting Minarul with rod and Nazrul by means of the blunt side of a machete. He also stated to have seen accused Nasiyat and Zahirul assaulting the victim with sticks. During the cross examination, he stated that he reached the place of occurrence at about 12 at night. PW-14 also stated in the same tune, that at about 11 PM, while he was standing in front of his house, he had seen Hannan raising hue and cry in connection with assault on Minarul Hoque by the accused persons. Having learnt about the occurrence, he along with PW-13 went to the place of occurrence and found that Minarul was tied to a mango tree in the courtyard of Zakir Hussain's house. He also stated to have seen Rabiul assaulting Minarul with iron rod and Najrul by the blunt side of machete. According to him, Hasem, Kashem, Sonowar, Jahirul and Nasiyat were assaulting Minarul by means of stick. In cross examination, he stated that the deceased Minarul was his brother-in-law. During cross examination, he also stated, that he reached the place of occurrence at about 1.30 am in the intervening night of 21st and 22nd July. He further admitted during cross examination that he deposed in court as tutored by PW-1, Abu Taleb Mondol. 11. PW-9, Jarina Bewa stated, that her son Zakir Husain was killed and the victim Minarul (deceased) was accused in the said case. She also stated that Minarul entered the house of her daughter-in-law with a knife in his hand and threatened her to withdraw the case, else she would be killed. When her daughter-in-law raised alarm, villagers caught the victim Minarul and handed over him to police. During cross examination it was elicited that the victim Minarul was an accused in the case for committing murder of her son Zakir. 12. PW-18 (Sukumar Roy) & PW-19 (Illias Choudhury), both being police constables, stated, that on 22.08.2009, they were posted at South Salmara Police Station as constables. On that day, both of them were with the victim Minarul and they brought the injured Minarul Hoque from South Salmara Police Station to Dhubri Civil Hospital for treatment. During cross examination, it was elicited from PW-19, Illias Ali, that all along he was with the victim Minarul and Minarul was unable to speak. On that day, both of them were with the victim Minarul and they brought the injured Minarul Hoque from South Salmara Police Station to Dhubri Civil Hospital for treatment. During cross examination, it was elicited from PW-19, Illias Ali, that all along he was with the victim Minarul and Minarul was unable to speak. He further stated that the victim did not tell as to who assaulted him. PW-4, PW-5, PW-6 PW-7, PW-8, PW-10, PW-11 and PW-12 pleaded ignorance about the occurrence. 13. PW-17 was the autopsy doctor Bijoy Bhattacharjee. The PW-17 stated that he conducted the post-mortem examination on the body of the deceased Minarul on 23/8/09 in connection with South Salmara P.S. Case No. 17/2009 and found the following injuries: 1. A male healthy dead body of average built was examined. 2. Rigor mortis present. Pale. 3. Multiple small wounds on lower limbs and upper limb with no blood. 4. Laceration on scalp over vertex. 5. Scalp injuries over vertex with fractured skull. 6. Laceration of upper part of membrane with blood in between membranes. 7. Blood present in right side brain matter. 8. Spinal cord intact. 9. There was fracture of both bones on right leg. In the opinion of the doctor the death was due to head injury and shock due to injuries sustained by the deceased, which were ante-mortem in nature. 14. A dispassionate scrutiny of the oral testimony of these witnesses would show, that immediately after the occurrence, PW-2 Hannan Mondol, informed the PW-1, the informant, about the occurrence and PW-1 immediately rushed to the place of occurrence and found that the victim was already shifted to police station. Evidently, PW-13 went to the place of occurrence having learnt from the PW-1 regarding the occurrence. PW-14 also stated that he and PW-13 went together. If the evidence of PW-1, the first informant and uncle of the deceased is accepted, then, PW-13 & PW-14 could not have seen the occurrence, inasmuch as, the deceased was already shifted to the police station. Although, PW-13 & PW-14 have stated that the deceased was assaulted in the courtyard of Zakir Hussain by fastening him with a tree, according to the Investigating Officer and the sketch marp (Ext. Although, PW-13 & PW-14 have stated that the deceased was assaulted in the courtyard of Zakir Hussain by fastening him with a tree, according to the Investigating Officer and the sketch marp (Ext. 4), the occurrence did not take place at the courtyard of Zakir Hussain, rather the place of occurrence was at the