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2020 DIGILAW 4 (GAU)

Abdul Awal v. State of Assam

2020-01-02

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 03.08.2017 passed by the learned Addl. Sessions Judge (FTC), Darrang, Mangaldoi in Sessions Case No. 13(DMFT)/2012. By the said judgment, the learned Sessions Judge convicted the appellants under Section 147/148/302/149/323/324/325 IPC and sentenced them to imprisonment for life under Section 302 IPC and fine of Rs. 3,000/- with default stipulation. The appellants were also sentenced to imprisonment for six months each under Section 147/148/323 IPC respectively and imprisonment for one year under Section 324 IPC with varied amount of fines. 3. As per the prosecution case, on 13.01.2005, at about 7 PM, when the deceased Hakimuddin, Lokman Ali (PW-7), Fazal Haque (PW-11), Suleman Ali (PW-3), Hasen Ali (PW-5) and Habibor Rahman (PW-6) were discussing regarding a marriage in the house of Khalilur Rahman (PW-8), Hasen Ali was stabbed by someone from outside the house. Thereafter all the five accused persons named in the FIR entered the house and dragged the victim Hakimuddin to a nearby maize cultivation, where they assaulted him, causing injuries by various weapons, like dao, dagger etc. and the victim Hakimuddin succumbed to the injuries. PW-1, Amjad Ali lodged the FIR (Ext. 1), on the basis of which, police registered Mangaldoi PS. Case No. 10/2005 under Section 147/148/149/326/302 IPC and commenced investigation. During investigation, police recorded the statements of the witnesses under Section 161 Cr.P.C. and prepared inquest report, sent the body of the deceased for postmortem examination and got the statements of some of the witnesses recorded under Section 164 Cr.P.C. The postmortem examination was conducted by Dr. Brojendra Bhattacharjee (PW-10). 4. The Autopsy doctor (PW-10) found the following injuries: "i) Lacerated injury over the forehead. Size 7.5 cm x 2.5 cm x 2 cm. (ii) Incised looking wound over both forearm and around the elbows size 5 cm x 7.5 x 2.5 cm deep to the bone. (iii) Incised looking wound over both cheeks size 5 cm x 2 cm x 2 cm up to mouth cavity. (iv) Deep cut injury over the neck exposing the larynx and esophagus also cutting the deep vessels of the neck. Size 7.5 cm x 7.5 cm x 5 cm. (iii) Incised looking wound over both cheeks size 5 cm x 2 cm x 2 cm up to mouth cavity. (iv) Deep cut injury over the neck exposing the larynx and esophagus also cutting the deep vessels of the neck. Size 7.5 cm x 7.5 cm x 5 cm. (v) Deep penetrating wound over the chest at the parasternal area of right chest. Size 5 cm x 2 cm x 2 cm. In the opinion of the doctor, the death of the victim was caused due to hemorrhage and shock as a result of the injuries sustained. 5. On completion of the investigation charge sheet was laid against the 6 accused persons including the present appellants. However, one of the charge sheeted accused, namely, Barek Ali absconded and eventually the present appellants stood trial. 6. In course of trial, charges under Section 147/148/149/323/324/325/302 IPC were framed against the appellants, to which, they pleaded not guilty. In order to establish the charges, the prosecution examined as many as 14 witnesses. On appreciation of evidence, learned Sessions Judge convicted the appellants under Section/147/148/148/323/302 IPC and awarded sentence as indicated above. 7. We have considered the submissions made by the learned counsel for the appellants and the learned Addl. P.P., Assam, for the respondents and scrutinized the evidence and materials brought on record. 8. On our assessment of the evidence, we find that there were 6 eye witnesses being PW-3, PW-4, PW-5, PW-6, PW-7 & PW-11, out of whom, PW-11 was declared hostile and rest of the oral witnesses including PW-1, the informant, were reported witnesses. However, learned trial court basically relying on the oral testimonies of PW-3 & PW-4 recorded the conviction of the appellants. 