across road (Trijunction) of the village at some distance from the house of Zakir. The cross-examination of the PW-13 & PW-14 further shows, that their testimony as to the time, when they reached the place of occurrence was also inconsistent, though both of them claimed to have gone to the place of occurrence together. Evidently, PW-2, though, claimed to have accompanied the deceased and he informed the PW-1 about the occurrence, surprisingly, PW-1 did not mention in the FIR, about PW-2 accompanying the victim at the time of occurrence. Apparently, PW-2 stated that he did not recognize any of the assailants due to darkness. Therefore, though, PW-14 stated that he heard hue and cry raised by PW-2, stating that accused persons were assaulting the victim, such testimony of the PW-14 is further belied by the oral testimony of the PW-2, who deposed in unambiguous term that out of fear he ran away and could not recognize the assailants and he could know about the assailants only on the next day. Thus, the evidence of PW-1 & PW-2 and all the glaring inconsistencies in the evidence of PW-13 & PW-14 belies the claim of the PW-13 & PW-14 that they had seen the occurrence. Therefore, in our considered opinion, no credibility can be attached to the oral testimony of the so-called eye witness PW-13 & PW-14. Once the testimony of PW-13 & PW-14 is disbelieved, prosecution remains with no other evidence, except the oral testimony of PW-1, PW-2, PW-3 & PW-15, who have deposed about the oral dying declaration, upon which learned trial court heavily relied. 15. PW-1, Abu Taleb Mondol stated that on 22.08.2009, when he visited the police station, he had a talk with the victim Minarul and in course of such conversation, Minarul informed him about the incident and also told the names of the accused persons. 15. PW-1, Abu Taleb Mondol stated that on 22.08.2009, when he visited the police station, he had a talk with the victim Minarul and in course of such conversation, Minarul informed him about the incident and also told the names of the accused persons. PW-2 stated that when he went to the police station on the next morning, he found that Minarul was in injured condition and on being asked by him, the victim Minarul told, that he was assaulted by Robiul, Kasem, Nasiyat, Johirul and some other persons. PW-3 also stated in the same tune, that when he met the victim in the police station, the victim told him that Kashem, Nosiot and Johirul of Baraikandi village had assaulted him. PW-15 stated that he had come to know from Minarul, at the police station, that the accused persons assaulted him. 16. It is no doubt true that the oral dying declaration if stands the test of truth and voluntariness and found to be unblemished, there is no bar in recording conviction on such oral dying declaration. One must bear in mind, that the oral dying declaration is inherently a very weak kind of evidence and therefore, unless, the court gets hundred percent assurance, that what is stated in the oral dying declaration is the unalloyed truth, and free from any suspicion or blemish, it would be unsafe to base conviction on such oral dying declaration, without any independent corroborative evidence. It is also pertinent to mention that oral dying declaration certainly stands on a different footing and as such, besides proving the oral dying declaration, prosecution is also under obligation to adduce some evidence to show that the declarant was capable to speak, more particularly, when the death occurred within a short time of the dying declaration. 17. In Waikhom Yaima Sing Vs. State of Manipur reported in 2011 Crl J 2673 : (2011) 4 Scale 718 , the Apex Court held that if the exact words uttered by the deceased are not available, then dying declaration cannot be relied upon. In Nallapattai Sivaiah Vs. SDO reported in (2007) 15 SCC 465 , the Apex Court observed that it is unsafe to record conviction on the basis of a dying declaration alone in a case where suspicion is raised as regards the correctness of the dying declaration. 18. In Nallapattai Sivaiah Vs. SDO reported in (2007) 15 SCC 465 , the Apex Court observed that it is unsafe to record conviction on the basis of a dying declaration alone in a case where suspicion is raised as regards the correctness of the dying declaration. 