9. PW-5, Hasen Ali; PW-6, Habibor Rahman and PW-7, Lokman Ali, all of whom were eye witnesses of the occurrence and present at the scene of occurrence deposed, that the faces of the miscreants, who inflicted injuries to the victim, leading to his death, were covered with cloth and therefore, they could not recognize any of the assailants. However, PW-3, upon whom learned Sessions Judge heavily relied, to record conviction of the appellants, deposed that at about 7 PM, he along with the deceased Hakimuddin, Fazal (PW-11), Hasen (PW-5), Lokman (PW-7) and Habibor (PW-6) were discussing about the marriage of one Suhagi, daughter of Sajiram. However, PW-3, upon whom learned Sessions Judge heavily relied, to record conviction of the appellants, deposed that at about 7 PM, he along with the deceased Hakimuddin, Fazal (PW-11), Hasen (PW-5), Lokman (PW-7) and Habibor (PW-6) were discussing about the marriage of one Suhagi, daughter of Sajiram. When the discussion was going on, someone pierced a dagger from outside the house and thereafter the accused Osman, Awal and Barek entered the house and started assaulting the deceased Hakimuddin with dao and dragged him out of the house. When he tried to resist them, the accused Osman hit him with a dao on his head. He further deposed that the accused Habel, Kabel and Siddique were standing in front of the door. He also stated that the accused persons dragged Hakumuddin to the nearby Maize cultivation, where they hacked him. In his statement recorded under Section 161 Cr.P.C., he, however, did not state that Habel, Kabel and Siddique were standing outside the house. He also admitted in his cross examination that faces of the accused persons were covered with cloths. Of course, he denied the defence suggestion that he could not recognize the accused persons. 10. Although, PW-3 stated in his evidence-in-chief that he could recognize all the assailants and even attributed the specific overt act to each of the individual accused, there is nothing in his evidence as to how he could identify the accused persons, who were admittedly covering their faces with mask, for which all other eye witnesses present at the scene, failed to recognize any of the assailant. True it is, a person can also be identified by his voice, manner of walk, talking or peculiar feature of gait, when the person is known, and if the court is satisfied about such identification, there is no bar in basing conviction on such identification. Evidently, the assailants entered the room all of a sudden and started assaulting the victim and dragged him away by creating a panic situation, forcing the eye witnesses present in the scene of occurrence to leave the room. There was no evidence that the miscreants uttered any words or had any conversation among them or with the victim and the occurrence took place at night. There was no evidence that the miscreants uttered any words or had any conversation among them or with the victim and the occurrence took place at night. PW-8 stated in his evidence that he was also in the house with the other eye witnesses and left the house to bring his buffaloes from the field and when he reached the place of occurrence immediately after the occurrence and asked the eye witnesses about the assailants, all of them stated that they could not identify the accused as they were covering their faces with cloth, meaning thereby even PW-3 did not tell the PW-8 immediately after the occurrence that he could recognize the assailants. 11. We also noticed that PW-3 is closely related to the victim. When all the independent witnesses, who were admittedly present at the place of occurrence along with PW-3, could not recognize any of the assailants and none of them including PW-3 has reported to the PW-8, who arrived the place of occurrence immediately after the occurrence, regarding identification of any of the accused persons, the testimony of PW-3 that he could recognize all the accused persons including their individual overt act, despite their faces being covered with cloths appears to be highly improbable. Therefore, in our considered opinion, the oral testimony of PW-3, who claimed to have recognized all the accused persons inspite of their faces being covered is hardly worthy of inspiring confidence. 12. PW-4, Alimuddin deposed that at about 7/7.30 PM, when he was proceeding to the house of Lokman Ali to call Hakimuddin (deceased), he heard hue and cry there and immediately he rushed to the place of occurrence and saw that the accused Habel, Kabel, Siddique, Barek, Osman and Awal dealing blows to the deceased Hakimuddin with dagger, spike etc. He further stated to have seen the accused persons lifting the deceased by holding his hands and legs out of the house and accused Osman hitting on the neck of the victim with dao. He further stated that hearing alarm raised by him, other people arrived the place of occurrence. He further stated to have seen the accused persons lifting the deceased by holding his hands and legs out of the house and accused Osman hitting on the neck of the victim with dao. He further stated that hearing alarm raised by him, other people arrived the place of occurrence. During cross examination he even went on saying that PW-5, Hasen Ali, PW8, Khalil and PW-6, Habibor came to the place of occurrence later on, upon hearing alarm raised by him, whereas consistent evidence of all the eye witnesses including PW-3 was that PW-5 & PW-6 were there at the place of occurrence from before the occurrence. The statement of this witness was also recorded under Section 164 Cr.P.C. What we notice is that his evidence in court is also inconsistent with his previous statement recorded under Section 161 Cr.P.C. and Section 164 Cr.P.C., inasmuch as, in his statement before police, statement recorded under Section 164 Cr.P.C. and his evidence in court he sought to project different stories as to how he reached the place of occurrence. 13. PW-8 stated that hearing scream from his house, he rushed to the place of occurrence and found the deceased lying dead on the ground on the western side of the house. Upon quarry made by him, as to who had caused the death of the deceased, no one, who were present at the place of occurrence could say as to who committed the offence, as the assailants were covering their faces with mask. In cross examination, this witness has stated that PW-4 Alimuddin came along with him to the place of occurrence. Thus, from the evidence of PW-8, it is apparent that PW-4 arrived the place of occurrence after the departure of the assailants. If the evidence of PW-8 is believed, then PW-4, Alimuddin did not have the occasion to witness the occurrence. The oral testimony of PW-8 that PW-4 arrived after the occurrence was over and the assailants had left, was further corroborated by the PW-5, PW-6 & PW-7, who were admittedly eye witnesses of the occurrence, as all of them stated in unambiguous term that Alimuddin (PW-4) came later, after the occurrence. The oral testimony of PW-8 that PW-4 arrived after the occurrence was over and the assailants had left, was further corroborated by the PW-5, PW-6 & PW-7, who were admittedly eye witnesses of the occurrence, as all of them stated in unambiguous term that Alimuddin (PW-4) came later, after the occurrence. Thus, the inconsistent statement of the PW-4 at different stages, coupled with the oral testimony of the eye witnesses i.e. PW-5, PW-6 & PW-7 as well as PW-8 crystallizes that PW-4 did not have the opportunity to witness the occurrence. Evidently this witness PW-4 is also closely related to the victim. Therefore, in our considered view, although PW-4 projected himself to be an eye witness, no credibility can be attached to the oral testimony of this witness. 14. Once, the evidences of PW-3 & PW-4 are discarded, the prosecution is left with no other evidence to support its case. The, PW-5, PW-6 & PW-7, who were also admittedly eye witnesses and were present at the place of occurrence, deposed that they could not recognize the assailants as their faces were covered and the occurrence took place at night and the testimony of these three eye witnesses was very much consistent and coherent throughout the proceeding. However, learned trial court did not consider the testimony of these three witnesses. It is of course, not necessary for the court to accept the testimony of a witness unless it stands the test of truth. But when the prosecution relies on the witnesses, some of whom support the prosecution and some do not, the court, obviously can rely on some of them and reject the others. But in that case, court is obliged to record reasons for accepting or rejecting a piece of evidence, which is called appreciation of evidence. What we notice is that learned trial court has not even spent a single word, to say, as to why the oral testimony of the PW-5, PW-6 & PW-7 were excluded from consideration. The consistent and unshaken evidence of the PW-5, PW-6 & PW-7, who were admittedly eye witnesses was that they could not recognize the assailants because of their faces being covered. The consistent and unshaken evidence of the PW-5, PW-6 & PW-7, who were admittedly eye witnesses was that they could not recognize the assailants because of their faces being covered. This being the position, we are of the considered opinion that the prosecution evidence in the instant case was grossly inadequate to bring home the charges against the appellants beyond reasonable doubt or the accused persons are atleast entitled to benefit of doubt and as such, the conviction and sentence of the appellant cannot be sustained. Accordingly, we set aside the impugned judgment of conviction and sentence of the appellant. 15. The appeal is allowed. The appellants be released and set at liberty forthwith, if not required in any other case. 16. Send down the LCR.