18. What we notice in the instant case is that, although, PW-1, PW-2, PW-3 & PW-5 deposed regarding dying declaration, the testimony of these four witnesses, does not appear to be consistent with regard to the contents of the dying declaration. According to PW-1, he had talked with the victim and the victim informed him about the occurrence and also mentioned the names of the accused persons. This witness has not stated the actual words uttered by the victim. According to PW-15, Minraul told that the accused persons assaulted him, meaning thereby, the victim did not mention any name nor the PW-15 disclosed the actual words uttered by the victim. According PW-3, the victim told, that three persons, namely, Kasem, Nasiyat and Johirul of Baraikandi village assaulted him, whereas according to PW-2, the victim stated that accused Robiul, Kasem, Nasiyat and Johirul and some other persons assaulted him. What therefore has emerged from the oral testimony of these four witnesses, deposing about the oral dying declaration is that there were four oral dying declaration allegedly made to four witnesses and all of them differ with each other with regard to the contents of the dying declaration. Apparently, no evidence has been adduced to show, that the victim was in a position to speak. Whereas, PW-18 & PW-19, the police constables who were all along with the victim from the police station to the hospital stated, that the victim did not utter any words. It was also stated by PW-19, that the victim Minarul was unable to speak and he did not tell as to who assaulted him. Thus, the evidence of PW-18 & PW-19 coupled with the inconstant statements of PW-1, PW-2, PW-3 & PW-15 with regard to oral dying declaration, speaks loud and clear, that the testimony of PW-1, PW-2, PW-3 & PW-15 as to dying declaration is hardly inspiring confidence or atleast the dying declaration as deposed by the aforementioned four witnesses can by no stretch of imagination be held to be without any blemish or suspicion. In view of the above facts and circumstances, in our considered opinion, no credibility can be attached to the so called dying declaration as deposed by PW-1, PW-2, PW-3 & PW-15. 19. We also take note of the oral testimony of the PW-9, who deposed, that her daughter-in-law lodged a criminal case for murder of her son and in the said case, the victim Minarul was an accused. She further deposed that on the day of occurrence, in the evening, Minarul trespassed into the house of her daughter-in-law and threatened her to withdraw the case, else she would be killed. When she raised hue and cry, villagers assembled and handed over the victim Minarul to the police. The evidence of PW-17, Dr. B. Bhattacharjee also lent support to the testimony of the PW-9, inasmuch as, according to PW-17, the autopsy doctor, the postmortem examination of the victim Minarul was conducted in connection with Salmara P.S. Case No. 17/2009 under Section 164/302 IPC on 23.08.2009, even before lodging of the FIR of the present case. Evidently, in the evening of the occurrence, the victim was taken to the police station wherefrom he was taken to hospital where he died. Admittedly, the PW-1, PW-2 & PW-3 went to the police station in the next morning of 22.08.2009 and found the victim Minarul in injured condition, who died on the same day. The prosecution witnesses, more particularly, PW-1, PW-2, PW-3 & PW-15 also claimed that the victim made dying declaration, but surprisingly enough, no FIR was lodged till 24.08.2009. Even inquest of the dead body was not conducted in the instant case as would appear from the oral testimony of the Investigating Officer. Thus, the oral testimony of PW-9 & PW-17 and the conduct of the informant or the complainant party in not lodging the FIR till 24-08-09 crystalises that the prosecution either sought to suppress the real genesis of the occurrence, or they were not telling the truth before the court, inasmuch as, if the evidence of PW-9 which is also supported by medical evidence is believed, their evidence tend to belie the prosecution story sought to be projected in the FIR and as deposed by PW-1, PW-2, PW-3, PW-13, PW-14 & PW-15. As already indicated above, the oral testimony of so called eye witnesses PW-13 & PW-15 is not reliable. As already indicated above, the oral testimony of so called eye witnesses PW-13 & PW-15 is not reliable. The dying declaration sought to be projected by PW-1, PW-2, PW-3 & PW-15 are also found to be unreliable. Thus falsity of the so called dying declaration and the oral testimony of PW-13 & PW-14 coupled with the evidence of PW-9 & PW-17 demonstrating that the prosecution has sought to suppress the real genesis of the occurrence, crystallizes that the prosecution has measurably failed to establish the charges against the appellants beyond reasonable doubt and as such, the conviction and sentence of the appellants cannot be sustained. Accordingly, we set aside the impugned judgment of conviction and sentence of the appellants. 20. The appeal is allowed. The appellants be released and set at liberty forthwith, if not required in any other case. 21. Send down the LCR.